author: VAN BRUNT, P. J. O’BRIEN, J.,

text:
    Alfred Shrimpton & Sons, Limited, v. Simon Eschwege.
    (Supreme Court, Appellate Division, First Department.
    Nov. 13, 1896.)
    Contracts—Fraud in procurement—Estoppel to claim.
    Plaintiff’s agent procured from defendant an order for one great; gross of pins, with advertisement to be printed on each paper. Plaintiff wrote to defendant, acknowledging order for “ one great gross of pins,” and inclosed a copy of the proposed advertisement, with request to “ check carefully, ' * * * making any desired changes.” Defendant replied that everything was correct. Held, that defendant was. estopped to claim that the order was procured by fraud, under the belief that it was for one gross. O’Brien and Patterson, JJ., dissenting..
    Appeal from trial term, New York County.
    Action, by Alfred Shrimpton & Sons, Limited, against Simon. Eschwege, for the proceeds of goods sold. = A judgment in favor of plaintiffs was entered on a verdict directed by the court,, and defendant appeals.
    Edward W. S. Johnston, for appellant; George C. Coffin,, for respondents.
   VAN BRUNT, P. J.

—This action was brought to recover for goods, wares, and merchandise, consisting of “ one great gross of pins,” with advertisements attached. The defendant,, for answer, denied the sale and delivery of the goods, ancl alleged that the order for one great gross of pins was obtained. by the agent of the plaintiff through fraud or fraudulent concealment and misrepresentation. The question involved in the-trial of the case was as to whether the defendant had ordered one gross of pins, or one great gross of pins. It appears that-an order for one great gross of pins was signed by the defendant, and given to the agent of the plaintiffs, on or about the 14th of February, 1893; that he turned in the order to the-plaintiffs, who, upon the 17th of February, mailed to the defendant a letter in which they acknowledged the receipt of his order given to their salesman for one great gross of pins, to be put up in the manner described in said letter as soon as they could' prepare the goods, with the defendant’s name and special advertising matter printed thereon, and then follows-the printed matter which was to go on the papers in wLich the> pins were to be put up. The letter concludes : “ Please check this all over carefully, making any changes or corrections you desire, and, if O. K., please sign and return to us by first mail in the inclosed stamped envelppe, and we will proceed with the order.” At the bottom of this letter the defendant signed the following statement: “We have checked this all over carefully, and find it to be correct in every particular. Dated February 23, 1893.” This was mailed to the plaintiffs, who thereupon proceeded to complete the goods necessary for the order, and shipped the same after they had been prepared for delivery, to the defendant, who refused to receive the same. The evidence upon the part of the agent of the plaintiffs was that there Was a conversation between himself and the defendant as to whether one gross of pins or one great gross should be ordered. The defendant objected at first to one great gross, but, when he was told that the plaintiffs would not print his advertising matter upon a smaller order, he finally consented, and gave the order for one great gross. The defendant insisted that the conversation was as to one gross or half a gross; that he only wanted to order half a gross; and that, upon being told that they would not fill an order except for a gross, he presumed he was signing an order for a gross. A saleswoman of the defendant, of the name of Hattie Goose, corroborated him to a slight extent. She did not hear the' whole of the conversation, but testified that there was a conversation between the defendant and the plaintiffs’ salesman as to one gross or half a gross. She did not see the order signed or witness the circumstances under which it was done.

Upon the conclusion of the evidence, the court directed a. verdict for the plaintiffs, and in this, I think, there was no error. It appears from the evidence that, after receipt of the order by the plaintiffs, they sent to the defendant a statement of what the order was, before they proceeded to complete the manufacture of the goods, which goods were to be put up in a special way, which could be used for no person except the defendant. The defendant replied that the order was correct in every particular, and they thereupon went on and manufactured the goods. It seems to me that it is too late now for the defendant to say that he did not read the order. Before he approved of it, and stated it to be correct in every particular, he was bound to read it; and, if he did not, the plaintiffs cannot be called upon to sustain the loss occasioned by his negligence. Where the defendant represents that he has seen, and the party acts, upon the faith of his having seen, he cannot be heard afterwards to say, “Although I said I saw I did not.” It would certainly put a stop to all business transactions if, after the delivery of the ratification over one’s own signature, of an order to which his attention is especially directed, a seller could not rely upon the representations of a purchaser that the order was correct in every particular.

