author: CULLEN, J.

text:
    Ann Gallagher v. Eleanor A. Quinlan.
    (Supreme Court, Appellate Division, Second Department.
    Nov. 20, 1896.)
    Wills—Description op. property—Mistake.
    A devise of house and lot “ No. 97 Oakland street” will pass testator’s house and lot, “No. 79 Oakland street,” when heowned no other real estate.
    Controversy between Ann Gallagher and Eleanor A. Quinlan as defendant, submitted without action on an agreed state of facts, to determine the title to real estate.
    John R. Farrar, for plaintiff; Charles R. Halsey, for defendant.
   CULLEN, J.

—On March 21, 1891, Thomas Gallagher died, seised in fee simple of the premises known as “ Ho. 79 Oakland street,” in the city of Brooklyn. By his will, duly proved, Gallagher devised to the plaintiff his house and lot, “Ho. 97 Oakland street, Brooklyn.” Gallagher neither at the time of his death, nor at any other time, owned any other real estate than said plot, Ho. 79 Oakland street. The plaintiff entered into a contract with the defendant for the sale of the premises 79 Oakland street. The defendant refuses to "carry out the contract, on the ground that the plaintiff has not a good title to the premises agreed tó be sold. The sole question presented on this submission is whether, under the devise of the testator’s house and lot Ho. 97 Oakland street, the, house and lot 79 Oakland street passed. The general rule applicable to errors of the kind that has occurred in this will is, “ Falsa demonstratio non nocet.” As to this rule it is said by Mr, • Jarman':

“ It means that where the description is made up of more than one part, and one part is true, but the other false, there-if the part which is true describe the subject with sufficient legal certainty, the untrue part will be- rejected, and will not-vitiate the devise.” 1 Jarm. Wills, 742.

So in Day v. Trig, 1 P. Wms. 286, where one devised all his-freehold houses in Aldersgate street, London, having in fact only leasehold houses there, it was held that the word “ freehold ” should be rejected, and that the leasehold houses should pass. In Pacy v. Knolls, 8 Vin. Abr. 277, it was held that a devise of houses and lands lying in the parish of Billing, and. in a street called “ Brook’s Street,” was a good devise of lands in Billing street, the testator having no lands in the parish of Billing. In Patch v. White, 117 U. S. 210, 6 Sup. Ct. 617, 710, the testator devised lot No. 6 in square 403, in the city of Washington, together with the improvements thereon erected. It was shown that the testator never owned lot No. 6 in square 403, but did own lot 3 in square 406, and also that lot 6 had no improvements on it, while lot 3 in square 406 had thereon a dwelling house occupied by the testator’s tenants. It was held that, under the devise, lot 3 in square 406 passed. In Govin v. Metz, 79 Hun, 461, 61 S. R. 271, the testator devised “ the house and lot marked with the number 204 Lexington avenue,” in the city of Neiv York. The testator never owned 204 Lexington avenue, nor any other house and lot on that avenue, except No. 738. It ivas held that, under the devise, No. 738 Lexington avenue passed. The rule stated by Mr. Jarman plainly controls the disposition of this case. Éliminating the word and figures “ No. 97,” there is a sufficient designation and description of the premises devised as the testator’s house and lot on Oakland street, in the city of Brooklyn. There can be no doubt that the testator intended to devise the only piece of real estate he owned, on that street or elsewhere. The error that has crept into the street number is easily explained. There has been a mere transposition of figures, and “97” written instead of “ 79.” This error can cast no doubt on the testator’s intent.

There should be judgment for the plaintiff on the submitted case, but, under the terms of the stipulation, without costs.

All concur.


source: Caselaw Access Project

author: McADAM, J.

license: Public Domain

text:
    Catherine Ewald v. American News Co.
    (Supreme Court, Appellate Term, First Department.
    November 25, 1896.)
    Appeal—Sufficiency of evidence.
    A finding of fact on conflicting evidence will not be disturbed on-appeal.
    Appeal from Eleventh district court.
    Action by Catherine Ewald against the American News Company. There was a judgment in favor of plaintiff, and defendant appeals.
    Thompson & Patterson (John Patterson, of counsel), for appellant; C. J. Kracht, for respondent.
   McADAM, J.

—On April 20, 1896, plaintiff’s son was driving a horse attached to a coupé rockaway, in which the plaintiff was seated, along the easterly side of 7th avenue, in a northerly direction. They had reached and passed the corner of 125th street, when, a cable car, bound east, approached, and the plaintiff’s horse and carriage, being then between the first, or southesly, track in 125th street and the curb of said street, stopped, and remained standing, to permit the car to pass. While thus standing still, the driver of defendant’s wagon, who was driving behind plaintiff’s carriage at a distance of about 10 feet, and from 2^ to 3 feet west of plaintiff’s carriage, drove the horse attached to the wagon in such a manner that in turning the corner of 7th avenue and 125th street, and going easterly, the left shaft of defendant’s wagon struck the plaintiff’s carriage on the westerly side, and ran through the side panel, causing the damage complained of. Immediately after the accident, an officer arrested the defendant’s driver, and upon his promise to pay the damage he was discharged. The defense is that the plaintiff’s son stopped the coupé suddenly, and backed up, thereby backing against the side of the shaft of defendant’s wagon, and doing the damage complained of. The defendant’s proof on this subject is both unsatisfactory and improbable. At all events, the facts stated by its witnesses were denied by the plaintiff and her witnesses, and the question became one of fact, on which the finding of the justice is conclusive. According to the plaintiff’s testimony (which seems to have been believed by the justice), the case clearly presented negligence on the part of the defendant, and no act on her part contributed to the injury; and the theory of inevitable accident advanced by the defendant furnishes no excuse under the circumstances. It will not do to permit one by his negligent misconduct to get so close to a vehicle as to make an accident inevitable, and then obtain discharge on the ground that the inevitable occurred. If the justice had believed the defendant’s witnesses, and found that the plaintiff’s coupé had backed against the shaft of the defendant’s wagon, the plaintiff would have been without a right of action. Bierback v. Rubber Co., 14 Fed. 826; St. Clair Mineral, Springs Co. v. City of St. Clair, 96 Mich. 463; 56 N. W. 18. Ór, if the cable car had suddenly and without warning stopped the progress of the plaintiff’s coupé, and the defendant, without fault, had run into the coupé, its conduct might have been excused. Mueller v. Railway Co., 86 Wis. 340 ; 56 N. W. 914. But the justice’s finding negatives the existence of any such facts, and does not permit the application of the cases cited. The defendant’s wagon was .going up 7th avenue, behind and west of the plaintiff’s coupé, and was turning easterly into 125th street, when the accident occurred; so that the shaft of the defendant’s wagon was either driven into the plaintiff’s coupé by the act of the defendant’s driver, or the coupé must have moved sideways towards the west (almost an impossibility) -against the shaft. The defendant’s driver does not complain of a sudden stoppage of the plaintiff’s coupé, but a backing up against his shaft; while the plaintiff’s witnesses testify there was no backing up of the coupé ; that it was standing perfectly still when the shaft of the defendant’s wagon ran into it. The case therefore presented a clear question of fact on conflicting evidence. The'justice saw the witnesses, observed their manner of testifying, and was best qualified to determine the question of credibility. O’Dowd v. Bonnell, 17 Misc. Rep. 620 ; 40 N. Y. Supp. 650; Huller v. Wynne, 16 Misc. Rep. 580; 38. N. Y. Supp. 700; Katz v. Wolf, 16 Misc. Rep. 82.

The judgment must be affirmed, with costs.

All concur.


author: BARTLETT, J.

text:
    Matter of Application by George W. Munger et al. to Lay out a Highway.
    (Supreme Court, Appellate Division, Second Department.
    Nov. 20, 1896.)
    Removal of causes—Jurisdiction.
    A county judge who is voluntarily absent from his county at the time set for the hearing of a cause pending in the county court is not “incapable to act” (Code Civ. Proc. § 342), so as to authorize the removal of the cause to the supreme court.
    Appeal from special term, Dutchess County.
    Application by George W. Munger and Samuel Verplank to lay out a highway in the towns of Wappinger and Fishkill, and to assess damages. From an order confirming the report of commissioners in favor of laying out the highway, and from orders and motions to resettle the order of confirmation, James V. Mead and the town of Fishkill appeal. Order denying motion to resettle dismissed. Order affirming report reversed.
    W. Farrington, for appellants; Edgar M. Doughty, for respondents.
   BARTLETT, J.

—This proceeding was duly instituted in the county court of Dutchess county. On July 6, 1896, the county judge made a certificate reciting that a motion to confirm the report of the commissioners had been noticed for July 7, 1896, and declaring that by reason of his being absent from the state of New York, in the state of Maine, whence he would not return until the month of August, 1896, he was incapable to act in the matter. Prior to the time when the motion was returnable in the county court, this certificate was filed in the office of the county clerk. There being no special county judge in Dutchess county, the attorney for the applicants in the proceeding to lay out the highway thereupon obtained an order from Mr. Justice Barnard, returnable in the supreme court at special term in Poughkeepsie, requiring the other parties in interest to show cause why the motion to confirm the report of the commissioners should not be argued on July 11, 1896, and directing that it then be argued if no good cause were shown to the contrary. Upon the return day the supreme court made the principal order which now comes up for review.

