text:
    Jacob Pauley, Adm’r, Pl'ff, v. The Steam Guage & Lantern Co., Def't.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    1. Master and servant—Negligence—Fire escapes.
    While the statute does not specify the number of fire escapes, the number required depends upon the size of the factory, the number of employes and the inflammable character of the materials used.
    3. Same.
    Defendant’s factory was seven stories high and consisted of a main building and a wing 100 feet long. There was afire escape on the south of the main building which was closed by iron blinds so as to be practically of no use, and one in the wing next to an elevator, beneath which was a shute leading to the cellar and into which a person descending the fire escape was liable to fall. There was no ladder to the roof. Plaintiff’s intestate was at work in the fifth story of the main building when a fire occurred -and his body was found in the cellar at the foot of the shute. Held, that the evidence was sufficient to show that his death was caused by falling into the shute while attempting to descend the fire escape ; that the case should have been submitted to the jury on the question whether defendant was not guilty of negligence in failing to provide proper escapes from the building, and whether deceased was free from contributory negligence, and that a nonsuit was improperly granted.
    Motion by the plaintiff for a new trial directed to be heard at the general term in the first instance.

      J. & Q. Van Voorhis, for pl’ff ; Louis Marshall, for deft.
   Lewis, J.

This action was brought to recover damages for the death of Frank A. Pauley, alleged to have been caused by the defendant’s negligence. The case was tried at the Monroe circuit in January, 1890, and at the conclusion of plaintiff’s evidence a non-suit was granted.

The defendant was an incorporated company engaged in the manufacture of lanterns in the city of Rochester, and on the evening of November 9, 1889, its factory was destroyed by fire, and some thirty or more of the employes were killed. Frank A. Pauley was an employe in the factory and was one of the victims. He was at the time of his death between fourteen and fifteen years of age. The factory building was seven stories high, including a basement and sub-basement The basement was the floor immediately below the level of the ground, and the sub-basement was the floor below that. ' There were two buildings connected ; one called the main building, the other the wing. The main building was located on the river. The wing building was over 100 feet in length. South of and connected with the main building was the shoe factory of Hoyt & Williams, which formed, with the main part of the defendant’s factory, one solid building, Hoyt & Williams’ building being one story higher than the defendant’s building.

Connected with the southerly side of the wing of defendant’s factory was a building occupied as a box factory, which was two stories lower than the wing, and between the building occupied by Hoyt & Williams and the box factory was a court from thirty to forty-five feet wide, extending from a street northerly between said buildings. There were flights of stairs in defendant’s main building, one near the south end and the other in the wing; the latter being located a little to the west of a door leading into the wing from, the court.

About ten feet east of the wing door was an elevator used for carrying freight. The shaft of this elevator was built against the south wall of the wing on the outside, so that it projected southerly into the court six or seven feet. On the east side of this shaft was a fire escape consisting of a ladder of iron staples fastened into the side of the shaft, the lower staple or ring being about fifteen feet above the surface of the court. There was an area at the north end of the court, extending from the elevator shaft to the east side of the court, which was as deep as the sub-basement. In this area and next to the elevator shaft and substantially under this fire escape or ladder, a shute or slide had been constructed for the purpose of sliding boxes into the sub-basement from the court. A person dropping from the ladder was liable to fall into the shute. There was another fire escape, consisting of a ladder attached to the southerly side of the main building and on the east side of the court between two rows of windows. These windows had iron blinds, which were so constructed as to practically prevent the use of the last mentioned fire escape. There was no ladder leading from the top story of the building to the roof. There was a passenger elevator on the west side of the main building, near the south end.

The work of the fire was very rapid, and the well of the passenger elevator acted as a flue to carry the fire to the upper stories.

There was a quantity of benzine, turpentine, varnish, paints, oils and other inflammable materials, including some hay stored in different parts of the building. The deceased worked on the fifth floor, at the southerly end of the main building and in the vicinity of the fire escape last described. There were about sixty men and boys at work upon the fifth floor on the night of the fire. There was proof in the case tending to show that Pauley was at work upon the fifth floor of the factory at the time the fire occurred, but none of the witnesses called testified to having seen him after the fire broke out His body was found in the sub-basement, in the vicinity of the foot of the shute above described. When the fire broke out the employes in the fifth story attempted to escape from the building by going down the stairway, but the smoke and fire prevented, and they then rushed for the fire escape attached to the wing elevator shaft. In getting to that escape they were obliged to pass through a window, and the way thereto was somewhat obstructed by a bench and other objects. A large number of persons in attempting to useethis escape obstructed each other, and many of them became panic stricken, caught hold of each other, and were lying in a mass upon the floor holding each other and calling for help. A considerable number succeeded in leaving the building by this fire escape, but in doing so were seriously burned by the fire coming from the windows and in dropping from the lower rung of the escape several were precipitated into the shute mentioned as being under the escape, falling into the basement of the building and receiving quité serious injuries in coming in contact with the shute, but succeeded in escaping. One person and one person only succeeded in getting out of the building by way of the escape attached to the main building. His access to the escape was rendered very difficult by reason of the blinds obstructing his way. He was not able to explain how he reached the escape; he testified that after the fire he made the attempt to get to this fire escape, but was not able so to do in consequence of the shutters obstructing his way. Evidence tended to show that it was practically useless. There was evidence that a person on the roof of the building could probably have escaped through a door leading from the roof into the highest story in the north end of the Hoyt & Williams building, or by dropping from the roof of the wing on to the roof of the box factory, a distance of two stories. Section 10 of chap. 409 of the Laws of 1886, as amended by chap. 462 of the Laws of 1887, provides that “ fire escapes shall be provided on the outside of all factories three or more stories in height communicating with each floor above -the first, well fastened and secured and of sufficient strength. Stationary stairs or ladders shall be provided on the inside from the upper story to the roof as a means of escape in case of fire.”

The defendant owed a duty to its employes to comply with this statute and provide for them convenient and proper fire escapes, conveniently and properly located, with free and unobstructed passage thereto. While the statute does not specify the number of fire escapes, the number required depends upon the size of the factory, the number of employes and the inflammable character of the materials in the factory.

The history of the fire tends to show that one escape was not adequate. Pauley’s body was found in the sub-basement lying upon and covered with the debris of the building, near the foot of the shute and several feet distant from a number of bodies which were lying together in the sub-basement of the wing. While the proof failed to show very satisfactorily precisely how Pauley came to his death, the place where his body was found, its position in reference to the debris, its position in reference to the shute, tended to show that he attempted to leave the building by the fire escape and fell into the shute.

We are left, as was stated in Willy v. Mulledy, 78 N. Y., 315, to the necessity of weighing probabilities. We may assume that Pauley was familiar with the fire escapes; that he knew of the -obstructions to the use of the one attached to the main building.

We think there was evidence in this case which should have been submitted to the jury, whether the defendant was not guilty of negligence in failing to provide proper escapes from the building.

When a duty is imposed by statute upon an employer, the law-gives to a person having special interest in the performance a cause of action for a breach thereof causing damages. Willy v. Mulledy, supra, and cases therein referred to.

Had both fire escapes and a ladder to the roof been in a condition to be used, the panic among the operatives would very likely not have occurred, and they might have succeeded in escaping from the building.

The case of Schwander v. Birge, 33 Hun, 186, is, in its facts, similar to the case in bar. Schwander was a lad nineteen years of age, working in a wall paper factory in the city of Buffalo, and came to his death by the burning of the factory.

The alleged negligence of the defendants consisted in not providing proper means of escape from the fifth story of the factory, and particularly in not furnishing a staircase or ladder, or other means of access, to the scuttle in the roof. The evidence in that case failed to show the circumstances under which Schwander was killed.

It was not shown that he would have escaped by the use of a ladder to the roof had one been provided. The plaintiff was non-suited at the circuit, and the general term of this department set aside the non-suit, holding that it was a question for the jury whether his failure to escape was not due to the lack of means of escape, rather than to a lack of effort on the part of the deceased.

It was a question for the jury whether Pauley was himself free from negligence contributing to his death.

He was a lad between fourteen and fifteen years of age, was undoubtedly familiar with the premises and the means of .escape, and the jury had the right to infer that he made efforts to escape, but failed in so doing because of the inadequacy of the fire escapes.

He undoubtedly knew of the escape attached to the main building near where he worked, but may not have known the fact that the iron shutters prevented its being used.

The plaintiff’s complaint stated that Pauley, in attempting to descend the fire escape attached to the wing elevator, fell into the shute, which caused his death.

The defendant claims that there was no proof warranting the jury in finding that his death was caused in that manner, and that, therefore, the nonsuit was proper. We think there was evidence tending to show that he met his death in that way. There was a general allegation in the complaint that his death was caused by the negligence of the defendant, and without any fault or negligence of deceased. If necessary the complaint could have been amended to conform to the facts proven. The plaintiff was not confined upon the trial to proof that the deceased was killed by falling into the shute. He was allowed to prove all the facts, and we do nofe think there was such a variance between the pleadings and the proof as to mislead the defendant to its prejudice in maintaining its defense upon the merits.

The nonsuit should be set aside and a new trial granted, with costs to abide the event.

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


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    The Bradley Salt Co., Resp’t, v. Edward F. Keating, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    Stay—Cross action.
    After the commencement of this action for non-fulfillment of a contract of sale and an appearance by the defendant, the latter commenced an action in the New York common pleas against this plaintiff to recover the balance of the purchase price, and entered judgment by default. Held, that the supreme court had no power on motion to stay proceedings in the common pleas; that if the judgment was to be set aside for want of proper service, the motion should be made in that court.
    Appeal from an order of the Erie special term, restraining the defendant during the_ pendency of this action from prosecuting any action for any cause of action which could be set off or made a counterclaim in this action, and especially from proceeding with a certain action alleged to have been commenced by the defendant against the plaintiff in the court of common pleas of the city and county of New York.