The judgment should be affirmed, with costs.

INGRAHAM, J., concurs. WILLIAMS, J., concurs in result.

O’BRIEN, J.,

(dissenting).—-This action" was brought to recover "the agreed price of one “ great gross paper of pins,” alleged to have been sold and delivered to the defendant. The evidence shows that the defendant signed an order for the pins, which was on a printed form, and all of it, with the exception of the name or the agent and the date and the word “ one” before the words “ great gross,” and the advertisement of the defendant, was in print. The president of the company, on receiving the order from the agent, wrote to the defendant, stating its receipt, sending him a copy of the defendant’s advertisement to be printed on the goods, and requested him'to check it off, make any changes or corrections he desired, and, if O. K., to sign and return. This the defendant signed, over a statement that he had checked it all off carefully, and found it to be correct in every particular. L The defense was that the defendant had been, fraudulently induced to sign the order, his testimony showing that the agent offered him' pins, and urged him to purchase a gross, and not a great gross, which was 12 times as much, which latter is the amount the plaintiff claims to have sold. The defendant testified that he told the agent he could not use even a gross, and wanted a half gross, but that, the agent insisting that a gross was the smallest quantity that could be ordered, he finally agreed to purchase one gross, and that nothing was said during the entire conversation about one great gross of pins; that the agent placed the order before him, and pointed to the reading matter, but he did not read the paper through, but wrote his name and address; and that the agent wrote the word one ” before the printed words great gross ” on the order. A saleswoman in the defendant’s employ claimed to have overheard the conversation, and testified that it related to a gross of pins, and not a great gross. Upon the cross-examination of the president of the plaintiff, and by other witnesses, it was made to appear that similar mistakes had occurred between the plaintiff and other customers, which had been the subject of several lawsuits.

At the close of the case, the learned trial judge directed a verdict for the plaintiff, it appearing that the paper was signed by an intelligent man, who could read and write, without any inducement on the part of the plaintiff, or its salesman, or any representation that was misleading; that fraud could not be predicated upon a transaction like that disclosed by the evidence; that, after the order was given, the defendant ratified the transaction by answering the communication sent to him by plaintiffs’ president, which contained a copy of the order for one great gross, and by signing the statement, “ I have checked this all over carefully, and find it to be correct in every particular ”; and that it was only after that that the plaintiff went ahead and filled the order and shipped the goods. Commenting on these facts, the learned trial judge said:

“ Under these circumstances, it seems to me that there is no room for inferring that there was any overreaching of the defendant, or any attempt to deceive him in any respect. On the contrary, there was an effort to notify him expressly of what he had agieed to, and it was for him, then, in the exercise of ordinary prudence, to have protected himself if he had been misunderstood, and have prevented the plaintiff from going on to fill the order, the plaintiff having received the order through one of their salesmen, and taking the precaution to repeat it back to the defendant. There were no misrepresentations .to induce him to acknowledge the correctness of the order as stated in the second writing.”

The appellant contends that this direction was wrong, and that, upon the evidence, it was a question for the jury as to-whether or not the defendant was overreached. There can be no question that the plaintiff’s case was very strongly intrenched by the second paper which the defendant signed and returned to the plaintiff. W ere it not for this, it would have been clearly a question for the jury; and the point remaining for our consideration is: Did the signing of the second paper make the evidence so preponderating in plaintiff’s favor that it was proper to direct a verdict ? Or put it in another form: Had the question been submitted to the jury, had they decided in defendant’s favor, would the verdict have been set aside as against the weight of evidence ?