The jurisdiction of the supreme court to make that order is asserted under section 342 of the Code of Civil Procedure, which provides in part as follows :

If the county judge is, for any cause, incapable to act in an action or special proceeding, pending in the county court, or before him, he must make, and file in the office of the clerk, a certificate of the fact; and thereupon the special county judge, if any' and if not disqualified, must act as county judge in that action or special proceeding. Upon the filing of the certificate, where there is no special county judge, or the special county judge is disqualified, the action or special proceeding is removed to the supreme court, if it is then pending in the county court; if it is pending before the county judge, it may be continued before any justice of the supreme court within the same judicial district. * * * Thereupon the subsequent proceedings in the supreme court must be the same as if it had originally been brought in that court, except that an objection to the jurisdiction may be taken, which might have been taken in the county court.”

It is objected in behalf of the appellants that this section has no application whatever to a voluntary absence of the county judge from the state. We think this objection is well taken. Section 342 provides for the making of a certificate which shall have the effect of removing the cause of the special county judge if there be one, or to the supreme court only when the county judge is “ incapable to act ” in the action or special proceeding. The section refers to an incapacity relating to a particular action or special proceeding, rather than to a general incapacity to act as a judge at all. Thus, in section 46 of the Code it is provided that a judge shall not sit in- a cause or matter to which he is a party, or in which he has been an attorney or- counsel, or in which he is interested, or if he is related, by consanguinity or affinity, to any party to the controversy within the sixth degree. The phraáe “ incapable to act in an action or special proceeding,” in section 342, contemplates a disqualification of the character mentioned in section 46, or actual physical disability, and does not, in our opinion, extend to a case in which the county judge chooses to be away from the state at a time set for the hearing of an application in the county court. In the matter before us, the county judge of Dutchess county had complete legal capacity to entertain, hear, and determine the motion to confirm the report of the commissioners in reference to the proposed highway. The only obstacle to his doing so was his voluntary absence from the place where the court was to be held, on the 7th day of July, 1896. . He was no more incapable of - acting in the proceeding than any judge would be incapable of acting in a trial who voluntarily remained away from the only jfiace in which he could lawfully hold a trial term, even though he stayed within his own county. It is not such a contingency as this which is contemplated by the section in question. If it Avere, a county judge might divest his court of jurisdiction in scores of cases, simply by making the prescribed certificate upon his departure for a summer vacation in a neighboring state, and could thus compel the supreme court to take them up, and proceed Avith them until the rendition of final judgment in each. A construction is not to be favored under which such consequences are possible. The term incapable ” or “ incapacity ” is seldom used in legislation as inclusive of the idea conveyed by the word “ absent ” or “ absence.” In the constitution of the state of Hoav York it is provided that the powers and duties of the governor shall devolve upon the lieutenant governor “ in case of the impeachment of the governor, or his remoAral from office, death, inability to discharge the poAvers and duties of the said office, resignation, or absence from the state.” Article 4, § 6. Here the term “inability,” Avhich is certainly as broad in its meaning as “ incapacity,” Avas evidently not regarded as broad enough to embrace “ absence.” Section 89 of the highway law (Luavs 1895, c. 716) provides that, within 30 days after the decision of the commissioners shall have been filed in a proceeding to lay out a higkAvay, any party interested in the proceeding may apply to the court, if in session, or to the county judge appointing the commissioners, for an order confirming, vacating or modifying their decision, and such court or judge may confirm, vacate or modify such decision.” If the decision is vacated, another hearing of the matter may be ordered before the same or other commissioners; but, if no such motion is made, the statute declares that the decision of the commissioners shall be deemed final. ■ It appears that the 30 days after the filing of the report herein Avould have expired on July 15, 1896 ; and it is suggested in behalf of the respondents that it Avas essential to their rights that the motion should be heard before the return of the county judge from Maine. But the respondents wanted the decision of the commissioners to stand, and to this end no motion was necessary, for, in the absence of any appli- ' cation, the highway law made that decision final. It is therefore impossible to perceive why it was important to the respondents to bring the case before any court at any time whatever.

Under our view of the proper construction of section 3-12 of the Code, however, the supreme court had no jurisdiction herein, and was without authority to make the order confirming the commissioners’ report. That order must therefore be reversed, with $10 costs and disbursements, and the motion to confirm the report of the commissioners must be denied, for Avant of jurisdiction, with $10 costs. The appeals from the denial of the motion to resettle such order will be dismissed, Avithout costs..

All concur.


text:
    May G. Henderson v. Emily Merrit.
    (Supreme Court, Appellate Division, Second Department.
    Nov. 20, 1896.)
    1. Wills—Suspending power of alienation.
    The power of alienation. is not suspended by a devise to testator’s-widow, which is to become operative when testator’s son reaches a certain age, where the rents and profits in the meantime are also-given to the widow. ,
    2. Same—Conflicting devises.
    A devise of an entire tract of land is subject to a previous devise in the same will of a part of such tract.
    Appeal from special term, Westchester County.
    Action by Mary Q. Henderson against Emily Merritt to-compel the determination of a claim to real estate. There was a judgment in favor of defendant, and plaintiff appeals.
    John H. Clapp, for appellant; Wilson Brown, Jr., for respondent.
   CULLEN, J.

—This —Thisis an action to compel the determination of a claim to real property. The plaintiff and defendant both claim title under the will of Clark S. Merritt, deceased. The plaintiff is his granddaughter, being the daughter of the testator’s daughter Hannah Matilda, and the defendant is his widow. The material parts of the will are as follows:

“ I also direct that my wife be at liberty to occupy the present apartments over my store for a dwelling until my son Clark shall become twenty-one years of age, and receive all the rents of my other real estate and the yearly interest of all my money, except as such rents and interest shall be modified by bequest hereinafter made, in consideration of which she is-to afford a home for all my children until each shall become twenty-one years of age, and support, free of charge, as well as suitable clothing.

“I give and devise unto my wife, Emily, the house and store which I now occupy, together with twenty feet from the south end of the lot occupied by Mrs. Miner, with a right of way thereto as at present used ; this bequest to become opera- - tive when my son Clark shall attain the age of twenty-one years, subject, however, and this bequest is expressly charged with the payment of five hundred dollars to my son Clark when he shall attain the age of twenty-one years. * * *

“ I give and devise unto my daughter Hannah Matilda the Miner place for the term of her natural life, and on her decease to her heirs, forever. This devise is to take effect when she shall attain the age of twenty-one years.”

The premises in dispute are the tract of 20 feet at the south end of the Miner lot.

The appellant first objects to the recovery below, that the devise to the testator’s widow unlawfully suspends the power of alienation, and is void. I confess that I have no very clear conception of the idea of the testator in the clause of the will secondly quoted; but it is not necessary that I should have. His intent in one contingency is unquestionable. On his son Clark reaching the age of 21 years, the devise to the widow was absolute. This is the contingency that has occurred. It is only requisite to ascertain the intention of the testator in other contingencies that might have happened for the purpose of determining whether such intention wrou;d render the devise void. If no reasonable interpretation would invalidate the devise, it is immaterial which of several was his real intention. I can discover none that suspends the power of alienation for any period. The devise to the wife of the rents and Profits until Clark arrived at age vested in her a legal title, t was at all times alienable by her. Bailey v. Bailey, 97 N. Y. 460. If the devise of the fee when Clark became of age was vested, and not subject to be divested by the death of Clark before that time (as I think was the case), this remainder was also always alienable by the widow. If the devise was to be contingent on Clark’s reaching full age, or subject to be divested by his death before that time, then the remainder in that contingency descended to the testator’s heirs at law. They and the widow, acting together, could at any time after the testator’s death convey an absolute title. The devise was therefore good.

The next claim of the appellant is that the devise to the widow and that to the testator’s daughter, Hannah Matilda, are repugnant, and that hence, under the well-established rule in cases of repugnancy, the latter devise in the will must prevail. “But the rule which sacrifices the former of several contradictory clauses is never applied, but on the failure of every attempt to give the whole such a construction as will render every part of it effective.” 1 Jarm. Wills, 475. To same effect, see 1 Bedf. Wills, 448. We think the two devises are not irreconcilable. The first clause is of 20 feet of the Miner place. The second is of the Miner place. Ordinarily, the designation of a tract or farm or plot includes the whole of the plot, and the use of the term in any other sense is not strictly accurate. But the question is not of accuracy of diction, but of the intent of the testator. When he devises to one person a part of a tract, and then to another person the tract, it is apparent that in the latter devise he intends to give only the part of the tract previously undisposed of,— the tract reduced or restricted by the previous devise. This ■seems to me so clear as to forbid elaboration, and is justified by authority. In Holdfast v. Pardoe, 2 W. Bl. 974, the testator devised to Elizabeth Hitchcock her farm in the possession of Charles Bocock, and subsequently in the will devised all her lands in Lowlayton marsh to the children of her uncle, Henry Moore. Part of the Bocock farm lay in Lowlayton marsh. It was held that the devises were not repugnant, and that Elizabeth Hitchcock took the part of the Bocock farm, which lay in Lowlayton marsh. This case is stronger than the one now before us.