      M. E. & E. M. Bartlett, for resp’t; Henry & F. C. McCloskey, for app’lt.
   Lewis, J.

The respondent commenced this action against the appellant on the 26th day of September, 1890, to recover damages against defendant for the unfulfillment of a contract between the parties for the sale by the defendant to the plaintiff of a quantity of salt works fittings or supplies. The place of trial is in the county of Wyoming.

The defendant appeared in the action; the complaint had not been served at the time of granting the order appealed from.

After the commencement of this action, and after his appearance therein, the appellant commenced an action against the respondent in the court of common pleas of the city and county of Hew York to recover the balance of the purchase price claimed to be due from the respondent for said goods sold.

He caused judgment to be entered by default against the respondent in that court for the sum of $1,017, and issued execution to collect the same.

Forming part of the judgment roll was the affidavit of one John E. Hogan, showing that he served the summons and complaint in that action by delivering the same to Walter H. Bradley, the treasurer of the defendant in that action, in the city of Hew York on the 7th day of October, 1890.

The plaintiff in this action moved this court at a special term thereof, held in the city of Buffalo, for the order appealed from.

It was made to appear by the papers read upon the motion to the satisfaction of the court that the summons and complaint in the common pleas action were not in fact served upon the defendant therein; that the judgment was irregularly entered.

The order appealed from was granted enjoining defendant from prosecuting any action for any cause of action which could be set off or made a counterclaim in this action, and especially from proceeding in the action in New York.

Courts of equity have frequently restrained the prosecution of actions in that court, when the subject matters in dispute could all be adjusted in a pending action between the same parties.

And the same power has been exercised in actions at law where there were special equitable grounds warranting the exercise of the equity powers of the court.

It is a general rule that equity will not restrain an action at law where the plaintiff has only a legal defense. Liftchild v. Smith, 7 Robt., 306 ; McCarthy v. Peake, 9 Abb. Pr., 164.

The appellant commenced his action in a court having jurisdiction of the subject-matter; this he had a legal right to do, and we fail to see that he violated, in so doing, any legal or equitable right of the respondent.

It is true that the whole controversy can be adjudicated in the Wyoming county action, but what equitable right of the respondent is violated by allowing the appellant to proceed to collect his judgment?

Respondent prefers that the questions should be tried at its home.

The appellant naturally wishes to carry on the litigation at his home.

There is still another reason why the order should not have been granted; judgment had been entered against the respondent in the common pleas court. True, the special term court was satisfied by the papers read upon the motion that it was irregularly entered, that that court never got jurisdiction of the defendant in that action, but the special term of the supreme court was not the tribunal to adjudicate that question; the common pleas court should have been moved to correct or vacate its judgment N. Y. & H. R. R. Co. v. Haws, 56 N. Y., 175.

The appellant having a judgment in a court of co-ordinate jurisdiction with the supreme court, it was not in the power of the supreme court upon motion to stay proceedings in that court; if the New York action was to be stayed by the supreme court, an equitable action should have been instituted for that purpose.

Where a defendant brings a cross action upon the same matter set up in his answer, a motion to compel him to elect either to abandon his answer or his cross action should be made in the cross action. Farmers' Loan & Trust Co. v. Hunt, 1 Code Rep., N. S., 1 ; Wright v. Delafield, 11 How., 465.

The order appealed from was, we think, improperly granted, and it should be reversed, with ten dollars costs and disbursements of the appeal against the respondent. The motion is denied, with ten dollars costs.

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


text:
    Thh People, Resp’ts, v. William H. Formosa, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    1. Insurance (life)—Discrimination—Laws 1890, chap. 401—Proof of INCORPORATION.
    On the trial of an indictment for unlawful discrimination as to premiums by the defendant as agent of an insurance company organized under the Laws of Vermont, there was proof that he assumed to act as the agent of such a company and issued to the insured a policy purporting to-be issued by such company, endorsed by him as such agent, and he testified that he had been acting as agent of “ our company.” Held, that by issuing the policy he affirmed that the company was existing and doing business in this state, and that he was its duly authorized agent, and not having raised the question on the trial, he could not, on appeal, claim that its incorporation was not sufficiently proven.
    2. Same—Constitutional law.
    Chap. 401, Laws 1890, prohibiting discriminations as to premiums between persons of the same class is not violative of any provision of the constitution. The legislature has the power to regulate the business of life insurance companies within the state.
    3. Same—Good character.
    The court charged that if the law had been violated the jury should bring in a verdict in accordance with the facts; that it was not their province to override the plain spirit and letter of the law, and say because they thought the defendant has a respectable character and standing in the community that it shall shield him from the consequences of a crime; that good character is important, not as to whether he committed the crime, but on the question whether the story he tells is the true one. Held, that the charge as a whole was correct, and that the jury was not misled by the-latter portion.
    4. Same—Policy may be taken by the jury.
    It is proper to allow the jury to take the policy with them to enable them, to see what the terms of the contract were.
    Appeal from a judgment of the Monroe sessions convicting the defendant of the crime of unlawfully paying and allowing a rebate of premium upon a policy of insurance upon the life of Orth 0. Graves, in violation of chapter 401 of the Laws of 1890.
    The defendant was sentenced to pay a fine of fifty dollars, and in default of payment to be imprisoned in. the Monroe county penitentiary not to exceed fifty days.
    This is also an appeal from an order overruling the defendant’s demurrer to the indictment, and from an order denying his motion for a new trial on the minutes of the court, and from an order denying his motion in arrest of judgment

      George A. Benton, Dist. Att’y, for resp’ts; W. H. Davis, for app’lt.
   Lewis, J.

The defendant was indicted October 30, 1890, for the crime of violating chapter 401 of the Laws of 1890, which reads as follows:

“ Section 1. Life insurance companies doing business in this state shall not 'make any discrimination in favor of individuals of the same class and of the same expectation of life, either in the amount of premium charged, or any return of premium, dividends or other advantages, and no agent of any such insurance company shall make any contract for insurance or agreement as to such contract of insurance, other than that which is plainly expressed, in the policy issued, nor shall any such company or agent pay or allow, or offer to pay or allow, as inducement to any person to insure, any rebates of premium, or any special favor or advantage whatever in the dividends to accrue thereon, or any inducement "whatever not specified in the policy.”

Section 3 of the act makes the violation of it a misdemeanor.

The defendant interposed a demurrer to the indictment on several grounds mentioned in the demurrer. The indictment seems to follow the language of the statute and sufficiently describes the crime charged, and as the appellant does not in his brief urge this question, we assume that he is satisfied that the decision of the court was correct.

The appellant makes two points upon which he relies for the .reversal of the judgment: First. That the judgment should be reversed because there is no evidence that the National Life Insurance Company of Montpelier, Vermont, is a corporation as charged in the indictment.

The indictment charged that the company was a corporation duly organized under the laws of the state of Vermont and legally doing business in the state of New York as a life insurance company. The articles of incorporation of the company were not proven and no question seems to have been raised upon the trial as to the fact that such a corporation existed. There was proof that the defendant assumed to act as its agent. He caused to be delivered to the insured a policy purporting to be issued by the National Life Insurance Company, of Montpelier, Vermont The policy was endorsed: “ William H. Formosa, General Agent, National Life Insurance Company, of Montpelier', Vermont, 17 and 18 Osborne Block, Rochester, N. Y.”

He testified that he had been acting as the agent of Our Company,” and then went on to explain the transaction with the insured in respect to the policy in question. No other policy issued by any other company was proven. The People offered in evidence a policy of insurance which purported to be issued by the defendant as agent of the company.

Graves, the person insured, testified that the policy was delivered to him by the defendant By issuing the policy he affirmed that the company existed and was doing business in the state of New York, and that he was its duly authorized agent; and not having raised the question upon the trial, we think it must be held to have been sufficiently proven.

The appellant contends that the law under which the defendant was convicted is unconstitutional, being repugnant to the clause of the constitution which secures equality of rights to all of the people of the state and protection against proscription and disparagment of their persons, their property and their employment, and impairs the obligation of contracts.

The act attempts to regulate and control dealings between life insurance companies, their agents and the persons insured by them.

It provides that the company shall not make any discriminatian in favor of individuals of the same class and of the same expectation of life, but shall charge the same premium for insuring the lives of such persons.

The business of life insurance has become so general, such a large part of the public are interested in one way and another with the success and permanency of the companies, if carefully and properly managed, they are such an important factor in the affairs of the world, that it may be said that the public generally are interested in their welfare. It has become a matter of common, notoriety and knowledge that in the sharp competition among the agents of the different companies, that large inducements in the way of rebates of premiums, and special favors and advantages are extended to persons to induce them to insure. The agents are compensated for their services in procuring the policies by a percentage of the premium paid by the insured. The companies, in their strife for business, pay large percentages of the premiums to-their agents, to encourage them to vigilance and industry in procuring applications for policies, with the expectation and understanding that the agents will offer inducements in the way of rebates of premiums. There was evidence in this case showing that Formosa’s percentage upon the policy to Graves was sixty-five per cent of the premium.