This question was considered in the Michigan courts in an action brought by this plaintiff against one Rosenbaum (63 N. W. 1011). There, as here, the defendant received from the plaintiff a letter acknowledging receipt of the order for three great gross, and with proof of the defendant’s advertisement, and asking the defendant to check it all off, and, if O. K., to sign and return the letter. The defendant placed his O. K. after the advertisement, signed the letter, and returned it. The defendant testified that he intended that his order should be only for three gross, and that, in signing the letter, he paid no attention to the quantity stated therein, as he thought his approval only to the advertisement was asked. The court says:

“It is urged that this case is distinguishable from the Kctzorg Case [62 H. W. 343], in that here a confirmatory order was given. It was entirely proper to make the explanation of the circumstances under which this order was obtained. Both, papers related to the same transaction. If the order was-obtained through fraud, the defendant would be bound to repudiate it when discovered, and not before. The transaction was tainted by the fraud in the procurement of the original order, and the procurement of the confirmatory letter did not. purge the transaction of the fraud. The testimony tending to. show a similar transaction with others was admissible as bearing upon the question of intent.”

As will be seen, upon evidence like that adduced in this case, the defendant obtained a judgment, which was affirmed upon appeal. We agree with the reasoning in that case. The confirmatory letter was part of the same transaction. If, by fraudulent means, the defendant was induced to enter into the contract, the fact that he was afforded means of discovering the fraud, and did not discover it, cannot take away his right to rescind when he did discover it. The most that can be predicated of his failure to note that the confirmatory letter spoke of a “ great gross ” is that it was a careless and negligent way of conducting business; and this would be a circumstance for the consideration of the jury, militating against the probability of the defense. Still, if the original transaction was tainted with fraud, and the confirmatory letter was but a step in the transaction, there is nothing, barring an estoppel, which should legally prevent a person, even though negligent and careless, from invoking the rule that he is protected against fraudulent acts upon the part of the person with whom he is dealing. We do not mean to infer that the testimony upon the question of fraud is either conclusive or satisfactory, our province being merely to determine whether there was sufficient evidence to go to the jury upon the question.

That there was no estoppel, we think, is clear. An estoppel could only be based upon the fact that the-company, after the confirmatory letter, went on and manufactured, relying on the acts of the defendant. It has been held, however, that, “ in order to create an estoppel in pais, it must appear that the party asserting the estoppel has been induced by the acts or declarations of the party sought to be estopped, to believe the existence of the facts to which the estoppel relates, and that he has in good faith acted upon such belief.” Lawrence v. Brown, 5 N. Y. 394. See, also, Bridger v. Goldsmith, 143 N. Y. 424; 62 S. R. 435. “ The doctrine of estoppel in pais is founded upon equitable principles, and is applied to prevent fraud and injustice. It would be a very singular and extraordinary application of the doctrine to apply it for the purpose of preventing a party from alleging an innocent mistake. I cannot find that a party has ever been estopped by a mistake.” Lawrence v. Bank, 54 N. Y. 436. “ The doctrine of estoppel is applied to promote justice and fair dealing, never to aid a fraudulent purpose.” Royce v. Watrous, 73 N. Y. 597. If the defendant’s story is to be credited, that he was induced by the fraudulent conduct of the plaintiff’s agent to sign the contract, the confirmatory letter, as said, being part of the same transaction, does not present features which would prevent the defendant from alleging the fraud, and proving it if he could.

We think, therefore, that the direction of a verdict was erroneous, and that the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

PATTERSON, J., concurs.


source: Caselaw Access Project

author: INGRAHAM, J.

license: Public Domain

text:
    George H. Raymond v. Bridget Hogan et al.

    (Supreme Court, Appellate Division, First Department.
    Nov. 13, 1896.)
    Counterclaim—Allowance against assignor.
    A counterclaim for damages arising from defects in a heating' apparatus sold to defendant cannot be allowed against the assignee of a mortgage given by defendant for the price, where the contract of sale provided that the seller would, within a reasonable time after notice of any defect in the apparatus, remedy it at his own cost, but no notice of any defects had been given at the time of the assignment; Code Civ. Proc. § 502, subd. 1, providing that, in an action on an assigned claim, the demands in favor of defendant against the assignor which are allowable as a counterclaim are such as might have been allowed against the assignor while the claim belonged to him.
    Appeal from0 special term, New York Oounty.
    Action by George H. Raymond against Bridget Hogan and another to foreclose a mortgage. There was a judgment in favor of plaintiff, and defendants appeal.
    Edmund Luis Mooney, for appellants ; Frederick Seymour, for respondent.
   INGRAHAM, J.