The judgment appealed from should be affirmed, with costs. All concur.


author: WILLARD BARTLETT, J.

text:
    John G. Cosgray v. New England Piano Co. of New York.
    (Supreme Court, Appellate Division, Second Department.
    Nov. 20, 1896.)
    Contracts—Consideration.
    Plaintiff, by written contract, agreed to work for defendant for one year from January 1, 1892, at $30 a week. On January 1,1893, lie was. informed that he should continue his services for another year, at §1,800 a year, but he was paid only §30 per week, as before.- In July, 1893, the written contract was renewed by the indorsement: ‘'The above agreement is continued in force till July 7, 1894.” Plaintiff claimed that he was afterwards told that he would be paid $1,800, notwithstanding the renewal. Held, that plaintiff could not recover more than $30 a week from date of the renewal of the written contract, there being no consideration for the oral promise.
    Appeal from trial term, King’s County.
    Action by John G. Cosgray against the New England Piano-Company of New York, to recover salary alleged to be due to-plaintiff from defendant. From a judgment entered on a verdict in favor of plaintiff for $1,448, and from an order denying a motion for a new trial, defendant appeals.
    G. A. Clement, for appellant; William D. Tyndall and George William Hart, for respondent.
   WILLARD BARTLETT, J.

—At the beginning of the year-1892, the plaintiff, then being in the employ of the New England Piano Company, made the following contract with that corporation:

“ New York, January 2, 1892.
“New England Piano Co. of N. Y., 98 Fifth Avenue—Gentlemen : I hereby agree to devote all my time and efforts in the services of the New England Piano Co. of N. Y. from this, date until Jan. 1, 1893, in consideration of a weekly compensation of thirty dollars ($30); New England Piano Co. of N. Y. to pay all my legitimate expenses connected with their-interests. J. Gordon Cosgray.
“Accepted: New England Piano Co. of N. Y.,
“ T. J. Quin, Mgr.”'

According to his own testimony, the plaintiff, on January 1,. 1893, asked Mr. Quin, the manager of the company, for a further contract, and was told by Mr. Quin that he should continue his services for another year, at $1,800 a year. On July 7, 1893, having received only $30 a week up to that time, the plaintiff says he asked Mr. Quin for the back salary which had not been paid, and that he was requested to take a piano* in lieu thereof. On the same day, however, the foregoing contract, dated January 2, 1892, was sent for, and the following memorandum was written upon it, and signed by the plaintiff and Hr. Quin:

“July 7, 1893.
“The above agreement is continued in force till July 7, 1894.
“ J. Gordon Cosgray,
“New England Piano Co. of N. Y.,
“ T. J. Quin, Mgr.”

Subsequently a conversation took place between Mr. Quin and the plaintiff, in which, as the plaintiff tells us, he was assured that he should receive $240 a year “ excess of salary ” over $1,560, payable in two installments, one each six months. This would make $1,800 a year. The additional $240 per annum, however, was never paid. The plaintiff further claims that shortly after July 7, 1894, he called the attention of the new manager of the company, Mr. Dygert, to the fact that his contract had expired, and Mr. Dygert told him that a written contract was unnecessary, and that he might consider himself engaged for another year. He ivas thereafter dismissed'from the service of the defendant, on January 5, 1895, in order to lessen the expenses of the company. In the present suit he seeks to recover the difference between $1,560 a year, which he did receive, and $1,800 a year, which he claims he should have received., for the period between January 1, 1893, and the date of his discharge, and also compensation at the rate of $1,800 per annum from that date to July 7, 1895, when his employment would, in any event, have terminated.

We think there is an insuperable obstacle to the successful prosecution of the plaintiff’s claim for compensation at the rate of $1,800 a year. The written contract of January 2, 1892, terminated on January 1, 1893. Assuming that an oral agreement to pay the plaintiff $1,800 a year was made by Mr. Quin, the manager of the defendant, shortly afterwards, as the plaintiff says there was, that oral agreement came to an end on July 7, 1893, when the previous written contract of January 2, 1892, was, by the execution of the memorandum at the foot thereof, put into force again, and continued until July 7, 1894. The fact that, after the signing of this memorandum, continuing a contract which specified $30 a week as the plaintiff’s compensation, Mr. Quin told him that he should, nevertheless, receive $240 a yéar additional, cannot avail the plaintiff. There was no consideration for this alleged oral agreement. The memorandum already executed bound the plaintiff, on the one hand, to work for $30 a week, and bound the defendant, on the other hand, to employ him till July 7, 1894. As Mr. Justice Brown said in Robinson v. Jewett, 116 N. Y. 40, 53, 26 S. R. 387, the “ performance of an act which a party is under a legal obligation to perform cannot constitute a consideration for a new contract.” The plaintiff’s obligation to serve the defendant from July "7, 1893, to July 7, 1894, was fixed already, and his discharge of the duty thereby imposed upon him could not constitute a consideration for an agreement to pay him more than the amount for which he had already promised to work. The case might be different if the parties had by word of mouth, agreed wholly to abrogate and do away with a pre-existing written contract in regard to service and compensation, and had substituted for it another agreement. But the contention here is that the agreement expressed in the memorandum of July 7, 1893, remained good for every purpose except to fix the plaintiff’s compensation. "We do not think it could thus be modified, because there was no consideration for such modification. As the verdict was based upon a contrary view, the judgment will have to be reversed. It does not follow, however, that the plaintiff may not recover the balance of his salary at the rate of $1,800 a year for the period between January 1 and July 7,1893, and damages for the compensation which he lost, at the rate of $30 a week, by reason of being discharged without justifiable cause before the expiration of his term of employment, if on another trial the jury should find it to be the fact that,„ after the new manager of the company took charge, he told him he- might consider himself engaged for another year.

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

All concur.


author: PATTERSON, J.

text:
    Pauline Sperling v. Boll et al.

    (Supreme Court, Appellate Term, First Department.
    November 20, 1896.)
    Fraud—Proof of false representations.
    False representations to induce á promise by defendant to divide the cost of fixing plaintiff’s sewer, into which defendant’s sewer empties, are not proved by defendant’s testimony that plaintiff said that defendant’s neglect had caused defendant’s sewer to burst, which defendant admitted at the time, though other testimony shows that both were probably mistaken; nor by his testimony that plaintiff stated that she had an estimate made, and that §200 would be the probable cost of the change, when plaintiff denies the same, and defendant’s promise was to pay half the cost, and not any specified sum.
    Appeal from trial term, New, York County.
    Action by Pauline Sperling against Adolph Boll and others. From a judgment entered on a verdict in favor of defendants and from an order denying a motion for a new trial, plaintiff appeals.
    S. Sultan, for appellant; R. M. Sherman, for respondents.
   PATTERSON, J.

—This action was brought to recover one-half the cost of repairs to the sewer of the house No. 246 West Thirty-ninth street, in the city of New York, which house belonged to the plaintiff. The sewer was located under the cellar of that house, but was connected with the drain-pipe of Mo. 244 West Thirty-ninth street, which last-named premises were owned by the defendants. The sewage of the defendants’ house passed into the sewer of the plaintiff’s house, and was discharged therefrom into the main sewer in Thirty-ninth street. Some time in or about the month of March, 1892, it was discovered that a leakage had occurred in or about the sewer and its connections, and it was agreed between the plaintiff and the • defendants that, if the plaintiff would permit the sewer connection between the defendants’ premises and the plaintiff’s premises to remain, the defendants would pay one-half of the cost of removing the sewer on the plaintiff’s premises, which was a brick conduit, and substituting therefor an eight-inch iron pipe. The defendants admit the making of the promise, but claim that they were induced to make it upon certain false representations made by the plaintiff, and that, such representations being false, their promise was without consideration, and they are not liable thereon. The case was submitted to a jury, who found in favor of the defendants; and from the judgment entered upon the verdict, and from an order denying a motion for a new trial, the plaintiff appeals.

The cause of action alleged in the complaint is upon a simple promise only. Much has been said in argument respecting the liability of "the defendants based upon a supposed obligation growing out of the enjoyment of an easement in the sewer located under the plaintiff’s house, but no such question properly arises on the pleadings. A recovery could be had ■only upon an express contract to pay, and upon the claim .as stated in. the complaint; and, the contract having been admitted in all its terms, the only question properly to be litigated related to the matter set up in the answer in avoidance of that admitted contract. The allegations of the answer are that certain representations were made by the plaintiff at the time the defendants entered into the contract, and that such representations were false, and that the defendants were induced to make the promise upon the belief that the representations were true. ■ They are to the effect that the plaintiff stated to Mr. Boll, one of the defendants, that the board of health had issued an order requiring that the sewer on the premises, Mo. 246 West Thirty-ninth street should be separately and independently connected with the main sewer in Thirty-ninth street; that the: sewer of 244 West Thirty-ninth street, which was connected with that of Mo. 246, was so constructed as to cause an overflow or backing up of sewage into the premises Mo. 246, and so imperiled the health of the inmates of the last-named house that the board of health had authorized the plaintiff to cut off the sewer of Mo. 244, unless the plaintiff would make new and enlarged connections with both houses; that the plaintiff was under no duty or obligation to maintain such, connection, and that she had obtained an estimate of the expense of making the new connections required by the board of health; and that it would not exceed §200; and that the defendants thereupon, being in ignorance of the facts, agreed to pay one-half of that expense. The representations, therefore, alleged to be false, related—First, to a requirement of the board of health; second, to the condition of the sewer connections at No. 244; and, third, to the cost of the alterations of the sewer.