The result of this strife for business was disastrous to the companies, resulting in serious losses to the beneficiaries named in the policies, and hence the legislature passed the act of 1890, with a view of regulating this important branch of the business of the country. The act should be held constitutional unless it is seen to plainly violate some provision of the constitution. Similar acts have been passed by the legislatures of the different states and have been held by the courts to be valid.

The act of 1888, fixing the maximum charge for elevating grain, and making its violation a misdemeanor, was held by the court of appeals not to be violative of the constitutional guaranty protecting private property, and was held to be a legitimate exercise of the police power of the state over a business affecting the public generally. The People v. Budd, 117 N. Y., 1; 26 N. Y. State Rep., 533.

In Little Rock & Fort Smith R. R. Co. v. Hanniford, 49 Ark., 291, the court held as valid the Arkansas act of 1885, prohibiting any railroad company in the state from charging a greater sum for the transportation of freight than is specified in the bill of lading, and imposing a penalty for a violation of the act; the court said: “ This act being general and uniform in its operation upon all persons coming within the class to which it applies, it does not come within that special legislation prohibited by the constitution. For it applies to and embraces all persons ” who are or who may come into certain situations and circumstances, “ and is general and uniform, not because it operates upon every person in the state, for it does not, but because every person who is brought within rhe relations and circumstances provided for is affected by the law.”

The inter-state commerce act of 1887 regulates the transporta"Lion of freight by common carriers, and prohibits making special rates, rebates, draw-back or other device, and prohibits receiving from any person or persons a greater compensation for any service Tendered or to be rendered in the transportation of persons or property subject to the provisions of the act than they charge, demand, collect or receive from any other person or persons for doing a like and contemporary service in the transportation of property under substantially the same circumstances and conditions. This act has been held to be valid.

If the legislature has the power to regulate the charges for elevating grain or transportation of passengers and freight, it is difficult to see any reason why the business of insurance companies may not be in like manner regulated.

Ho injustice is done by this act to any insurance company or agent thereof who desires to do a legitimate and proper business. It does prohibit them from making unjust discriminations amongst individuals of the same class and of the same expectation of life insured by them. It seems to be a wholesome and proper act, .and not in violation of any provision of the constitution.

The appellant claims that the charge of the court upon the question of good character was erroneous, and complains of the following statement of the court to the jury: “ It is sufficient for your consideration of the case that it is the law of this state, and if it is the law it is to be enforced. If it has been violated, you are to bring in a verdict in accordance with the facts, and it is not your province nor your privilege to override the plain spirit and letter of the law and say, because you think a man has a respectable character and respectable connections and standing in the community, that it shall shield him from the consequences of a crime, when perhaps the same considerations might not occur to you in behalf of a man not so respected or vouched for by his fellows. The law is no respecter of persons. It is no excuse to say that a man has a good character, and yet it would be foolish to say that such a question has no weight, because it is a question of importance to know, as bearing upon whether a defendant would be likely to tell the truth or untruth in the matter. It is important, not as to whether he committed the crime, but upon the question whether it is likely the story he tells is a true one and convinces you that no crime has been committed.

“ It is the same with the testimony of the gentlemen called to vouch for the defendant’s good character.”

Ho exception was taken to any part of the charge of the court, and we are not able to see that the jury could have been misled by the remark of the judge that the defendant’s character was not important upon the question as to whether he committed the crime. Taking the whole charge together, the jury must have understood the court to mean, if they were satisfied from the evidence that the defendant was guilty of the crime charged in the indictment, that his previous good character should not be allowed to shield him.

At the close of the charge the district attorney asked the court “ to allow the jury to take the policy, in view of the phase of the law that the terms of the contract could not be changed.”

The court remarked to the jury: “You will observe that there .are two phases of the law under which there will be a violation ; first, that no different contract shall be made by an agent or company from that expressed in the policy or contract; second, that no agent shall offer any inducement not set forth in the policy or contract. So you may take it (the policy) to determine what phase of the law has been violated.” This is complained of by the defendant. The court certainly was unfortunate in the selection of language in this part of the charge. Section 1 of the act in question first prohibits any discrimination by insurance companies in favor of individuals of the same class and of the same expectation of life, either in the amount of premium charged or in return of premiums, dividends or other advantages, and prohibits any agent from making any contract different from that expressed in the policy, and farther provides that no company nor its agent shall offer to pay or allow, as an inducement to insure, ■any rebates of premium or any special favors, etc. The desire, -evidently, of the district attorney, in making the request to the court to have the policy delivered to the jury, was to enable the .jury to see what the terms of the contract were. It was proper that they should be permitted to examine it, and while there were not “ two phases of the law under which there might be a violation,” and the charge was not correct in that respect, the defendant made no request to the court to correct that part of its -charge, neither did he take any exception. The evidence that the ■defendant was guilty of violating the statute being ample, we do not see how he was prejudiced by this portion of the charge.

There was sufficient evidence to sustain the verdict. All questions of fact were fairly submitted to the jury and we find no error in the instructions of the" trial court prejudicial to the ■appellant.

The judgment of conviction appealed from should be affirmed and the proceedings remitted to the court of sessions of Monroe •county, with directions to proceed thereon.

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


author: Ehrlich, Ch. J.

text:
    Sebastian G. Brinkman, App’lt, v. Henry S. Eisler, Resp’t.

      (City Court of New York, General Term,

      Filed October 15, 1891.)

    ■Contbact—Unlawful act.
    Plaintiff contracted to erect an awning over the sidewalk in front of defendant’s premises, but was preventing from completing it by the police. Held, that such structure being illegal and in the nature of a nuisance, the contract was one for the performance of an unlawful act, and that plaintiff could not recover either under the contract or upon a quantum meruit.

    Appeal from order setting aside the verdict of a jury and granting a new trial.
    The action was brought to recover $200.89 as the value of work, labor and services performed and materials furnished. The answer admitted the performance of the work and furnishing of materials, but alleged that they were performed and furnished under an express contract to erect an awning in front of defendant’s premises, for which $155 was to be paid on completion, and that the said awning was never completed. It also alleged that the contract was against public policy and illegal, as it was for the erection of said awning in a street of New York city, and in violation of law and the ordinances of said city. It appeared that plaintiff’s work.was stopped by the police.

      A. M. & G. Card, for app’lt; Benno Loewy, for resp’t.
   Ehrlich, Ch. J.

We agree with the learned judge who tried the cause, that where a person agrees to do an unlawful act, and incurs expense, he cannot recover, either on the illegal contract or for a quantum meruit, for the law leaves the parties where they placed themselves. The authorities hold that a structure such as the plaintiff undertook to erect is illegal, and in the nature of a nuisance. See Trenor v. Jackson, 15 Abb., N. S., 125, and on the subject generally see Am. R. T. Co. v. Hess, 125 N. Y, 641 ;, 36 N. Y. State Rep., 252; Lahr v. Met. E. R. R. Co., 104 N. Y., 268; 4 N. Y. State Rep., 340; Story v. N. Y. Elevated R. R. Co.,. 90 N. Y., 122; Callanan v. Gilman, 67 How. Pr., 464; S. C., 107, N. Y., 360; 12 N. Y. State Rep., 21; Clifford v. Dam, 81 N. Y., 52; Knowlton v. Congress & Empire S. Co., 57 id., 518; Materne v. Horwitz, 101 id., 469 ; Foley v. Speir, 100 id., 552 ; Goodrich v. Houghton, 29 N. Y. State Rep., 905; Arnot v. Pittston Coal Co., 68 N. Y, 558; Pease v. Walsh, 39 N. Y. Super Ct., 514; McDonough v. City of Brooklyn, 1 W. Dig., 390 ; Archer v. McDonald, 36 Hun, 194; Booth v. Mill, 60 N. Y, 487 ; N.Y. C. & H. R. R. Co. v. Standard Oil Co., 87 id., 486; Tompkins v. Dudley, 25 id., 272; Farrell v. The Mayor, 20 N. Y. State Rep:, 12; Anderson v. The Equitable G. L. Co., 12 Daly, 462; Cohen v. The Mayor, 113 N. Y, 532 ; 23 N. Y. State Rep., 509.

For these reasons and those assigned by the trial judge on making the order appealed from, the order must be affirmed, with, costs.

Van Wyck and Newburger, JJ., concur.


text:
    Pauline Kahn, Resp’t, v. Joseph S. Lesser, Impl’d, App’lt.

      (City Court of New York, General Term,

      Filed October 22, 1891)

    Judgment—Jurisdiction—Appearance.
    The record of a judgment recovered in Wisconsin against defendants, who were residents of this state, showed that no service of summons was made but that an attachment was issued, on the return of which defendants appeared by attorney; that judgment was render d for defendants; that an appeal was taken and on a new trial in the appellate court the defendants appeared by the same attorneys and a judgment was_ recovered against them. In an action on the judgment defendants denied having authorized such appearance. Held, that presumptively the attorneys who appeared had authority to do so, and whether they had or not was a question for the jury.