—The action was brought to foreclose a mortgage to secure the payment of a bond executed on the 31st day of May, 1893, the Foskett & Bishop Company, a corporation organized under the laws of the state of Connecticut, being the mortgagee. On the 12th day of June, 1893, the' corporation (the mortgagee) assigned the bond and mortgage to this plaintiff, who thereupon became, and continued to be down to the trial of the action, the owner and holder thereof. The defendants, in their answer, admit the making of the bond and mortgage, but set up, for a further and separate defense, and as and for a counterclaim, the fact that the mortgage was given to the said corporation in payment of the contract price of a hot-water heating apparatus." The defendants alleged that by an agreement between the firm of Foskett & Bishop and the defendant Patrick Hogan, the said Foskett & Bishop agreed to furnish and erect in certain buildings situated on the southwesterly corner of 142d street and Seventh avenue, in the city of New York, the said hot-water heating apparatus; that by the said agreement the said Foskett & Bishop guarantied that the said apparatus should heat the said premises satisfactorily wherever, in said premises, radiators were placed, but that the said apparatus was and is imperfect, and has failed to heat said premises as guarantied ; that the said Foskett & Bishop, or the said Foskett & Bishop Company, promised and agreed to remedy the defects in said apparatus, and requested this defendant or her said husband to execute and deliver a bond and mortgage, as provided for in said contract; that thereupon the bond and mortgage mentioned in the complaint was executed and delivered to the said Foskett & Bishop, or the said Foskett & Bishop Company, in consideration of said agreement for the furnishing of said hot-water heating apparatus and said guaranty, and for no other-consideration whatsoever; that the said guaranty was, before the commencement of this action, broken and violated, and these defendants have sustained damage in the sum of $3,000. And the defendants demanded judgment that the complaint be dismissed, and that they recover $3,000 from the plaintiff.

The original contract was made, between these defendants, Patrick Hogan, and Foskett & Bishop, the defendant Bridget Hogan guarantying the contract. Subsequently the bond and mortgage in question was executed by the defendants to the Foskett & Bishop Company, a corporation organized under the laws of the state of Connecticut. It appeared that, between the making of the contract and the execution of the mortgage to the corporation, the firm of Foskett & Bishop assigned and transferred to the said corporation the stock in trade, fixtures, and all other property owned and used in the manufacture and sale of steam traps, etc., the business in which said firm was engaged, together with all book accounts and other debts due to said vendors by reason of their said business, and also the good will of said business; said corporation assuming and agreeing to pay all accounts due from and owing by said purchasers in their said business to all persons whatsoever, and this assignment being dated March 20th, 1893. Subsequent to this assignment to the corporation the defendants executed the bond and mortgage in question to the corporation. By the contract between the co-partnership of Foskett & Bishop and these defendants it was provided that':

“ When the apparatus herein proposed to be furnished is completed, in accordance with the conditions hereof, we guaranty that it shall be capable of warming all rooms mentioned in the schedule to the temperature mentioned therein, when the outside temperature is at zero, provided our printed instructions for the management of the heater are followed, and that good coal 'of suitable size is used, satisfactorily, where radiators go. If, after this apparatus shall have been accepted by you, any part thereof, constructed by us under this proposal, shall fail to accomplish the guaranty herein contained, by reason of any defect in the same, we agree to remedy such defect at our own costs, within a reasonable time after receiving written notice of such defect.”

In a copy of the proposals and specifications produced by the defendants, which appear to have been submitted to the defendants by Foskett & Bishop, but not signed by the defendants, after the words “ good coal of suitable size,” in the guaranty, appear the words “ heating satisfactorily where radiators go; ” the word “heating” being added to the words contained in the specifications to which the contract signed by the defendants had been annexed. The defendants testified-that, after the work had been completed, the corporation applied for the bond and mortgage, the consideration for the work done, in answer to which application the defendant said:

‘ Now, we haven’t had any chance to tty this. How will it be if it does not work satisfactorily \ ’ He said [meaning the plaintiff, who was the manager of the corporation]. You have had no trouble in 120th street, and it is not likely you will have any here; and, if you do, of course, we will attend to it.’ ”

That was in May, 1893, and subsequently to that conversation the bond and mortgage in question was executed and delivered to the corporation, and subsequently, and on the 12th day of June, 1893, assigned to the plaintiff. This conversation was denied by Mr. Raymond. He testified that nothing was .said about the apparatus not being satisfactory at the time of the execution of the mortgage; but, however that might be, neither of the defendants there made any objection to the sufficiency of the heating apparatus, no claim was there made that the ■contract had not been satisfactorily complied with by the corporation, and no notice that the apparatus was out of order was given by the defendants until the winter of 1893 and 1894.