There is nothing whatever in the record to show that any statement made by the plaintiff with respect to the requirements of the board of health was false. The defendant Boll, examined as a witness on his own behalf, states that Mrs. Sperling, the plaintiff, told him of this requirement of the-board of health. Mr. Ryder, a plumber, called by the defendants as a witness, testified that the whole bill was made in consequence of an order of the board of" health. “ The whole was due to the substitution of an eight-inch iron pipe for the-brick drain on No. 246.” It was not necessary for the plaintiff to prove, in the first instance, that the representation with reference to the requirement of the board of health was true. It was incumbent upon the defendants to show that it was false; and such testimony as appears in' the record upon the subject indicates that it was not false, but was in fact true. As to the representation concerning the condition of the sewer of No. 244, and its being the fault of the plaintiff that it was in bad condition, and caused the backing of sewage, there was a conflict of evidence respecting the fact of such representation having been made at all. The defendant testifies that the plaintiff told him that, through his neglect and fault, the sewer of No. 244 had burst into her cellar, and had flooded it, and put in jeopardy the life of her grandson. Now, even if this representation had been made, it was something in which the defendant Boll acquiesced immediately, according to his own statement, for he said : “ All that is my fault. I certainly will repair it.” He admitted that it was his fault, and therefore had apparently the same belief with reference to the subject that the plaintiff had. They both may have been, and probably were, mistaken; and it would so seem from the testimony of the plumber, who subsequently took out the brick drain, and put m the iron pipe. But that does not in -any way establish an intent on the part of the plaintiff to falsify, or to induce the defendants to enter into a contract by deceit on her part. And so with reference to the further representation regarding the cost of the alteration. The defendant Boll merely testifies that the plaintiff stated to him that shó had an estimate made of the probable cost, which would be §200. She testifies she made no statement at all of that character. Now, even if such a statement were made, it was only made as an estimate. The defendant Boll does not testify that he agreed merely to pay one-half of $200, but he agreed to pay one-half of the expense ; and his letter to the plumbers distinctly states that he had made an arrangement to divide the expense for changing the sewer in No. 246, if certain other persons, who had also a right to use the sewer, did not come in and contribute to that expense. The burden of proof was upon the defendants to show the falsity of all the representations alleged. The proof was inadequate to show that asserted falsity. The promise.was made upon good consideration, and the verdict was against the evidence.

The motion for a new trial should have been granted, and the judgment appealed from should be reversed, and a new trial granted, with costs to the appellant to abide the event.

All concur.


author: INGRAHAM, J.

text:
    Phoenix Bridge Co. et al. v. Keystone Bridge Co. et al.

    (Supreme Court, Appellate Division, First Department.
    November 13, 1896.)
    Injunction—Undertaking—Damages.
    Counsel fees on and before trial of an action for an injunction, and on appeal from a judgment dismissing the complaint, are not allowable as damages sustained by the injunction, or by reason of the continuance thereof after the dismissal of the complaint, where such continuation was not objected to by defendants, and no "motion was made by them to vacate the injunction.
    Appeal from special term, New York County.
    Action by the Phcenix Bridge Company and others against the Keystone Bridge Company and others. From an order confirming the report of a referee assessing the damages sustained by defendants by reason of an injunction, and directing the sureties on the undertaking given on such injunction to pay the same, plaintiffs appeal.
    Delos McCurdy, for appellants; H. B. Closson, for respondents.
   INGRAHAM, J.

—The nature of the action and the ground of the decision of. the court upon the trial are stated in the opinion of the court of appeals affirming the judgment dismissing the complaint. 142 N. Y. 427; 59 S. R. 807. It was there held that the action was brought in the affirmance, and not in repudiation or disaffirmance, of the agreement alleged, and that, in such an action, the court was right in refusing to the plaintiff any relief upon a contract which the complaint alleged to be void as contrary to public policy, and illegal as being a combination to enhance prices. The judgment demanded by the complaint was that certain action of the associates to that agreement assessing an amount claimed to be due from the plaintiff to the associates be decreed to be unlawful, null, and void, and that the defendants be enjoined and restrained from taking any action towards the expulsion of the plaintiff from ■said association, or enforcing against the plaintiff the penalty in said agreement of association contained, and from forfeiting the rights and interests of the plaintiff in and to the guaranty fund of said association. The complaint further prayed that .a temporary injunction might issue restraining the association from expelling the plaintiff, or enforcing against the plaintiff the penalties in the agreement of association contained, and from in any -manner interfering with, removing, dividing, or distributing the guaranty fund of said association, or any part thereof, until the hearing and determination of the action. Upon the commencement of the action a temporary injunction was granted, substantially as prayed for in the complaint. Upon obtaining such order the plaintiff furnished the usual undertaking on the injunction in the sum of $500. Upon the return of the order to show cause why such temporary injunction should not be continued, the defendants asked and obtained a modification of the injunction, and, as modified, it was continued, without opposition on the part of the defendants. Later in the progress of the suit, and before the action was reached for trial, the defendants made a motion for a further modification of the injunction, which was granted, without opposition, so that the amount of the guaranty fund, required to be retained was reduced to the interest claimed in such fund by the plaintiff, to wit, the sum of $40,000. The action subsequently came on for trial at special term, when the complaint was dismissed, upon the ground that, the contract being illegal, as against public policy, the court was not bound to enforce it between the parties. An appeal was taken from that judgment, and on plaintiffs’ motion the injunction was continued pending such appeal. Upon the continuance of such injunction an undertaking was given, by the plaintiffs, which provided that the sureties upon such undertaking would pay all costs and damages which might be awarded against the plaintiffs upon such appeal, and also the sum directed to be paid by said judgment so appealed from, and also contained the following provision:

“And do also undertake that, if the said judgment, so far as it vacates such injunction, shall be affirmed,, the appellant will pay all.damages which the defendants have sustained by reason of the said injunction, or by reason of the continuance thereof, the amount thereof to be determined as provided by the statute in such case made and provided.”

The judgment so appealed from was affirmed by the general term, and subsequently by the court of appeals. Upon such affirmance a motion was made in the court below for the appointment of a referee to ascertain the amount of damages sustained by the defendants, or either of them, by reason of such injunction, and this appeal is taken from the order confirming the report of such referee.

No question is raised as to the power of the court to continue an injunction after a final judgment in the action is entered dismissing the complaint, and the defendants consented to the entry of the order continuing such injunction upon the giving of the undertaking before referred to. The question that we have to determine is as to the liability of these sureties upon the undertaking given by them, and the amount of such liability. On the original undertaking for $500, the sureties agreed that the plaintiffs would pay to the defendants the amount of such damages, not exceeding the sum of $500, as they might sustain by reason of the injunction, if the court finally decided that the plaintiff was not entitled thereto. And upon the undertaking given to secure the continuance of the injunction after judgment, the sureties undertook that, if the said judgment, so far as it vacates such injunction, should be affirmed, the appellant would pay all the damages which the defendants shall have sustained by reason of said injunction, or by reason of the continuance thereof. By the decision of' the court on the trial it was determined that the plaintiffs were not entitled to the injunction; and upon the appeal, the judgment, so far as it vacates such injunction, was affirmed, and the sureties upon these undertakings to obtain the injunction became liable to pay the damages which the defendants-sustained by reason of the injunction while it continued, and the sureties on the undertaking given to secure the continuance of the injunction became liable to' pay the damages-which the defendants sustained by reason of the continuance thereof. The condition of the unclertaking was, not that the plaintiffs would pay the damages if they should not have a good cause of action other than that alleged in the complaint, but that tjie plaintiffs would pay such damages if the court should finally decide that the plaintiffs were not entitled to the injunction in that action; and, upon.the second undertaking, that such damages should be paid if the judgment which vacated said injunction should be affirmed. The final judgment of the court of appeals affirming such judgment imposed upon the sureties the liability to pay the damages sustained by the defendants. The referee allowed, as the damages sustained by the defendants, the counsel fees, exclusive of taxable costs and allowances, on and before the trial, of $1,250, and the counsel fee on the appeal to the general term of $500. We think that these sums were improperly allowed as damages sustained by reason of the injunction. As before stated, no application was made by the defendants, on the return of the order to show cause why the injunction should not be continued, to vacate the injunction; nor was objection made to its continuance, except the modification before referred to was applied for.

The objection that the court would not aid either of the parties to this illegal agreement to enforce the agreement, or to prevent a violation thereof, plainly appeared on the face of the complaint, and was the objection that was finally sustained by the court upon the dismissal of the complaint, and by the court of appeals on the affirmance of the dismissal. We must assume that, if that question had been presented to the special term on the return of the motion to continue the injunction, the correct principle would have been applied, and the injunction vacated, and a trial would not have been necessary to get rid of the injunction. The defendants were not obliged to submit to the 'restraint until the trial, because it could have disposed of the injunction by opposing the motion to continue it pending the litigation. The contingency, therefore, which would justify allowance of the expenses of the trial was not presented in this caso, and upon the principle established in Andrews v. Woolen Co., 50 N. Y. 282, such counsel fee was not allowable. There (at page 287) the court says :

“ The other item objected to was the counsel fee upon the trial. Ordinarily, this would not be allowable, but under the circumstances I think it was. The defendant made the proper effort to dissolve the injunction before the trial. [He had moved to dissolve the injunction.] ■ The court required that the question should be deferred to be disposed of on the trial. A trial was therefore necessary, not merely to dispose of the issues but to get rid of the injunction. Until the cause would be tried, the defendant was obliged to submit to the restraint. It was placed in that position by the order of the court, and not by its own laches.