      Appeal from judgment entered in favor of the plaintiff upon •a verdict of a jury and also an appeal from an order denying a motion to set aside the verdict and for a new trial upon the judge’s minutes on all the grounds stated in § 999 of the Code of Civil Procedure.
    This action was brought by plaintiff to recover the sum of $156.10, with interest thereon from June 13, 1888.
    The plaintiff’s complaint alleged that about August 19, 1887, the defendants were co-partners, doing business in the city of JSTew York under the firm name of Lewis, Cable & Lesser.
    That at that time the plaintiff commenced an action against the defendant’s firm in a justice’s court in and for the city of Milwaukee in the state of Wisconsin for the recovery of $107.58 for money expended for said defendants, and in that action the defendants duly appeared by their attorneys, Fiebing & Killilea.
    That afterwards and on or about October 28, 1887, the action ■came on for trial and resulted in a verdict in favor of defendants.
    That afterwards the plaintiff appealed from said judgment to the superior court of Milwaukee, Wisconsin, and under the provisions of the laws of said state of Wisconsin the superior court was created and vested with full power and jurisdiction to hear, try and determine all actions pending in said county court on January 1, 1888, and that on January 1, 1888, the said action between plaintiff and defendants was then pending in said court aforesaid.
    That thereafter and on or about June 13, 1888, the action came on for trial, the said defendants again appeared and were duly represented by their attorneys, the said Fiebing & Killilea, and that on the said trial the judgment of the justice was reversed and a judgment against defendants entered in favor of the plaintiff for the sum of $156.10.
    The defendant Lesser’s answer denied the defendant’s co-partnership, denied that the defendants appeared by Messrs. Fiebing & Killilea, their attorneys, in said action, and denied that when the said cause (if any there was) came on for trial in the superior court, the defendants-again appeared by said Fiebing & Killilea, their attorneys.
    It also denied any .knowledge of the instituting or progress of the suit in Wisconsin.
    And for a further and distinct defense alleged that the defendant, Lesser, during all the time mentioned in the complaint was a resident of the city and county of Mew York and was never personally served with any procéss in any action brought by plaintiff, nor did he voluntarily appear in any such action, nor did he authorize any one to appear for him therein, nor did he in any manner or form submit to the jurisdiction of the court in which such action was pending or transferred to.
    The trial was had before Mr. Justice John Henry McCarthy and a jury.
    The plaintiff relied wholly on the foreign judgment roll together with the deposition of one Stephen W. Granger, who in -effect testified to the force and effect of the laws, rules and regu. lotions of the laws of Wisconsin, and further testified to the proceedings instituted by him on behalf of plaintiff, and to the effect, that the money that was garnished in the hands of Espenheim and Bartels was released and the garnishees were discharged and that, nothing has been collected on the judgment, and the whole amount remained unpaid, and rested his case. The judgment roll recited the non-service and non-residence of the defendants.
    The defendant at the close of the case moved for a non-suit,, and finally for a direction of judgment in his favor, all of which was denied him by the trial judge.

      H. Joseph, for app’lt; Paul Jones, for resp’t.
   Ehrlich, Ch. J.

The record shows that the Wisconsin-court-had jurisdiction of the subject matter of the action pending therein, and acquired jurisdiction of the defendants, after publication, by their voluntary appearance.

Presumptively, the attorneys who appeared for the defendants-had authority so to do, and whether they had or not was a question for the jury, and they found for the plaintiff. The jury evidently disbelieved the defendants. No error having been committed at the trial, and the case having been submitted to the-jury as fully as the defendants requested the submission of the same, it follows that the judgment entered on their verdict must, be affirmed, with costs.

Van Wyck and Newburger, JJ., concur.


author: Newburger, J. Ehrlich, Ch. J.

text:
    Joseph A. Bornstein, Resp’t, v. Robert L. Harding, App’lt.

      (City Court of New York, General Term,

      Filed October 22, 1891.)

    Aebest—Affidavit.
    An affidavit made by the assignee of a claim for goods sold, stating that defendant by means of false representations purchased said goods .from theaffiant’s assignor, and that the assignor sold said goods on the faith of such representations, is insufficient to -warrant the granting of an order of arrest, as it is apparent that the facts stated were not within the personal, knowledge of the affiant.
    (Ehrlich, Oh. J., dissents.)
    Appeal from order denying motion to vacate arrest.

      Carpenter & Mosher, for app’lt; Thomas Nolan, for resp’t.
   Newburger, J.

This isan appeal from an order denying a, motion to vacate an order of arrest herein.

It appears that the order of arrest was granted upon an affidavit-made by the plaintiff, from which it appears that the defendant, a resident of Portland, Maine, on or about the 11th day of March,. 1891, purchased from one Julius M. Cohen, plaintiff’s assignor, a. quantity of segars, and that the defendant represented himself as-being perfectly responsible, and that on the faith of these representations said Cohen sold the segars to the defendant, which said, representations were false and fraudulently made.

The motion to vacate was made on the papers upon which the order of arrest was granted.

The affidavit of plaintiff did not warrant granting the order of arrest

It is apparent from the affidavit that the facts stated were not within the personal knowledge of the plaintiff, and yet he positively alleges conversations between defendant and plaintiff’s assignor, and the effect of such conversation on said assignor’s mind.

The order appealed from must be reversed, and the motion to vacate order of arrest is granted, with costs.

Van Wyck, J., concurs.

Ehrlich, Ch. J.

(dissenting).—The plaintiff swears that on March 11,1891, the defendant purchased of the plaintiff’s assignor a bill of' cigars worth $67.60, stating that he was perfectly responsible, and doing a large business, and that, within a few days thereafter, the defendant failed, and made a general assignment, claiming to be insolvent. These facts were not denied, for the motion to vacate the order of arrest was made on the original papers. Unxexplained, the facts warranted the order, and the motion to vacate it was properly denied. The point, that the facts were not within the plaintiff’s knowledge, is without force. He has sworn to them, and they are inferentially within his knowledge. He may have been present at the time.

Upon the record, the order appealed from must be affirmed, with costs.

Order reversed, and motion granted, with costs.


author: Newburger, J.

text:
    Ferdinand Fish, App’lt, v. William Hodsdon, Resp’t.

      (City Court of New York, General Term,

      Filed October 29, 1891.)
    Brokers—Commissions.
    Plaintiff was employed as real estate agent for defendant under several powers of attorney, authorizing him to take charge of certain property, negotiate for their letting, prepare leases and collect rents, for which he was to receive a commission of five per cent. Held, that such compensation was for all services rendered under such power of attorney, and that plaintiff could not recover extra compensation for leasing the property.
    Appeal from judgment in favor of defendant, entered on verdict directed by the court.

      Frederick Littlefield, for app’lt; F. G. Wild and George McAdam, for resp’t.
   Newburger, J.

This action is brought to recover commissions of (2£) two and one-half per cent for leasing certain real estate belonging to the defendant. The defendant in his answer, among other things, pleads payment.

It appears that the plaintiff acted as real estate agent for the defendant from February, 1885, to April, 1888, under several powers of attorney, which authorized him to take charge of and assume general management of Nos. 85, 87 and 89 Broad street, and to negotiate for the leasing of the stores and rooms in said buildings, to prepare the necessary leases, and to collect the rents, for which services he was to receive a commission of five per cent.

In 1887 defendant bought the property No. 125 Chambers street, and the plaintiff was employed to collect the rents of the premises.

.In pursuance of such employment, plaintiff let the premises, collected the rents and duly accounted for the moneys so collected, and deducted the commission of five per cent for collections, and no deduction was ever made for any commissions for the letting of the premises.

At the close of the evidence a verdict was directed in favor of .the defendant, to which an exception was duly taken.

The verdict was properly directed.

The two powers of attorney under which the plaintiff acted not only provided for the collection of the rent, but also for the letting of the premises, and the drawing of the necessary leases, for which services he was to receive five per cent.

The compensation was not only for the collection of the rents, but for all the services plaintiff rendered under such power of attorney.

As to the Chambers street property, plaintiff admitted that he acted upon the same terms as to the Broad street property.

There being no conflict of evidence, the direction by the trial justice was proper.

Judgment affirmed, with costs.

Ehrlich, Oh. J., concurs.


text:
    The United States National Bank, Resp’t, v. The Homestead Bank, App’lt.

      (City Court of New York, General Term,

      Filed October 29, 1891.)

    Banks—Cleap.ing house.
    Plaintiff undertook to do defendant’s business through the clearing house, provided defendant kept a certain amount on deposit with it. Defendant failing to do so, an agreement was made that a certain amount should be allowed for such services, for a balance of which this action was brought. Eeld, that a motion to dismiss was properly denied, and a judgment for plaintiff would not be disturbed.
    Appeal from judgment in favor of plaintiff, entered on verdict.

      Walter L. McCorkle, for resp’t; Charles F. McLean, for app’lt.
   Newburger, J.

The plaintiff brought this action to recover the balance of an amount due upon a contract for services in clearing for defendant for over a year and transacting its business in the New York Clearing House.

It appears that the defendant started business as the Ninth Avenue Bank, bnt subsequently changed its name to the “ Homestead Bank.” It then applied to the plaintiff to secure the facilities of the Clearing House, and plaintiff undertook to do the business of the defendant through the Clearing House, provided defendant would keep on deposit with plaintiff $20,000 as a compensation.

Defendant failed to keep on deposit with the plaintiff the amount agreed, and an agreement was then made that $1,200 should be allowed, to plaintiff for its services in the Clearing House, of which sum $500 was paid.

The case was properly submitted to the jury.

There are no exceptions either to the charge or in the admission of testimony, that show error on the part of the trial justice.

The motion to dismiss was properly denied, and the judgment must be affirmed, with costs.

Ehrlich, Ch. J., and Vah Wyck, J., concur.


text:
    Morris Littman, App’lt, v. Mary M. Coulter, Adm’rx, Resp’t.

      (City Court of New York, General Term,

      Filed October 29, 1891,)

    Landlord and tenant—Evidence.
    Pending proceedings to relieve plaintiff from a purchase at a judicial sale of the premises in question, which were occupied by defendant’s intestate, a receiver of rents was appointed by agreement. In an action for rent the defense was that defendant’s intestate was to occupy during the period in question without paying rent, and defendant testified to such an arrangement. Held, that it was proper for plaintiff to contradict such testimony by the receiver,.and the exclusion of his testimony was error.
    Appeal from judgment in favor of defendant.