In June, 1893, the mortgage in question was duly assigned and transferred to the plaintiff ; and on the 20th of July, 1894, an agreement was executed, between the defendant Bridget Hogan and the plaintiff, wherein the assignment by said corporation to the plaintiff of the said mortgage, and the ownership by the defendant Bridget Hogan of the premises covered by the mortgage, is recited. The said agreement provides for an extension of the time for the payment of the mortgage, upon condition that the defendant Bridget Hogan shall pay all arrears of interest upon the first mortgage and all taxes upon the property, and shall, upon the first day of each month, pay $50 on account of the principal; “ but if the party of thb first part shall not perform each and every of the conditions above specified, then the principal sum of said bond and mortgage shall forthwith become due and payable, without notice or demand.” Thus, before any notice had been given to the firm •of Foskett & Bishop, or to the corporation who had succeeded to that firm, that the said heating apparatus was not in all respects satisfactory, and a full compliance with the contract, this mortgage had been assigned to the plaintiff by the mortgagee, and for a valuable consideration the defendants had agreed to pay the mortgage to the plaintiff. At the time of the assignment to plaintiff, and this agreement between the defendants and the plaintiff, no counterclaim existed in favor of either of the defendants against either the plaintiff, Foskett & Bishop, or the corporation. The apparatus had been accepted, and by the contract, if, after its acceptance, it should fail to accomplish the result by reason of any, defect in the same, the firm of Foskett & Bishop agreed to remedy such defect within a reasonable time after receiving written notice of the defect. That was the guaranty, and it was that obligation,, if any, that the corporation assumed. No obligation existed on thg part of the firm of Foskett & Bishop, or the corporation, under this agreement of guarranty, until written notice of the defect had been given to the corporation; and then the contractors were bound to repair any defect, and, if it failed, Foskett & Bishop, or the corporation, would be liable for such demage as had been caused in consequence of its refusal to make such repairs or changes as would make the work conform to the contract. No such cause of action existed in favor of the defendants against the corporation when this mortgage was assigned to the plaintiff, and When the defendant agreed to pay to the plaintiff the amount due on the' mortgage there was no cause of action existing in favor of the defendants that could be pleaded in action to foreclose the bond and mortgage as an offset to the amount due to the plaintiff thereon.

By subdivision 1, § 502, of the Code of Civil Procedure, it is provided that:

If the action is founded upon a contract, which has been assigned by the party thereto, other than a negotiable promissory note. or bill of exchange, a demand existing against the party thereto, or an assignee of the contract, at the time of the assignment thereof, and belonging to the defendant in good faith, before notice of the assignmént, must be allowed as a counterclaim, to the amount of the plaintiff’s demand, if it might have been so allowed against the party, of the assignee, while the contract belonged to him.”

This alleged cause of action against Fosket & Bishop, or the corporation, not existing against such corporation or firm at the time of the assignment of the bond and mortgage, the contract upon which the action is founded cannot be allowed as a counterclaim to the amount of the plaintiff’s demand.'

The judgment below was, therefore, entirely right in dismissing the counterclaim, and it should be affirmed, with costs.

All concur.


author: BARRETT, J.

text:
    People ex rel. Charles J. Shields v. James T. Martin et al.

    (Supreme Court, Appellate Division, First Department.
    Nov. 13, 1796.)
    Police officer—Removal—Evidence.
    The removal of a policeman for “ becoming engaged in a fracas, and pointing a pistol at several persons,” is not warranted by testimony that witness had ‘ ‘ grabbed ” a pistol from the policeman during the excitement, to which facts, however, he refused to swear on cross-examination, where the policeman did not begin the fracas, and the pistol which he carried when on duty was at the time looked up in. the station-house.