Here the defendant made no effort to dissolve the injunction before the trial. The trial was not, therefore, necessary to get rid of the injunction, and the defendants were placed in this position, not by order of the court, but by their acquiescence in the continuance of this injunction. This question was presented to the general term of the supreme court in this department in Whiteside v. Cottage Ass’n, 64 Hun, 557, 32 N. Y. Supp. 725, and it was held that the counsel fee in such case was necessitated, not by the injunction, but by the suit which the association was compelled to defend, and that the counsel fee paid under such circumstances could not be recovered of the sureties. The cases cited in that opinion fully sustain that conclusion. We think, therefore, that the allowance of these counsel fees cannot be sustained. It appeared, however, that the two modifications of the injunction obtained by the defendants involved an exjiense of §75, and we think that sum can be fairly said to be damages sustained by the defendants in consequence of the injunction, and that that amount should be allowed, instead of the amount of §1,750, damages allowed for counsel fee for the trial of the action, and that the sureties upon the undertaking given to obtain the injunction in the first instance were responsible for the payment of this amount. The counsel fee upon the reference, and the expenses of the referee, were properly allowed.

The remaining item is the difference between legal interest and the amount of interest earned by the defendants upon the funds held under said injunction. The defendants have shown no such loss of interest by reason of this injunction. Section 15 of the contract between the members of the Bridge Manufacturers’ Association provided that all the funds of the association should be deposited with such banks or trust companies as the executive committee should direct. "When the injunction was obtained on January 28, 1890, one-half of the guaranty fund was on deposit with the United States Trust Company and the remaining one-half with the Union Trust Company. On September 30, 1890, the whole of the fund was deposited with the former company. On February 7, 1891, $170,000 was withdrawn from the United States Trust Company, still leaving $40,000 with that company. What was done with the remainder was not shown. Thus it appears that the defendants did with the guaranty fund, including the plaintiff’s $40,000, precisely what they had been doing prior to the injunction. It was not shown that the $170,000 removed from the United States Trust Company on February 7, 1891, was placed more advantageously. On the other hand, it ivas .shown that the removal of one-half of the fund on September 30, 1890, was due to more advantageous rates received from the United States Trust Company. For all that appears, the .$40,000 claimed by the plaintiffs might have been removed with the rest of the fund on February. 7, 1891. The defendants were at liberty to deposit it wherever they saw fit. All that was required of them by the injunction was that they should not distribute it .among the individual members, as the property of such members. It is, in fact, the distinct claim of the defendants that they earned with this money all that could be earned in the manner provided for by the contract, viz. by deposit with banks or trust companies. And that very contention, supported by the proof, is fatal to their position. It is true that, where one withholds money to which another is entitled, the latter may recover legal interest. That is presumed to be the damages caused by the detention. Sanders v. Railway Co., 94 N. Y. 641. But there ivas here no withholding. The defendants have had possession of the fund throughout. They have been, to a certain extent, restrained in their use of it. The question is, Did this restraint, as matter of. fact, damage them ? Did it prevent their securing legal interest or any greater interest than they did ? Plainly not, since they used it just as they would otherwise have done. But, if it did, that fact should have been' shown. The presumption of damage up to the legal rate has never been applied, except where the money has been withheld. In other words, that is the measure of damages for a total deprivation of possession. Here there is simply a qualification of the right attaching to possession and ownership. The same rule ought not to apply in both cases. The legal presumption which governs when the successful party has not the possession must yield to the actual fact when that possession has been his throughout.

The order appealed from should be modified, by fixing the-amount of the damages sustained by the defendants in consequence of the granting and continuance of the injunction at $325, and the order, as so modified, should be affirmed, without costs.

All concur.


author: VAN BRUNT, P. J.

text:
    John Delehunty v. Philip Hake et al.

    (Supreme Court, Appellate Division, First Department.
    Nov. 20, 1896.)
    Replevin—Demand.
    • A, certificate of stock was deposited with the trustees of the corporation under an agreement with an employé that the shares, should belong - to him if he should remain in the service of the corporation until a specified day, and that, if he should quit the service of the cor- - poration before such day, he should be entitled to a proportionate-part of the shares. Held, that a demand before the time specified in the agreement, made by the receiver of the employé in supplementary • proceedings for delivery of stock, was insufficient to sustain an action. by the receiver against the trustees, where the employé remained in. the service of the corporation during the time specified in the contract..
    Appeal from trial term, New York County.
    Action by John Delehunty, as receiver of the property of George W. Proctor Knott, against Philip Hake, George A. Kaisbeck, and William L. Buttling, as trustees of the Philip ■ Hake Manufacturing Company, to recover possession of a cer- • tificate of stock, From a judgment in favor of plaintiff, entered, on a trial by a court without a jury, defendants appeal.
    George C. Lay, for appellants; W. P. Burr, for respondent..
   VAN BRUNT, P. J.

-—This action was brought to recover - from the defendants a certificate of 30 shares of stock. The ■ plaintiff brings the action as receiver of one George W. Proctor Knott. It appears that on the 10th day of January, 1891,. the said Knott entered -into an agreement with one Philip • Hake, by which, after reciting that Iinott had been in the ■ • employ of Hake for many years, and had recently entered into ■ the employment of a corporation known as the Philip Hake > Manufacturing Company, and that said Hake was desirous that, said Knott should remain with said corporation, the said Hake. agreed to deposit with the trustees of said company a certificate for 30 shares of the stock of the company under the terms. and provisions of the agreement; and the said Knott agreed to remain in the employ of the company, either as an officer ■ or • employé, until the 31st of December, 1895, or, in case of. his-, death in the meantime, until the date of his death, and to serve > the said corporation to the best of his knowledge and ability,. and to do all that lay in his power to' enhance the value of. the - stock of the corporation; having the privilege, however,, at-. any time, to terminate his connection with the corporation, in which event he was to be entitled to receive a proportionate part of said shares of stock from the 1st of January, 1891, to the date of the termination of his connection. The agreement further provided that on the 31st of December, 1895, if he then remained in the employ of the corporation, or his employment should terminate on that date, the trustees were authorized to deliver said certificates of stock to Knott. The agreement further provided that the cause of the termination of the connection between Knott and the corporation should have nothing to do with the terms and conditions of the agreement, and, further, that no interest in the agreement or interest in the shares of stock could be or should be assigned or transferred by Knott until he was entitled to the possession of such certificates under the terms of the agreement. It further appears that on the 29th of May, 1895, said Knott assigned all his interest in the stock and in the agreement to one G-. A. Knott, and on the 21st of October, 1895, the plaintiff was appointed, by an order of the supreme court, receiver of the personal property of the said G-. W. Proctor Knott, and of the rents and profits of his real property. The said Knott remained in the employment of the manufacturing company until the 31st of December, 1895. In October, 1895, the receiver made a demand upon the trustees of the corporation for the delivery of the stock in question. There was no proof of any demand made after the 31st of December, 1895. There was evidence on the part of one Wilson, who was in the employ of the plaintiff’s attorney as managing clerk, who swore that he called at the office of the defendants’ attorneys in January with regard to the payment or delivery by the trustees of the company to the plaintiff of the stock in question; but what transpired at this interview does not appear. It does not appear that there was demand made or any refusal to deliver. The court having found in favor of the plaintiff, from the judgment thereupon entered this appeal is taken.

It seems to us that the failure to make a demand after the termination of' the period in which the stock was to be held in escrow is fatal to the maintenance of the action. The stakeholders have not been put in the wrong. Their possession was rightful, and there is no evidence whatever of detention. A demand was made in October which they had the right to refuse, and there is not a particle of evidence of any subsequent demand having been made. The judgment should be reversed, and a new trial ordered, with costs to appellants to abide event.

All concur.


author: VAN BRUNT, P. J. O’BRIEN, J.

text:
    Nathan Lieber v. Alford Friedlander.
    (Supreme Court, Appellate Division, First Department.
    Nov. 13, 1896.)
    Master and servant—Yearly hiring—Evidence.
    A finding that plaintiff was hired by defendant for a year is not sustained by the evidence where plaintiff’s testimony to that effect was contradicted by defendant and- his witnesses, and a receipt given by defendant for money deposited with him by plaintiff on entering the employment recites that the deposit was to secure plaintiff’s good faith, honesty, and integrity, and conformity with the rules of defendant’s business, and that the consideration of the deposit was the payment to plaintiff of $30 per week with the security instead of $27 per week without the security ; though plaintiff left the labor union of which he was a member in order to enter defendant’s service. O’Brien and Eumsey, JJ., dissenting.
    Appeal from trial term, New York County.
    Action by Nathan Lieber against Alford Friedlander for wrongful discharge of plaintiff from defendant’s employ. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals..
    F. Spiegelberg, for appellant; G. S. Drachman, for respondent.
   VAN BRUNT, P. J.