      Adolph L. Sanger, for app’lt; Wm. L. Flagg, for resp’t.
   Newburger, J.

This action is brought to recover rent of certain premises in this city, for the months of July, August, September and October, 1886. In 1883, Vernon. K. Stevenson let to the defendant’s intestate part of the premises on the southeast corner of Fifty-ninth street and Fifth avenue, under a yearly lease, at a rental of $165 per month.

Stevenson having died, partition proceedings were instituted, and this property was sold to the plaintiff in February, 1886.

At that time defendant’s intestate still continued and was in possession of the premises.

The plaintiff did not take title immediately, he claiming that there appeared some defects therein, and proceedings were instituted to relieve him of such purchase.

Pending such proceedings, the parties to the partition suit and plaintiff entered into an agreement appointing one Richard H. Barker as receiver of the rents in the meantime, and the defendant’s intestate continued to pay the rent up to and including the month of June, 1886. The answer of the defendant admits that her intestate was in possession until October 1, 1886, but claims that he was to pay no rent during such period, and also alleges a counterclaim for conversion of certain personal property.

On the trial of this action Richard H. Barker was asked:

Q. Did Mr. Hugh Stevenson ever tell you in any way, shape, manner or form, when he paid you the rent, as you say he did, that Mr. Coulter was to continue there, without paying rent, free of charge? Objected to. Objection sustained. Exception.

Q. Did you receive any word from Mr. Littman, authorizing you to let Mr, Coulter continue in those premises, free of charge ? Same objection, ruling and exception.

We think the trial justice erred in excluding this testimony. The defense was that Coulter was to remain on the premises without paying rent, and defendant was permitted to testify to such an arrangement j it was, therefore, proper on the part of the plaintiff to contradict any such testimony by the person chosen as trustee of the rents. *

Without considering any other questions raised by appellant’s counsel, the judgment must be reversed and a new trial granted, with costs.

Ehrlich, Ch. J., concurs.


author: Van Wyck, J.

text:
    Joseph Glaser, Resp’t, v. Owen Cumisky, App’lt.

      (City Court of New York, General Term,

      Filed October 29, 1891.)

    1. Lease—Covenant to pat bob abticles put on pbemises.
    At the time of executing a lease a contemporaneous agreement was made by the lessor to pay for such steam boiler, engine and pump as should be placed on the premises, the last payment to be made “ on the determination of the lease, provided said boiler, etc., shall then be in good condition and repair.” Defendantwas dispossessed for non-payment of rent. Held, that the agreement was thereby cancelled, and defendant could not counterclaim such last payment in an action for rent; that the termination of lease mentioned meant the end of the time at which the term was to expire by the provisions of the lease, and not its termination by summary proceedings for defanlt in payment of rent.
    2. Same—Damages.
    In an action brought by a landlord against his tenant after the latter has been dispossessed in summary proceedings, the plaintiff is entitled to recover the reasonable value of the expenses incurred in removing the defendant’s property, consisting of heavy machinery, under the warrant.
    Appeal from a judgment entered on the verdict of a jury in favor of plaintiff.

      John Fennel, for resp’t; Thomas McAdam, for app’lt.
   Van Wyck, J.

This plaintiff, who succeeded to all of the rights of the original lessor, recovered judgment in summary proceedings commenced by him in a district court to dispossess defendant, the original lessee, for non-payment of rent, and now brings this action to recover such unpaid rent and his reasonable expenses incurred in removing defendant’s property, heavy machinery, from the premises in execution of the warrant of dispossess. The defendant contests such recovery, and alleges by way of counterclaim that a contemporaneous written agreement was made and delivered with the original lease by which the original lessor agreed to pay him $1,000 for such steam boiler, engine and pump as he should construct and place on the premises, to be paid by allowing him $500 out of the first three months rent, which was so allowed, and the remaining $500 to be paid “ on the determination of. the aforesaid lease, provided said boiler, engine and pump shall then be in good condition and repair, and that if upon the termination of the aforesaid lease a further term shall be granted,” then this second payment of $500 shall be waived and the renewal accepted in lieu thereof.

The lease and contemporaneous agreement bear the same date and were recorded on the same day in the same book and page at the same hour and minute. The agreement makes reference to the lease, and they both relate to the same subject matter. The plaintiff and defendant both contend that the lease and agreement should be construed as one instrument, and in this they are right, for the established rules of construction require that they should be read just as if the agreement was a covenant contained in the lease. The defendant further alleges that the boiler, etc., were left on the premises, in good condition, and counterclaims for the $500 under the agreement with the original lessor.

At the trial defendant was allowed to give in evidence all proof offered to substantiate the counterclaim subject to subsequent ruling as to its materiality and, at the close of the case, Chief Justice Ehrlich ruled that the counterclaim was not good in law and instructed the jury to disallow it, to which defendant excepted. Defendant’s contention is that this agreement is a covenant running with the land and binding on the plaintiff, all of whose rights came from the original lessor. Be that as it may, defendant’s counterclaim would not be good against the original lessor if he had remained landlord until the dispossession under the warrant in the summary proceedings and had continued owner of the property and brought this action for unpaid rent, and, of course, it is not good as against plaintiff. The defendant has no cause of counterclaim for the price agreed to be paid for the boiler, etc., at the termination of the lease, which means at the end of the time at which the term was to expire by the provisions of the lease and not the termination of the lease and term by summary proceedings for his default in payment of the Lent.

He made default in such payment, when due, during the life of the term and was removed from the premises for such default by summary proceedings under the Code, § 2253 of which provides “ that such removal of a tenant from the demised premises cancels the agreement for the use of the premises, if any, and annuls accordingly the relation of landlord and tenant,” except as to landlord’s right to collect rent, etc., already due and payable, or for value of occupation, etc. But before either of the codes, under the revised statutes and at common law, where the lease contained a right of re-entry for non-payment of rent, it was invariably held that the payment of rent, under a lessee’s covenant to pay the same, was a condition precedent to the performance of the lessor’s covenants which, by the terms of the lease, were to be performed at a time subsequent to the time at which the lessee had covenanted to pay the rent.

This rule of determining what covenants are precedent, by having regard to the time of their performance, applies with equal force to contracts other than leases. The rule is, that if the lease provides for a re-entry and forfeiture for non-payment of rent, the lessee will not find any relief, even in equity, from the harsh effects of forfeiture for such default, even though he applies for such relief before an actual re-entry is made by warrant of dispossess unless lie first pay or tender the amount of the unpaid and overdue rent. There is no pretense that this defendant paid or offered to pay the overdue rent at any time. Paine v. Trinity Church Corporation, 7 Hun, 89.

There the Trinity Church Corporation had commenced, in a district court, summary proceedings to dispossess Paine for nonpayment of rent, and he applied to the supreme court for an injunction restraining the corporation from continuing such proceedings, asserting that the building which had been erected on the premises by the tenant was worth $40,000,and that the corporation had covenanted to pay the value of the same at the termination of the lease, and he was turned out of a court of equity with the admonition that he must either pay the overdue rent or suffer the consequences of his default. This defendant has made no offer to pay the overdue rent and it is too late for him to do so now, for he is barred by the judgment .in the summary proceedings. Johnston v. Bates, 48 Supr. Ct., 180.

There the plaintiff leased premises to one Sturgis, who covenanted to erect a building thereon to cost not less than $30,000, and to pay ground rent and taxes, and the lessor was to pay one-half of the value of the building at the expiration of the term. The lease came by mesne assignments from the original lessee to. defendants. The plaintiff re-entered, for non-payment of rent, by a warrant in summary proceedings and then sued the defendant for unpaid taxes which became due before such re-entry. The defendant set up a counterclaim for one-half of the value of the building so erected and it was held that such counterclaim was not maintainable. So in the case of People’s Bk. v. Mitchell, 73 N. Y., 406, the same rule of law was laid down. There defend, ant’s assignor had demised premises to plaintiff’s assignor under a lease which required the lessee to pay rent and taxes .and the lessor to either grant a new term or pay the value of the buildings erected by the lessee on the premises, but the defendant, the assignee of such lessor, discovering that the taxes for 1866 had not been paid as agreed, refused to either give a renewal lease or pay for the value of the buildings so erected, whereupon the plaintiff sued him for such value and it was held that the action could not be maintained. See also the same principle sustained in Finkelmeier v. Bates, 92 N. Y., 172.

Thus is found abundant authority for the trial judge’s ruling that this defendant’s counterclaim was not maintainable, and so he ruled correctly when he held that the plantiff could recover the reasonable value of the expenses incurred by him in causing the removal of defendant’s property, consisting of large and heavy pieces of machinery, from the premises, by the execution of the warrant of dispossess.

Defendant’s complaint that the plaintiff was allowed against his objection to prove the amount which he paid for such removal cannot avail, as the plaintiff proved by a competent witness that the amount so paid was a fair and reasonable price for the work rendered in making such removal; and the competency of the witness is shown at folios 142 and 143. The verdict was justified by the evidence and the judgment must be affirmed, with costs.