      Certiorari by Charles J. Shields to review the determination of James J. Martin and others, constituting the board of police commissioners of the city of Mew York, dismissing relator from the position of patrolman.
    Louis J. Grant, for relator; Theodore Connoly and Terence Farley, for respondents.
   BARRETT, J.

—The charge against the relator was that he “ became engaged in a fracas in the lager beer saloon of Casper Iba, Mo. 255 Bowery, and, while so engaged, drew his pistol, and pointed it at several persons, in a threatening and very dangerous manner.” The respondents do not rely upon the first branch of the charge. Indeed, they could not well do so, as there was not a particle of evidence connecting the relator with any criminal feature of this fracas. On the contrary, the patrolman Croughan, who was called by the prosecution, testified that the person with whom this fracas is said to have occurred (one Henry Iba) admitted under oath in the police court that it was he (Iba) who raised the disturbance that started the row. It is a significant fact that this Henry Iba was not called as a witness before the respondents. Thus, the relator’s story with regard to the occurrence, corroborated, as it is, by numerous witnesses, was entirely uncontradicted. It was substantially the only version of the fracas which the respondents had before them. The case as to the use of the revolver, though not quite so barren of testimony, is exceedingly weak. There is, in fact, no substantial evidence that the relator had or used a revolver upon the occasion in question. A single witness, Casper Iba (and he came upon the scene when the fracas was on the wane), does testify that he “ grabbed ” a revolver out of the relator’s hands; but he did not adhere to this testimony. Upon cross-examination he said that he was not positive that lie took the revolver from Shield’s hands; that, at the time this revolver was “ flourishing,” there was great excitement, and a “ great number of hands were up in the air ” ; and that somehow he got the revolver in his hand. He was then asked this question, and gave the -answer which follows: “ Q. You could not swear positively it was from Officer Shields’ hand that you took the revolver ? A. “ Mo.” Further on he said “ thought it was Shields had the revolver.” “I think,” he added; “almost sure; I would not swear to it.” This is all the testimony there was in support of the charge. The relator, on the other hand, testified that he had no revolver at the time of the occurrence ; that his revolver was then looked up in a closet at the station-house; and that, when accused, he took out his keys, and offered them to the sergeant, requesting the latter to open the closet, and see for himself that the pistol was there. At the close of the case, the counsel for the prosecution conceded that the relator’s revolver was in the station-house. It also appeared that the revolver which Casper Iba seized and brought to the station-house was not the. kind of pistol which police officers, usually carry. There is a regulation revolver of the caliber 38. The pistol which was produced was of the caliber 32. Then, too, the relator was corroborated by the testimony of many witnesses. Thus, we have a case almost barren of testimony on the part of the prosecution, met with overwhelming evidence on the part of the "defense, and surrounded by circumstances which place the probabilities clearly on the relator’s side of the scale. While reaffirming all that was said in Lang’s Case, 5 App. Div. 217, 29 N. Y. Supp. 74, we cannot possibly sustain the present conviction. It is hopelessly unsupported by the evidence.

The judgment under review must therefore be annulled, with $50 costs and disbursements, and the relator reinstated.

All concur.


text:
    New York City Baptist Mission Soc. v. Tabernacle Baptist Church et al.

    (Supreme Court Appellate Division, First Department.
    Nov 20, 1896.)
    Judgments—Harmless Informality.
    Failure to number the folios of judgment, as required by Gen. Rules Prac. No. 19, is a mere irregularity ; and the judgment, after entry, is valid, under Code Civ. Proc. § 721, which provides that a judgment shall not be affected by any informality by which the adverse party has not been prejudiced.
    Appeal from special term, New York County.
    Action by the New York City Baptist Mission Society against the Tabernacle Baptist Church, impleaded, etc., to foreclose certain mortgages. From an order setting aside the entry of judgment, and directing that the judgment and decision of the court be removed from the file, and the entry and filing thereof canceled, plaintiff appeals.
    Edward S. Clinch, for appellant; Frank Harvey Field, for respondents.
   INGRAHAM, J.