—This action was brought to recover damages occasioned by the alleged wrongful discharge of the plaintiff from the defendant’s employ. The question involved was whether the plaintiff was employed for a year, or whether the hiring was a weekly one. The plaintiff was the only witness upon his own behalf, and several witnesses were examined upon the part of the defendant. There is no error alleged in the rulings of the court upon the trial, but it is claimed upon, this appeal that the verdict is against -the weight of evidence. It is conceded upon the part of the defendant that the weight of evidence does not depend upon the number of witnesses, but rather upon the character of the testimony given, and the facts surrounding the transactions. Upon an examination of the record in this case we are of opinion that the verdict in question is decidedly against the weight of evidence, and that-the story of the plaintiff is successfully impeached by the only writing which is connected with the transaction, and by the testimony of the numerous witnesses whose evidence is more credible and satisfactory than that of the plaintiff. The plaintiff testified that in the year 1893 he was, employed by Adolf Flochstadter & Oo., and that his friend Mr. Beller, who was in the employ of the Children’s Cloak Company (under which name the defendant did business), asked him whether he was-willing to go into the defendant’s employ as a non-union man. In pursuance of this conversation he went to the office of the defendant the next day, at the dinner hour. This was the first week in January, and on a Saturday afternoon. He saw there a. Mr. Reiman, the defendant’s manager, who told him the-story of the trouble he had in the house in regard to the union cutters, and then asked the plaintiff whether he was willing to go against the union, and to work for the defendant. The plaintiff said “Tes,” if he could better himself, he would do that. Beiman inquired: “ Q. What do you ask a week ? ” The plaintiff said: “A. I am getting in the old place $24, and I am well liked in the organization. I belong to it years and years. On account of hating myself—between myself and my brothers—so well, I will accept $30 a week.” Beiman said': “ All right, I am willing to give you that; and I will give you my Avord of honor that I will give you engagement for a whole year.” The plaintiff thereupon said: “A1F right, I believe you. I take your Avord for it.” Hr. Beiman then said: “ Well, if you are agreed upon what I say, you can go upstairs and fix yourself up. It is Saturday afternoon. The cutters are not upstairs. You can go upstairs, and fix yourself up for Monday morning. You avíII be ready so as to give them work.” The plaintiff then went upstairs and got ready for Avork on Monday morning. He further testified that nothing* Avas said in regard to a salary of $27 a week. The witness then testified that he Avent home on Saturday night perfectly satisfied Avith the agreement, but, after considering whether he should take the man’s word for real truth, he did not go to Avork on Monday morning, but waited to make up his mind as to Avhether he should believe the man or not, because it seemed to him, the Avay the man looked at him— (Here the Avitness was interrupted.) The witness then further testified :

“ So I went down town dinner hour, on the corner of Broadway and Canal street, so Mr. Fox have seen me. He Avas kind of manager there. He had seen me. He said: 6 It is just the right man what I want to see. I am looking for you all over. You promised to come up Monday morning to work, and you didn’t come up.’ ‘Well,’ I said, ‘I hardly believed the man what he says ; ’ and he said: ‘ Well, Mr. Beiman wants to see you anyway. Come up, now.’ So I Avent upstairs again, and Mr. Beiman said to me: ‘ Don’t you take my Avord for it? I gaAre you my Avord of honor as a gentleman.’ Mr. Beiman said to me ‘ that you are hired by me for a full year from noAv until next year this time.’ And he said—I thought to myself: ‘ Well, uoav I can "believe the man. He said different then.’ ‘If you don’t believe me Avhat I say, here is Mr. Seller, your oavu friend, your particular friend, and Mr. Fox. You can take them as Avitness.’ So I thought this Avay: If a man talks about AAdtness matters, all right. 1 thought I could believe the man. And after, I said, ‘ All right; if you talk this way from your oavu heart and soul, so I can start into work.’ And he shook hands Avith me. He said : ‘ You don’t need to be afraid. You take mine Avord again as a man of honor that I give you employment for a whole year.’.”

The witness then testified that there was some talk about a deposit. That Mr. Beiman said : •

“11 want to be sure with you that you not go to leave me before the year is over.’ I said, ‘ Well, what do you want of me then?’ He said: ‘Well, I want you to place $300, a deposit, for a security that you not go to leave me before the year1 is over.’ So I said: ‘ Mr. Reiman, I am kind of short of money. I have not got always money to spare. I can spare yet for a moment $300, and not to keep it on me long, because I might need it in a month, or two or three months. I don’t know when.’ ‘ Well,’ he said, ‘ you can bring me up $300, and any time you have any use for it you can get it back.’ So I gave them the $300 the same day I was engaged, and I started in to work.”

It appears that at this time a receipt for this money was given reading as follows :

“New York, January 10, 1893.
“ Received this day three hundred (300) dollars from-' Mr. Nathan Levy, as security to us for his good faith, honesty, and integrity, and as security to us for his conforming to the rules of our business, in connection with his position in our cutting department; and the consideration of this deposit of Mr. Levy to us is our paying to him thirty (30) dollars per week, with the three hundred (300) dollars security, instead of twenty-seven (27) dollars per week without this security.
“ [Signed] Children’s Cloak Co.”

Reiman and Fox were examined as to this transaction, and each swore that nothing was said about a hiring for a year. Mr. Seller said that he was not present at the hiring, and both Friedlander (the defendant) and Seller testified to statements made by the plaintiff that he had no contract for a year ; that question having arisen between Fox and the plaintiff from certain statements which were reported to Fox as having been made by the plaintiff of a hiring for a year. Reiman and Fox both testified that the original contract was for $27 a week, and that it was raised to $30 a week only in consideration of the fact of his putting up the $300 as security that he would not leave them so long as they wanted to employ him ; and that the $300 was returned to the plaintiff some time before his discharge. It may be true, as is claimed upon the part of the plaintiff, that the construction to be placed upon Mr. Beller’s téstimony was, when the plaintiff said that he had no contract for a year, it might have been inferred from the transaction that he had no contract in writing for a year. But when we consider the testimony of Reiman and Fox in connection with the receipt given, which so distinctly contradicts the testimony of the plaintiff in reference to the terms of the original agreement, it seems impossible to come to any other conclusion than that plaintiff testified falsely in regard to the question of the original hiring. It seems to be conclusively established that he was originally hired for $27 a week (which he swore was never spoken of), and that his salary was raised because of his deposit of $300, insuring the defendant of his services in hostility to the union with which the defendant was having á contest. In view of this written evidence, clearly impeaching the plaintiff in regard to what he considered a material part of this" transaction,—namely, the agreement as to the original hiring,—no confidence whatever can be placed in his testimony in regard to the hiring for a year in opposition to that of the witnesses who testified that nothing was said with respect thereto.

We are of opinion, upon considering all the evidence in the case, that the jury were unauthorized to come to the conclusion which they did, and that the judgment appealed from should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

BARRETT and IAGRAHAM, JJ., concur.

O’BRIEN, J.

(dissenting).—-We think that the issue here presented as to whether it was a weekly or yearly hiring was, upon conflicting evidence, peculiarly a question for the jury. It is true that the plaintiff is outweighed in the number of witnesses, and the force of part of his testimony is impaired by a written receipt. But neither of these has such probative force as to justify us in disregarding the plaintiff’s version, which is not only supported by his own evidence, but has certain corroborative circumstances, which may be briefly referred to. The witnesses, with the exception of one, who really knew nothing about the question of hiring, were, besides the defendant, his brother-in-law, who was the manager of his business, and the superintendent and an employé of defendant’s; none of. whom are to be regarded, any more than the defendant himself, as entirely disinterested witnesses. As to the discrepancy in the plaintiff’s version, that he made a contract for $30, when the receipt shows that it had been increased from $27 to $30 at the time he made the deposit for which the receipt was given, this was not material upon the main question, and is a circumstance to be weighed with all his testimony upon the question of his credibility, which was one for the jury. It was shown that the plaintiff did not seek employment from the defendant, but that the latter zealously sought out and persistently urged the plaintiff to enter his employ; that the plaintiff at the time was a member of the union with which the defendant was at war; and that in entering such employment the plaintiff lost his status as a member of the union, and) as a security for his faithful performance of the contract was obliged to deposit $300. The jury had a right very properly to consider whether—if the defendant’s version was true, that the employment was only by the week—they could have prevailed upon the plaintiff to make these sacrifices for so precarious employment; and they were, it seems to us, strong corroborative circumstances that the plaintiff’s agreement was one for a year. Nor do we attach much importance to the admissions claimed to have been made by the plaintiff as to the duration of his employment, it being a fair subject of criticism that at every point a disposition was shown by the defendant’s witnesses to establish a weekly, as against a yearly, hiring, which would be unusual if there were no question in their minds at any time as to the duration of the employment. Upon this question there was a clear conflict of evidence, and we do not think we should be justified in setting aside this verdict on the ground that it is clearly against the weight of evidence. For this reason we think the judgment should be affirmed, with costs.

RUMSEY, J., concurs.


author: INGRAHAM, J. WILLIAMS, J.

text:
    William H. Starbuck v. Phenix Ins. Co. of Brooklyn.
    (Supreme Court,, Appellate Division, First Department.
    Nov. 13, 1896.)
    1. Marine insurance—Proof of seaworthiness.
    A finding that a vessel, which was sunk by water getting in through an open porthole, was seaworthy when she left port is supported by evidence that all the portholes were fastened before she sailed, and that no leak was noticed for over 12 hours after sailing.
    2. Same—What must be proved to avoid policy.
    In order to prevent a recovery on a time policy covering a vessel which was seaworthy when first insured, the insurer need not prove that she became unseaworthy through fraud of the owner, but proof of lack of diligence is sufficient.
    3. Same—What constitutes unseaworthiness.
    A vessel is unseaworthy when she is so constructed that water coming in through the portholes cannot reach her pumps, and enough to sink her can come in that way. Per Williams, J.
    Appeal from trial term, New York County.
    Action by William H. Starbuck against the Phenix Insurance Company of Brooklyn, N. Y., on a policy of insurance. A judgment was entered on a verdict in favor of plaintiff, and defendant appeals.
    Robert D. Benedict, for appellant; Artemas H. Holmes, for respondent.
   INGRAHAM, J.