Newburger, J., concurs.


author: Macomber, J.

text:
    The Hamilton Coal Co., Pl’ff, v. Charles Bernhard et. al., Def'ts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    1. Corporations—Unauthorized contract by.
    A contract of a foreign corporation having an office in this state, which appears to have been executed in the general line of its business and under the direction of its accredited managers, and in pursuance of which some of the product of the corporation had been delivered by it, is admissible against it, even though the person executing the contract was not competent to do so under the by-laws.
    2. Same—Ratification.
    Even if the agent was incompetent, subsequent delivery under the contract by the corporation is a ratification.
    Motion by the defendants for a new trial, after a verdict for the plaintiff directed by the court at the Monroe circuit January 6, 1891, and the exceptions thereon ordered to be heard at the general term in the first instance.

      John A. Bernhard, for def’ts; M. A. Gearon, for pl’ff.
   Macomber, J.

This action was brought to recover the price of 371 and 90-100 tons of run of mine coal at the agreed price of eighty cents per ton, and of 69 and 7-100 tons of slack coal at the agreed price of twenty-five cents per ton, which was all sold and delivered by the plaintiff to the defendants during the month of May, 1885. The answer admitted these allegations of the complaint, that the value of the coal was $314.96, and that the same became due and payable June 15, 1885.

" The further answer of the defendants is a counterclaim for damages for breach of a written contract between the parties as follows :

“The Hamilton Coal Company, “Buffalo office, “No. 25 West Swan Street, “ Buffalo, N. Y., May 1, 1885. ^

“ Memorandum of agreement between the Hamilton Coal Company, of Buffalo, N. Y., and Bernhard & Casey, Coal Dealers, of Bochester, N. Y.

Said Bernhard & Casey are to have the exclusive sale of our coal in Bochester, N. Y., and that locality, during the year ending May 1, 1886. The coal to be delivered on board cars at Bochester, at the following prices: Screened lump, $2.55; lump and nut, $2.45; run of mine, $2.30; nut, $2.25; nut and slack, $1,95; slack, $1.75 (as dealers ten cents per ton less than these figures], subject, only, to such charges as the board of coal commissioners may direct, and increase or decrease of freight rates; also understanding that to have this exclusive contract at least fifteen thousand tons must be sold. Said dealers looking after and paying the freight charges, payments for the coal to be made on or before the fifteenth of the following month. The coal company furnishing none but coal mined from their own mines at Reynoldsville, Pa., at such times as ordered, and are not‘accountable for any delays, such as strikes, railway delays beyond the control of the coal company.

“ Hamilton Coal Company,

“R 0. Rice,

“ Secretary.”

The plaintiff is a corporation organized under the Laws of the state of Ohio, and it had at the time stated an office in the city of Buffalo, N. Y, where it conducted a general business of selling coal. At this office the board of directors occasionally met for the transaction of business. There were usually present the general agent of the company, Mr. Dennison, and the secretary, R. 0. Rice, who was also one of the directors of the plaintiff.

Preceding the execution and delivery of this páper, the plaintiff, by Mr. Rice as its secretary,' had addressed to the defendants a letter bearing date January 10, 1885, which is, in substance, that he had laid before the board of directors the question of the price of coal to be furnished to the defendants, stating such price as follows:

“We will deliver on board cars, at our mines at Reynoldsville, 'Pa., mine run coal, our best quality, at eighty cents per net ton; lump and nut $1 per net ton; lump coal $1.10 per net ton; nut and slack sixty-five cents per net ton; nut coal eighty cents per net ton; slack forty cents per net ton; and on the supposition that you will take our coal continuously during the season; but if only ordering Occasionally, the rate will be five cents per ton higher on all grades. These rates, with one dollar and thirty cents freight, we hope, will enable you to compete successfully with any others.

“(Signed) Hamilton Goal Company.

“By R C. Rice, Secretary.”

On the trial the court properly ruled that the affirmative of the issue made by the pleadings rested upon the defendants. As the complaint and answer were framed, it was clear that the plaintiff was not required to prove any fact to entitle it to the judgment which was directed, namely, the sum of $314.96, unless the affirmative defense, stated as a counterclaim, should prevail in whole or in part.

The defendants called as a witness, upon the question of their counterclaim, the plaintiff’s secretary, R 0. Rice, and upon his evidence, mainly adduced upon cross-examination made by the plaintiff’s counsel, the court rejected from the case, as evidence, the written contract above set forth. To such ruling an exception was taken, and it is upon this exception that the defendant’s case mainly depends.

The testimony of the witness Rice is to the effect that at the time stated he was the secretary of the company ; that he spent a considerable time at the Buffalo office, where there were two other employes of the company besides himself ; that Charles W. Dennison was the sole agent for the sale of coal in the state of Hew York, and had power tb enter into any contract for the sale of ■ coal, subject to the board of directors ; that he (the witness) had presented to the board of directors a communication from the defendants, received by him prior to March, 1885, and that in pursuance of the orders of the board he wrote the letter of January 10, 1885; that the written contract above mentioned was signed and mailed by him to the defendants at the solicitation of Mr. Dennison, sales agent of the plaintiff, but that he had had no talk with the defendants about the contract before he wrote it. He testifies that he never was authorized by the plaintiff, or by its board of directors, to make, sign or deliver this instrument. He produced and proved the by-law of the plaintiff, which reads as follows: “Ho contract made by any officer or agent of the company shall be valid without the previous authorization or subsequent ratification of the board of directors.” Such was the substance of the evidence upon which the defense was excluded. Bice,-it appears, however, was permitted to testify, without objection, that the object of the written paper was to enable the defendants to get contracts for coal by having something to show to purchasers that they had the handling of this particular coal at Bochester exclusively, and that they would be able to fill orders for it in large amounts, and that he did not consider this paper a contract between our company and Bernhard & Oasey. He gave further testimony, from which it is argued in behalf of the plaintiff that the coal for which this action was brought was not delivered under the alleged contract, but under a previous contract between ■the parties. This portion of his evidence, however, is contradicted by the defendant Bernhard, who testified that the prices set forth for the coal mentioned in the contract are at the rates specified in the instrument of May 1, 1885, with the freight rates added; and ■that after receiving this contract the defendants purchased coal from the plaintiff and had it shipped to Bochester, where they sold it, and that the coal which they received was ordered under this contract and delivered in the month of May, and is the same •coal for which this action was brought.

It is further shown that the defendants addressed their communications invariably to the Hamilton Coal Company at its Buffalo office, and that the responses came in the manner named, namely, ■signed!''in the company’s name by its secretary.

There is no evidence in the case that the company, in terms, ever repudiated the making of the written contract. The testimony of the witness, Bice, while in form denying his authority to make a contract of this description, shows that he was, at the time of signing the paper in the company’s name, authorized to fix the rates for the price of coal which should be sold and delivered to the defendants, and that this particular instrument was made in pursuance of the request of Dennison who, as Bice testified, was the general agent of the plaintiff for the sale of coal in Western Hew York.

The contract, therefore, which was offered in evidence and rejected by the court, appears to have been executed in the general line of the plaintiff’s business and under the direction of its accredited managers, and that consequently the claim set up at the-trial in behalf of the plaintiff, that Eice was not authorized to make the contract, was untenable, especially as it is shown by the defendants’ testimony that the plaintiff had partially executed the contract by delivering a portion of the coal after its execution. The case, therefore, as presented by the appeal papers, is one where, from the evidence, the jury would have been justified in holding that the company had ratified the contract made by its secretary by delivering a portion of the coal, and that, consequently, even by the terms of the by-law which was put in evidence, the plaintiff’s objection to the introduction of the instrument in evidence was untenable.

Unless, therefore, upon a new trial a different state of facts is presented, the defendants will be entitled to the introduction of-this instrument in evidence, to lay the foundation for their affirmative defense, namely, a breach of the written contract.

The defendants’ motion for a new trial should be granted. Yerdict set aside, and the defendants’ motion for a new trial granted, with costs to abide the event Dwight, P. J., and Lewis, J., concur.


text:
    Harry Evarts, by Guardian, Resp’t, v. The United States Mutual Accident Association of the City of New York, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    1. Benefit societies—Assessments.
    In an action upon a policy of insurance upon the assessment plan, it appeared that the defendant had moneys of the insured in its hands sufficient to pay the required assessments unless an assessment of two dollars was valid against the insured.. It appeared that this assessment was made before he became a member. Held, that it was not a claim against the insured and that the defendant was bound to apply the moneys of the insured in its hands to the payment of an assessment levied.
    2. Same—Proofs of death.
    After a company has received notice of death and has declined to furnish the usual blanks for such proof, upon the ground that the policy had lapsed, it cannot make the defense that proofs under oath, required by its rules, were not furnished in time.
    3. Pleading—Amendment of complaint on motion for new trial.
    It seems that upon a motion for a new trial made upon a case;/and exceptions, the court may allow an amendment to the complaint conforming the pleadings to the proof, where the amendment does not mislead the defendant.
    Appeal by the defendant from a judgment entered on the verdict of a jury at the Brie circuit April 15, 1891, and also from an order of the special term entered April 10, 1891, denying the defendant’s motion for anew trial upon a case, and exceptions, the notice of appeal bringing up for review that part of the order which permitted an amendment of the plaintiff’s complaint.

      Peet, Smith & Murray, for app’lt; George M. Osgoodby, for resp’t.
   Macomber, J.

The defendant belongs to that class of insur.anee companies which carry on a business of insurance against accidents on a mutual plan, and where the funds to meet losses and general expenses are derived from an assessment made upon the members from time to time.