—Thisaction was upon a time polióy of insurance whereby the defendant insured the steamer Queen of the Pacific from the 9th day of August, 1887, to the 9th day of August, 1888. The language of the policy is very broad, and generally is against “ all other perils, losses, and misfortunes that have or shall cometo the hurt, detriment, or damage of the said ship, etc., or any part thereof.” " It appeared from the evidence that this steamer, being in good order, and' apl^arently properly manned and equipped, sailed on April 29, 1888, at 2 o’clock in the afternoon, from San Francisco for San Biego, Cal. When the ship sailed, there was an ordinary west and northwest wind, and a chopped sea, with a full-sail breeze for a ship. Everything went on well until some time between 2 and half past 2 o’clock the next morning, April 30th, when one of the officers of the ship discovered water coming in from the starboard alleyway. The officers of the ship attempted to stop the leak. The vessel was run ashore, where she sank. She was subsequently raised, when it was found that an after porthole in the starboard alleyway was open, that there were no other holes or breaks in the hull of the vessel, and that the water which caused the vessel to sink must have got in through this open porthole. The evidence is clear that the vessel was properly constructed, the deadlights ample for the purpose, and that, but for the fact that one of the deadlights was open, the wessel was in a perfectly seaworthy condition, both at the time of the issuing of the policy, and from the time she sailed from San Francisco to the time of the sinking. There is, it is trae, a claim by the defendant that, in consequence of some error in the construction of the vessel, the water getting into this alleyway was unable to reach a portion of the vessel from which it could be taken up by pumps; and testimony was given of a person described himself as a surveyor for Lloyd’s ¡Registry British and Foreign Shipping,” in which he testified that there should be two four-inch pipes on the side of the vessel, which would take water far more than the leakage from the alleyway into the hold of the vessel.” lie further testified that'if a vessel had started from San Francisco, and it was found that she had taken in water in the starboard alleyway, and subsequently sank, he would not have passed the ship before these "things were clone and scuppers fitted, and would not give her a certificate to go to sea. But the witness refused to say, although he was pressed by counsel for the defendant, that the .absence of such scuppers would make her unseaworthy; nor does the evidence conclusively show that the vessel did not have such pipes or scuppers. Croghan, one of the witnesses for the plaintiff, did testify that the alleyway had no connection with any part of the ship except through certain doors. He ■knew of no means of the water getting out except through the doors, and there were no pumps that would reach the water in the alleyway. This seems to have been the only evidence that there was no way for the water to get to the pumps from this alleyway, but it is not clear that the witness intended to say that he knew of his own knowledge that there were no pipes of any kind in the alleyway. There is no evidence t.o show that in a properly equipped ship with proper deadlights and hatches there would be a seasonable apprehension of sufficient water entering to make the ship unseaworthy because provision was not made for carrying water from that alleyway to the hold of the vessel. At most, a finding that she was unseaworthy from this cause would be an inference of fact which would be for the jury. The evidence, however, did establish that this loss was caused by water entering this porthole, and that when the vessel was raised it was found that this porthole was open. As before stated, it is not disputed but that the vessel was furnished with proper deadlights to cover those portholes. The assured furnished a competent employe, whose duty it was to look after the deadlights in port, to close the deadlights or portholes as the cargo was placed in the vessel; and this employe swore that he did close and fasten all of the deadlights during the days the vessel was in port prior to her sailing. It seemed that the floor of this alleyway was about a foot above the level of the sea when the vessel sailed, and that-the deadlight's were between three and four feet above the-floor of the vessel. The alleyway was stowed with freight, when the vessel sailed. The witness testified that he first closed the glass, which fastens with a screw, which he set up with a key, and then closed the iron backing with two screws, using the same key for both. He swears that all of the dead-lights or portholes in the alley way were in good order at the time, and that he closed the door after fastening the last dead-light. The vessel sailed on April 29th at 2 o’clock. All that day and evening went on as usual until, about between 2 and half past 2 o’clock the next morning, water was noticed leaking from this alleyway; and it was noticed that the vessel had a slight list to starboard. Thus it seems that more than 12 hours had elapsed between the time of the sailing of the vessel before any considerable amount of water leaked in, and that during all that time there was quite a heavy sea, with the vessel rolling considerably; and it was at least a question for the jury to determine as to whether or not, if the portholes had been open when the vessel sailed, water would have been sooner discovered. It the jury, believed the evidence of the-captain of the hold, who swore positively that he closed and fastened these portholes when the vessel sailed, and believed that she was not unseaworthy because of the arrangement of the pumps, and of there being no opening to allow water to get into the hold, they would be justified in finding a verdict for the plaintiff; and we think it clear, therefore, that the refusal of the court to direct a verdict for the defendant was right.

Counsel for the defendant claims that such a finding would be against the weight of evidence, because there was no possible way by which this porthole could have been opened after the vessel sailed if it was securely fastened before. We have the positive testimony, however, of an uncontradicted witness, that he closed the portholes, and securely fastened them. It is impossible to state just who entered this alleyway after the officer of the ship fastened the porthole. We have a fact, testified to under oath, that the portholes were closed, and securely fastened, before the vessel left San Francisco ; and in the fac© of that testimony it would have been error for the court to hold that the jury were not authorized to believe it, and base their verdict upon it, because the court could not see how the portholes could subsequently become open if the testimony was true.

Several requests to charge were made by counsel for the plaintiff, which were charged by the court, and to which the defendant excepted. One of these requests, we think, requires that there should be a new trial. The plaintiff requested the court to charge:

“ If you find that the ship was ■ seaworthy on the 8th of August, 1887, when the policy went into force, the burden of proof is on the defendant, and the defendant must prove that the vessel subsequently became unseaworthy by reason of the willful fraud of the owner or the assured ; otherwise plaintiff is entitled to a verdict.”

The court, in charging this request, imposed too great a burden upon the defendant. The rule is stated in Berwind v. Insurance Co., 114 N. Y. 234, 23 S. R. 93, as follows :

“ In every case of marine insurance by a general policy covering all perils of the sea, where the vessel insured is in port, there is an implied -warranty that the vessel is seaworthy at the inception of the policy. It is a condition precedent to the risk; and, if the vessel is not seaworthy, the policy does not attach. * "x" The plaintiffs,under such a policy, make out a prima facie case by showing seaworthiness at the inception of the risk. But in time policies there is implied a warranty that the vessel will be kept in repair and made seaworthy at all times during the continuance of the risk, so far as that is reasonably possible ; and this implied covenant imposes upon the insured the duty of active diligence to keep the vessel in good order, and in a seaworthy condition. It is doubtless true that, under a general time policy insuring against all perils of the sea, unseaworthiness subsequent to the attaching of the policy is a defense, the burden of proving which is upon the defendant, and that the plaintiffs need offer no proof thereof as a part of their case.” •

"We think that the most favorable view to the defendant that can be taken upon the evidence in this case is that there was a question for the jury as to whether the vessel was seaworthy at the time of the inception of this risk, and that, if the jury should find that she was, the burden was then upon the defendant of showing that during the continuance of the risk the assured did not exercise active-diligence to keep the vessel in good order, and that, in consequence of the failure to exercise such active diligence, the loss occurred, to defeat a recovery. But that is very different from a charge to the jury that the burden is upon the defendant to show that the vessel subsequently became unsea-worthy by reason of the willful fraud of the owner or the assured. In fact, there was not a particle of evidence in this case that justified the finding of any fraud on behalf of the assured,- or any of its officers, by which this loss was occasioned. The most that could, be said was that some •one was negligent. There were thus two questions to be submitted to the jury. One was whether the vessel was seaworthy at the time of'the inception of the policy. The burden of proving that fact was upon the plaintiff, and that question was to be determined by the evidence in regard to the absence of some scupper or pipe to the hold of the vessel by means of which water could get to the pumps, and whether, in the absence of such pipes or scuppers, the vessel was un seaworthy. If the jury found that- the vessel was unseaworthy the-•question then would be whether or not she became so in ■consequence of the neglect of the plaintiff actively to perform the duty imposed upon him of exercising active diligence to lceep the vessel in a good and seaworthy condition. Considering the charge as a whole, we do not think that that question was clearly submitted to the jury in such a way as to obviate the error in granting the plaintiff’s request to charge that the defendant must prove unseaworthiness by reason of the willful fraud of the owner, and that there must be a new trial.

The judgment appealed from is therefore reversed, and a mew trial ordered, with costs to the appellant to abide the event.

YAN BRUNT, P. J., and PATTERSON and O’BRIEN, JJ., concur.

WILLIAMS, J.

(concurring).—The action was brought upon a marine insurance policy issued by the defendant. The policy was issued August 8, 1887. The vessel sailed from San Erancisco for San Diego, April 29, 1888, and on the following -day, April 30, 1888, began taking water, and soon after sank, mear Port Harford, Cal., in 25 feet of water. It was subsequently discovered that the water entered the vessel through one of the deadlights in the starboard alleyway, and that the hull of the vessel was uninjured. There was no opening from this alleyway into which the water'entered to permit the water to reach the vessel’s pumps so it could be removed, and the sinking of the vessel prevented. As the case was tried and submitted to the jury, the verdict of the jury was made to -depend upon the seaworthiness of the vessel at the time she sailed, as affected by the open deadlight. There seems to have been no storm ■ or bad weather to affecu the vessel or the ■deadlight. The real questions' were whether the deadlight was closed and secured when the vessel sailed, and, if it was, how it came to be open afterwards. There was no dispute but that it was the duty of the owner to have the vessel in a seaworthy condition when she sailed, and, if this duty was not performed, and the loss occurred by reason of the failure to perform such duty, there could he no recovery. It was also agreed that the burden of proof upon this issue of fact was, in this case, upon the defendant, the policy being a time policy. Berwind v. insurance Co., 1141ST.Y. 234; 23 S.E. 93. The defendant claims, however, that in view of the conceded facts in the case, and the charge of the court, the verdict cannot he sustained ; that there was no question of fact for the jury, and a verdict should have been ordered for the defendant. The court charged the following propositions: If the deadlight was open when the vessel sailed, she was not seaworthy. If the deadlight was not sufficiently strong to resist ordinary pressure of the sea in fair weather without opening, she was not seaworthy. If the ship was so constructed that water enough could come in through the deadlight to sink the vessel, because the water could not get to the pumps, she was not seaworthy. That there was no evidence of the fact, and the jury were not authorized to presume, that there had been any willful opening of the deadlight with intent to cause the vessel to leak, after the deadlight had been fastened, and before the sinking of the vessel. That there was no question in the case, under the pleadings and evidence, of barratry of the master or mariners. And then the court submitted to the jury, under the rules it laid down, and upon the evidence in the case, the question whether the vessel was seaworthy when she sailed, telling the jury, if they found she was seaworthy when she sailed, their verdict should be for the plaintiff; if she was not, their verdict should be for the defendant. These were the latest suggestions in the charge to the jury, and must have -expressed correctly the views,, of the court. Under such a charge the verdict certainly cannot be sustained upon the evidence in the case. The jury could not, under these instructions, find that the deadlight was opened by any one intentionally after the vessel sailed. Is must have been left open, or improperly secured, at the time she sailed, or her condition must have been such at the time she sailed that the deadlight was forced open by the ordinary pressure of the sea in fair weather. And in either of these cases the vessel was, under the instruction of the court, unseaworthy when she sailed. The defendant asked the court to charge that the open deadlight must be accounted for in one of these two ways, but the court refused to so charge. The court must have had in mind, in refusing this request, an idea suggested in the requests made in behalf of plaintiff, and charged by the court, which, although indefinite and uncertain in the language used, and more or less obscure, evidently were designed to convey the idea that a recovery by the plaintiff would not be defeated by a finding that the vessel became unseaworthy, after she sailed and before she sank (that is, during the voyage), as the result of the negligence of the master or crew, in the absence of willful fraud upon the part of the owner or assured, and of such fraud there was no evidence. Under the evidence, however, we are unable to see how it could be presumed (certainly there was no proof of the fact) that, even if, when the vessel sailed, the deadlight was properly closed or secured, and was strong enough to resist the ordinary pressure of the sea in fair weather, yet, through some carelessness or negligence of the master or crew thereafter, the deadlight was opened, and left open. The evidence is quite conclusive and undisputed that the doors of the alleyway were closed up and secured before the vessel sailed, and were not opened again until the vessel had sunk. What carelessness the master or crew could have been guilty of after the vessel sailed, under this evidence, it is difficult to-imagine. No suggestion on this subject was made by the court to the jury, and none is made by counsel upon this appeal. Jurors should not be left to speculate and draw upon their imagination. They should be required to act upon the evidence. There was no evidence in the case to authorize them to find the deadlight came open during the voyage, as the result of any negligence on the part of the master or crew after they sailed. As already suggested, the question submitted to the jury was clearly as to the seaworthiness at the time the vessel sailed, and under the charge and upon the evidence there was no basis for "the jury to find the vessel was seaworthy when she sailed, but became, unseaworthy thereafter, as a result of the negligence of the master or crew. But, beyond this, at least one request was submitted by plaintiff, and charged, which was clearly erroneous, and cannot be so construed as to avoid such error. The jury, by the first-request, having been told they must assume the vessel was seaworthy when the policy was issued, August 8,1887, the court, by the third request, instructed them that the burden of proof was on the defendant, and it must prore she subsequently became unseaworthy by reason of the willful fraud of the owner or assured ; otherwise the plaintiff was entitled to a verdict. The vessel did not sail upon the vova-ge during which the loss occurred until April 29, 1888, more than seven months after the issue of the policy. If the defendant proved the vessel unseaworthy at the time she sailed on this voyage, it was not necessary to prove such unseaworthiness was a result of the willful fraud of the owner or assured. If the charge had been made assuming seaworthiness at the time the vessel sailed, instead of the time the policy was issued, it would have been correct as an abstract proposition. As it was, it was entirely erroneous, and may well have misled the jury in rendering their verdict. In view of the facts in this case and the charge of the court, it was equivalent to saying, the dead-light being closed when the poliey was issued, even though it was open when the vessel sailed, still, unless it was so by reason of willful fraud of the owner or assured, plaintiff can still recover. Again, the charge of the court already referred to, that, if the ship was so constructed that water enough could come through the deadlight to sink the vessel, because the water could not get to the pumps, she was unseaworthy, would seem to have precluded a recovery by the plaintiff. That the vessel was so constructed, and in such condition, when she sailed, and that the loss resulted from a failure of the water to get to the pumps, is undisputed. And there was expert evidence to sustain the proposition thus advanced by the court as to such a condition or construction constituting unseaworthiness. We do not think that this verdict should be permitted to stand. Fairness and justice require that jurors should meet the questions submitted to them, and determine upon the evidence, and obey the instructions of the court as to the law. It is apparent from the most casual reading of the evidence and the charge in this case that the jury, in rendering this verdict, acted upon some improper instruction by the court, or suspicion or speculation or imagination arising in their minds. They could not have decided that the vessel was seaworthy when she sailed, which was really the only question submitted to them. We arrive at the conclusion that the verdict was not supported by the evidence, that there were errors in the charge that must have misled the jury, and that the judgment entered upon the verdict should therefore be reversed, and a new trial ordered, with costs to abide event.


text:
    Hyman Schnitzer v. Philip Schaefer et al.

    (Supreme Court, Appellate Division, First Department.
    Nov. 13, 1896.)
    Pleading—Sham or frivolous defense.
    It is not a sham or frivolous defense to set up in an action on renewal notes that the original notes were usurious.
    Appeal from special term, Hew York County.
    Action by Hyman) Schnitzer against Philip Schaefer and others to foreclose a mortgage. From an order striking out the answer as sham, and directing the verdict demanded in the complaint, defendants appeal.
    Gribson Putzel, for appellants; Charles GL F. Wahle, for respondent.
   INGRAHAM, J.

—The action was brought to foreclose a mortgage given to secure the payment of three certain promissory notes made by the defendants Schaefer and indorsed by the defendant Kurrus. The answer, in substance, admits the making of the notes, and the giving of the mortgage, denies the allegation of indebtedness,' and sets up as an affirmative defense that the notes in suit were given in renewal of certain other notes made by one Rieser and indorsed by defendants Schaefer, and that such indorsement was made by defendants Schaefer under their firm name solely for the accommodation of said Rieser; that the money represented by said notes was loaned and advanced to said Rieser, and said notes so indorsed were delivered, the said plaintiff reserving and taking for and to himself from each sum so loaned a sum ■equal to 12 per cent, of the amount thereof; that the said notes to secure which the mortgage.™ suit was given were the balance due upon the existing notes, and were given in furtherance of the unlawful agreement by which the plaintiff reserved to himself interest at a greater rate than 6 per cent. The¡ plaintiff in this action obtained an order to show cause why this answer should not be stricken out as sham, and why judgment should not be ordered for the plaintiff herein. The court granted that motion, and the defendants appealed. The question whether or not the original notes given by Rieser to the. plaintiff and endorsed by the defendants Schaefer were void, for usury was a question of fact which should not have been tried upon affidavit. The plaintiff, it is true, denies the usury. The defendants Schaefer and liurrus, by affidavit in opposition to the motion, affirm the truth of the allegations in the answer, which was verified, as to the usury in the original notes. In this case the defendants Schaefer and Reiser positively swear that the allegations of the answer are time, and thus the court is trying the truth of this defense 'upon affidavit; one witness swearing that thé facts alleged in the answer are false, and two witnesses swearing that they are true. The court below seemed to have acted in this case upon the assumption that the defense of usury is not available upon renewal notes, and has stricken out the answer as sham upon that ground. We think,, however, that that question should have been presented either by demurring to the answer' or by bringing the case on for trial; and that this defense was not so clearly frivolous as to have justified the court in granting, the plaintiff judgment upon the pleading if a motion had been made for judgment on the ground that the defense interposed was frivolous. Considerable doubt has been expressed as to the power of the court to strike out any defense interposed in a verified answer as sham. It is clear, however, that to justify the court in granting an-application to strike out a defense set up in a verified answer it must clearly appear that the defense is sham. A defense is sham, within the legal meaning of the term, which is so clearly false in fact that it does not in reality involve any matter of substantial litigation. Thompson v. Railroad Co., 45 N. Y. 471. It was held in that case that the rule which is applicable to an action at law is also applicable to an action in equity; and also that an allegation in an answer that may not. involve any matter of substantial litigation, if it is not false or sham within this definition, cannot be stricken out on a motion to strike out a defense as sham. "We express no opinion upon the question as to whether or not this defense is available in an action upon the renewal notes, but simply hold that the defense is not sham, within the legal meaning of the term, and is not so clearly frivolous as to justify the court in granting judgment upon the pleadings. A

The order ap-pealed from should therefore be reversed, with. $10 costs and disbursements, and the motion denied, with $10 costs, to abide the event of the action.

All concur.