The plaintiff’s father, Harry Bvarts, received a policy of the company August 9, 1888, under proper application, the contract being, in part, that in case of the death of the assured by accident, the defendant should pay to his son, the plaintiff, Harry Bvarts, the sum of $5,000. At the time the insurance was •effected, the assured paid to the defendant the sum of five dollars and a like sum on September 6, 1888, September 13, 1888, .and December 13, 1888, making twenty dollars in all, the last three payments being advance deposits to the defendant to apply upon future assessments under arrangements provided by a general rule of the company to deposit accounts, by which the association agreed to apply upon such assessments as might be made the several small sums so deposited with the company.

The assured was killed outright in a railway accident at Hamilton, Ontario, on April 28, 1889. A letter bearing date May 4, 1889, was written to and received by the defendant, notifying it •of the assured’s death. An acknowledgment thereof was made by the officers of the defendant May 8, 1889, by which the receipt •of the letter informing the company of the death of Harry Bvarts was admitted, and also admitting that an application was made to the company in the same letter for blanks for formal proofs of death. The letter then proceeded as follows: “ In reply I have to say that we cannot comply with your request, for the reason that at the time of his demise Mr. Bvarts was not insured in this company. His insurance having lapsed on April 3, by the non-payment of an assessment expiring on that day.”

It was conceded at the trial by the defendant that the deceased came to his death by accidental means within the intent and meaning of the policy, and that the defendant had, at all times, sufficient moneys to pay the loss, if it should be found to be a claim against the company. The answer, after admitting the issuing of the policy and putting certain allegations of the complaint in issue not necessary to be mentioned, set up as an affirmative defense, and as a forfeiture of the rights of the plaintiff under ■the policy, an allegation to the effect that the deceased failed to pay an assessment ordered, and payable on the 11th day of February, 1889. It further alleges that the certificate or policy so issued by the defendant contained the following condition and provision, to wit: “Immediate notice of any accidental injury or death for which claim may be made under this certificate shall be given in writing, addressed to the secretary of the association at Hew York, stating the full name, occupation and address of the member, with full particulars of the accident and injury; a failure to give such immediate notice shall invalidate all claims under this insurance, and unless affirmative and positive proof of the death or injury and duration of the disability, and that the same ^resulted from bodily injuries covered by this association, shall be nrnished to the association within six months of the happening of such accident, in case of the injuries resulting fatally, then all claims based thereon shall be forfeited to the association, and that; the said plaintiff and beneficiary of said Harry Evarts failed to-comply with said condition.”

There appears, therefore, to be two affirmative defenses set forth in the answer. The one relating to the failure of the assured to-pay an assessment of two dollars which matured on the 11th day of February, 1889, is shown to be entirely erroneous, and on the trial, with a liberality quite unusual in pleadings setting up forfeitures and claims for penalties, the learned court permitted an amendment of the answer by which the time of such forfeiture-should be changed from the 11th day of February, 1889, to the; 3d day of April, 1889.

By a notice dated August 9, 1888, (the date of the policy) the defendant informed the insured that at a regular monthly meeting of the board of directors, but at what monthly meeting it was not. stated, an assessment of two dollars upon each member, for conducting the business of the association, was ordered to be made-upon all members in Division “A," to which the deceased belonged, and that such assessment must be paid prior to September 8, 1888.

As we -understand the case, the payment of five dollars at the-time of the issuing of the policy was a part of the contract by which the policy was procured. There were, therefore, three payments of five dollars each, applicable to future assessments. If the assessment of which notice was given August 9, 1888, was-not legal, and the assured consequently not liable for the two dollars therein mentioned, the company had, at the time of the-making of the subsequent assessments, sufficient moneys on deposit in its hands for that purpose, belonging to the assured, to meet such assessment; while, if such payment demanded August. 9, 1888, was lawful and correct, sufficient- moneys would not be in the hands of the company for such purposes. Where, from any portion of the agreement or of the rules and regulations of the company to which the assured subscribed, either in fact or by necessary implication, the right to make the assessment contained, in the notice of August 9, and apply it to prior expenses, exists, „ is not ascertainable from the printed record before us. William. Bro. Smith, who had been a director of the company for ten. years, and its general counsel, testified that though the assured did not become a member until the 8th or 9 th of September, 1888, the first assessment against him, of which he was notified September 9, 1888, was actually made before September 6th, of that, year. This sum may have been exacted under a resolution passed April 30, 1888, whereby applications accepted on and after July 15, 1888, should be assessed to expire thirty days from the date of the policy. Nothing, however, can be claimed by the-defendant from this resolution, for Mr. Smith likewise testified that the assessment under that resolution expired September 6, 1888. But whether the deceased paid in pursuance of the resolution of Api’il 30th or not, there came into the defendant’s hands-at this time the sum of five dollars, applicable only to' assessments-made after his membership was effected; and such being the fact the assured is not shown to have been in default in any view which may be taken of the case.

Under the evidence the inference is strong that the assured, when he received the notice, believed that the same was in pursuance of the proper and necessary action of the board, taken after he had become a member of the corporation. If he was deceived in this respect, the company can claim nothing by way of forfeiture of his policy by reason of his voluntary payment of an illegal demand contained in the notice. With the moneys so-unlawfully taken from the assured, the defendant had.it in its power, and it was its duty to discharge any assessment which had. been lawfully made against the assured. Uo defense of forfeiture for nonpayment was available to the defendant while it held, these moneys, and while the assessments lawfully made had not exceeded the amount of money in their hands belonging to the assured. The assured had not contracted to pay for any assessment for losses prior to his membership in the company. Knight v. Supreme Council of Chosen Friends, 24 N. Y. State Rep., 847. For this reason the principal contention made by the learned, counsel for the defendant cannot be upheld.

In respect to the second defense above mentioned, we should be of the opinion that the answer is insufficient to raise the question argued relating to the furnishing of proofs of death, were it necessary to do so to uphold the judgment; for it fails to specify which of the eight or more conditions named in the contract the-plaintiff failed to comply with. Whether such failure related to the omission to serve (1) immediate notice of death, or whether such notice was (2) not in writing, or (8) whether it was not addressed to the secretary of the association at Mew York, or (4) whether the full name of the deceased was not given, or (5). whether his occupation and address were not given, or (6) whether the full particulars of the accident were not given, or (7), whether' the proof was not affirmative and positive of the death, or (8), whether the same was not furnished within six months after the accident, the answer fails to state. It is alleged in tile answer above quoted that the plaintiff failed to comply with the condition which was set forth in the answer, while it is seen that there are numerous conditions upon which the defendant might attempt, to rely, no one of which is specified. In this respect the answer1 is insufficient.

But under the letter acknowledging the receipt of the notification of the death of the assured, and refusing to furnish blanks for giving the formal, positive proofs under oath, no such defense is, under the well established authorities, available to the defendant. There is no condition in the policy saying what kind of proof shall be furnished, and under a refusal to forward blanks for such purposes, and under the letter which acknowledges the intelligence, of the death of the assured without disputing the fact, the defendant must be deemed to be satisfied with such evidence as was in fact furnished, although it was not rendered under oath.

It is further contended by the learned counsel for the appellant that it was error for the court on the motion for a new trial made upon a case and exceptions, to allow an amendment to the complaint by which the failure to give formal proofs of death was excused. But under the view already expressed such amendment to the complaint was not necessary, for it was competent for the defendant to regard as sufficient and satisfactory the letter above mentioned containing the announcement of the death of the accused. Yet we know of no reason, if the court thought the amendment should be made, why the same could not be made as well upon a motion for a new trial, so as to conform the pleadings to the proofs, as upon the trial itself, where it is quite clear that the defendant was not misled by such amendment Code Civ. Pro., §§ 539 and 2944.

The judgment and order appealed from should be affirmed.

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


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    In the Matter of the Final Accounting of Edgar D. Mather, Assignee.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    1. Assignment fob cbeditobs—Judgment confessed by assignob.
    An assignee for benefit of creditors had knowledge before the assignment that his assignor had confessed a judgment in favor of relatives, and he was notified by the creditors that he would be held liable if he allowed it to be paid out of the estate. The creditors did not request him to bring an action in this behalf or furnish funds therefor. The assignee was a layman, had counsel and had otherwise faithfully performed his trust. Held, that it was error to charge the assignee with the amount of said judgment for his mere failure to sue.
    2. Same—Negligence of assignee.
    It is the negligent omission of duty which alone can charge an assignee personally.
    3. Same—Objections to his account.
    Objections to an account of an assignee must be specific and must suffi* ciently apprise him of the charge which he is to meet.
    Appeal from a decree of the county court of Ontario county made September 15, 1890, on the final accounting of the appellant, as assignee, under a general assignment made by Lincoln A. Mink for the benefit of creditors.

      H. M. Field, for the assignee, app'lt; Mark T. Powell and John Colmey, for the creditors, resp’ts.
   Macomber, J.

This case was brought into this court by an .appeal from the decree of the county court, by which the assignee under a general assignment made for the benefit of creditors is •charged with the sum of $1,183, for failure to take legal proceedings to set aside judgments confessed by the assignor to his wife and mother before the making of the assignment.

The assignment was made on the 4th day of December, 1888. The assignor was engaged in the sale of agricultural implements and produce, and the assignee was a banker. On the day preceding the assignment, to the knowledge of the assignee, the assignor confessed two judgments, one in favor of his wife for $101 damages, besides costs; another in favor of his mother for $1,275.30 damages, besides costs. When such judgments were confessed, as is found by the learned county judge, it was arranged between the assignor and assignee that the assignment should be executed by them on the following day, namely, the day of its date. The property of the assignor was seized by the sheriff under executions issued upon these judgments, but by an arrangement between the sheriff and the assignee the latter was permitted to retain possession of the personal property as the agent of the sheriff, and he was to convert the same into cash, and to apply the same upon the execution held by the sheriff, which was accordingly done, the assignee making satisfactory sales of the property, and realizing therefrom as much money as could be obtained under any forced sale. The appellant also had some personal interest in one of these judgments by way of an assignment as collateral security for the payment of a note held by him; but it is not believed that such fact is of very much importance on this appeal, though considerations of delicacy arising therefrom might well have deterred him from accepting the trust under the assignment.

On the 24th day of April, 1889, the assignee was personally notified by certain of the creditors that these judgments so confessed by the assignor were fraudulent and void, and that these creditors would charge the assignee personally on his accounting with all sums paid by him on such judgments. There appears, however, to have been no request made by them to the assignee to bring an action to set aside such confessions, and to apply the property in the administration of his trust.

In the decision of the county judge, there is no finding that the assignee was guilty of any fraud or negligence in failing to prosecute an action in behalf of the general creditors under the assignment for the purpose above stated, except as the same is contained in his last finding of fact, where it is stated “ the sum of $1,183 is the amount of a trust fund so lost to the creditors of said trust estate by reason of the negligence and misconduct of said assignee.” That this was not, and that it was not intended by the learned judge to be, an affirmative finding of neglect, as a fact, so as to charge the assignee personally with the loss of these funds to the creditors, is seen by an examination of other findings made by the learned judge. Upon the request of the appellant’s counsel this special finding was made: “4. That the assignee used diligence in converting the property into money and no loss came to the estate by reason of any act of the assignee by converting the same into money.” He says further in the special findings as follows: “ Finally, I have found and decided that the exceptions of the creditors should be sustained upon the sole ground that the assignee had failed to bring an action to have the judgment confessed in favor of Mrs. Lucy Mink vacated and set aside as fraudulent and illegal,- and my reasons therefor are more fully stated in my opinion.”

The case, therefore, is one unlike that presenting the questions discussed in Matter of Cornell, 110 N. Y., 351; 18 N. Y. State Rep., 200. The mere failure of an assignee to bring an action to set aside the confessed judgments is not sufficient to charge him personally with the sum of money that might have been reclaimed by the successful prosecution of such an action. It is the negligent omission of duty which alone could charge the appellant. Many reasons might exist which would excuse the assignee from bringing an action even where it was thought that the right of action was good. Whatever judicial procedings might be instituted by the assignee would be so instituted for the benefit of ereditois, and not for the benefit of the assignee in any respect. The case, as presented, is one where the creditors have failed to induce any action by the assignee by'voluntarily assuming the expense of such litigation, or by indemnifying the assignee against personal expenses.

But it is claimed in behalf of the respondents, that because the assignee had knowledge of the fact that such judgments had been confessed, and that they were so confessed the day before making the assignment, he is conclusively charged with the duty of acting upon his own knowledge and of bringing an action based thereon. Whatever knowledge the assignee personally possessed of the facts as stated above and whatever inferences may now, in the light of subsequent events, be drawn in respect to the intent with which such judgments were confessed, it must be borne in mind that every step in procuring such judgments was taken under the advice of experienced counsel, who advised all the parties that they were valid. It appears, therefore, that the knowledge which the assignee is said to have possessed was not of such a character as would lead him, as a layman, to the conclusion that he could successfully assail these judgments, and that, consequently he cannot (be charged with culpable neglect in not attempting to set them aside.

Moreover, the objections made to the appellant’s account did not sufficiently apprise him of the ground now relied upon by counsel. The objections were originally placed under four heads. The first and second of these were struck out by the county judge on motion. There remained therefore only the third and fourth objections, which are as follows: Third objection. “ To the items in said account, to wit, the goods in store sold on execution after the assignment but levied prior to'same, and that ■said assignee should be charged with all moneys paid out by him under and by virtue of said executions, and that he shall not be credited therewith; that such shall be decreed as being in his hands for distribution.” Fourth : “ Object to so much of said account as credits said assignee with the payment of all moneys paid upon or property taken upon and under two judgments against said Mink in favor of Lucy Mink and Libbie Mink.”

These objections contain no charge of culpable neglect or of any degree of neglect of duty in failing to bring an action to set aside the judgments. The judgments were valid as between the parties, and also as to all persons other than the creditors of the assignor. They were regular and sufficient in substance and in form. They were not, consequently, void, but voidable, and that only upon the interposition of the creditors, or the assignee acting in their behalf, under evidence, which never seems to have been placed in the assignee's hands, that they were made with intent to defeat the general assignment act of 1877 (chap. 466) or fraudulent as to such creditors. Under these circumstances it was the duty of the assignee to execute the trust imposed upon him by his acceptance thereof, for the assignment must be treated as valid until declared fraudulent by the judgment of a competent court. Knower v. C. N. Bank, 124 N. Y., 552; 37 N. Y. State Rep., 89.

Upon the hearing of this matter the assignee had the right to be apprised of any charge that might be made against him of this grave nature. The objections as filed must be deemed in substance to have the force and effect of an answer in an action, and, consequently, it was the duty of the contestants thereby to charge the assignee in a proper manner with the negligence now urged against him before calling upon him to respond in the manner stated.

It follows, from these considerations, that the decree appealed from should be reversed in respect to the charge against the assignee of items amounting in all to $1,183, and. a re-hearing had, with costs of this appeal to abide the event

Decree reversed, and a re-hearing ordered.

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


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    Walter S. Yates, Resp’t, v. William H. Appleton et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    1, Contract—Book canvassers—Presumption op solvency op subscribers.
    A .book canvasser agreed with a firm to sell its publications to “ none but bona fide subscribers,” and to take “ reliable orders ” for the works, and “ proof of the reliability of said orders shall be the readiness of the subscribers to receive the books and pay for them according to their respective orders.” In an action for the canvasser’s commissions, Held, that he need not, as a part of his case, prove that the persons to whom he sold were responsible; that in the absence of proof the court would presume that they were so.
    2. Same—Burden op froop.
    If the defendants had shown that their failure to deliver books was because they did not regard the subscribers as responsible, the burden might have been cast upon the plaintiff of showing such responsibility.
    Appeal from a judgment entered in Erie county clerk’s office, December 24, 1890, on the report of a referee.

      George F. Yeoman, for app’lts; Ansley Wilcox, for resp’t.
   Macomber, J.

The facts as found by the learned referee in his report, and which are clearly sustained by the evidence, are as follows: Between the 25th day of June, 1887, and the 1st day of October, 1887, the plaintiff was employed by the defendants, under a special contract in writing, to canvass and sell books and publications of the defendants in the states of Indiana, Ohio and Michigan, for which he should receive certain graduated compensations. The plaintiff performed his part of the agreement,, and, under the contract, his commissions came to the sum of $835.30, upon which he was paid the sum of $550 by the defendants. Other items, of increased compensation, growing out of verbal modifications of the written agreement, one of $39.20 and the other $25.20, do not seem to be disputed. With these added, the whole amount of unpaid compensation to the plaintiff is, and is so found by the referee to be, $399.70, for which judgment lias been given, with interest from July 9, 1889.

By reference to the written agreement it is found that the plaintiff was engaged to sell the publications of the defendant to none but Iona fide subscribers within the territory assigned, and to do all in his power to advance the interests of the defendants. He also engaged to take reliable orders for the works, “proof of the reliability of said orders shall be the readiness of the subscribers to receive the books and pay for them according to their respective orders.” The defendants engaged on their part as follows : “All orders for the above named publications, taken in accordance with the provisions of this agreement, will be served and all collections will be made through O. J. Rowe, superintendent of ag-encies for Ohio, Michigan and Indiana.”

The defense, which is that portions of the orders taken and returned by the plaintiff are uncollectible and the subscriptions thereto are not made bona fide, is wholly unsupported by any evidence in the case. An inspection of the whole testimony, which is confined to that of the plaintiff himself and the defendants’ agent, Carmichael, shows that the conclusions arrived at by the learned referee in his report, notwithstanding the criticism of his opinion made by the learned counsel for the appellant, are well sustained.

Under f-this agreement if the subscriptions obtained by the plaintiff were bona fide, and made by apparently responsible persons, as we must presume them to have been in the absence of testimony to the contrary, the plaintiff was entitled to recover the commissions for such subscriptions, even though the defendants failed .to deliver the books in pursuance of such subscriptions. The plaintiff did not engage to show as a condition precedent to the right of payment for his services, that each of the subscribers whom he had obtained was responsible for the amount of his subscription, notwithstanding the provision of the agreement, which reads as follows: “ Proof of the reliability of said orders shall be the readiness of the subscribers to receive the books and pay for them according to their respective orders.” It is argued, as we understand the brief of the appellant, that from this and other provisions of the contract the subscriptions cannot be deemed to be reliable subscriptions within its terms unless the subscriber has paid for the book; and that it is incumbent upon the plaintiff to show that the defendants actually received pay for the book, or that it was the fault of the defendants that they did not so receive it. In this conclusion we cannot concur with the learned counsel-Had the defendants shown by evidence that their omission to fill the orders was because they did not regard the subscribers responsible, the burden of establishing such responsibility might, under this clause of the contract, well be deemed cast on the plaintiff; but such reason for their action is not shown, and hence the plaintiff was not driven to the necessity of showing affirmatively, beyond presumptions, that each subscriber was able and willing to pay the amount of his subscription.

The referee seems to have carefully considered the whole evidence and the presumptions arising from the absence of evidence in the case, and has reached a conclusion entirely consonant with such facts as the parties saw fit to lay before him.

Judgment appealed from should be affirmed.

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