—There is no question as to the power of the court to vacate any of its judgments upon a proper state of facts. The question before us is whether the order of the court below vacating the entry of this judgment was proper under the circumstances of this case. Rule 19 of the General Rules of Practice provides that every judgment exceeding two folios in length shall be distinctly numbered and marked at each folio in the margin thereof; and the entry of the judgment in this case by the special term was a violation of- this rule. This, however, was a mere irregularity; and the judgment, having been entered, was a valid judgment, until set ■aside or vacated by the court. Section 721 of the Code then applies. Under the provisions of that section, the judgment was not affected or impaired by reason of an informality in the entry of the judgment, or in making up the judgment roll, or for any fault or negligence of the clerk, or any other officer of the court, or of a party, his attorney or counsel, by which the adverse party had not been prejudiced. This valid, subsisting judgment should therefore be vacated or set aside by an order of the court only upon its appearing that there was a fraud or neglect on the part of some officer of the court, or of a party, his attorney or counsel, by which the adverse party had been prejudiced. It was necessary to show that the moving party had been in some way prejudiced by the failure of the officers of the court or the attorney for the adverse party to comply with some regulation which had rendered the judgment irregular. In that we think that the moving party has failed. No attempt is made to show that the failure to folio the judgment has in any way prejudiced the moving party. It is a mere irregularity, that in this case has harmed no one ; and it is clear that, save for the fact that the respondent allowed his time to appeal to expire, and, under the guise of this motion, has attempted to acquire a right to appeal after the time therefor has expired, in violation of the express provisions of the Code, no attempt would have been made to obtain the vacation of this judgment. It appeared, however, that the respondent had lost his right to appeal by failing to serve his notice of appeal in time; and that this is a serious prejudice, we assume. But this failure to appeal was not in any way caused by the irregularity complained of, and that irregularity did not in any way prejudice the respondent. Section 784 of the Code is explicit. Neither the court nor judge has authority to extend the time fixed by law within which an appeal can be taken; nor can a court or a judge allow either of those acts to be done after the expiration of the time fixed by law, except in a case specified in the next section, which does not apply to the case at bar. We have thus an application to the court to violate an express provision of law, and give to this respondent a right which he has lost by reason of his own neglect, and which section 721 of the Code expressly says we shall not give because of an irregularity which has not prejudiced him. We think, therefore, that to grant this motion would be an express violation of the provisions of the Code, and an exercise of a power unauthorized by law.

The order appealed from should therefore be reversed, with $10 costs and disbursements, and the motion below denied, with $10 costs.

All concur.


author: BROWN, P. J.

text:
    Francis A. Smith v. Third Ave. R. Co.
    (Supreme Court. Appellate Division. Second Department.
    Dec. 1, 1896.)
    Damages—When Excessive.
    A verdict for $10,000 for personal injuries is excessive where the-evidence showed that the plaintiff, a teacher in a public school, was. cut in the forehead and bruised on body and limbs, by which she was confined to her bed two weeks ; that she had not recovered at the trial from brain irritation and congestion developed at the time of her injury ; that she suffered more when making mental efforts, and that after school she was exhausted, and had to go home and lie down; that she slept but little day or night; that she was absent from work four months, but lost little in salary or money.
    Appeal from trial term, Kings County.
    Action by Frances A. Smith against the Third Avenue Bailroad Company for personal injuries. From a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.
    William N. Cohen, for appellant; John T. Little, Jr., for respondent.
   BROWN, P. J.

—The plaintiff recovered a verdict of $10,000' for injuries sustained through the negligence of the defendant while attempting to get upon one of the defendant’s cable cars on Third avenue, in the city of New York. As a result of the accident, the plaintiff ivas thrown down upon the car platform,, and received a severe cut in her forehead, and several bruises-upon her body and limbs. The cut upon her head was sewed up by a physician, and healed in due- course of time. The-plaintiff was confined to her bed for two weeks, when she got-up, and walked around. She testified that she was at that time unable to control her. limbs, and that her head swam,, and she had a great deal of pain there and in the back of her neck. Her physician testified that at the time of the trial she. had not recovered from the symptoms that developed at the; time of her injury; that her trouble was “ brain irritation,— congestion of the base of the brain, due to the shock and blow that she had received ” ; that when she made any mental effort the brain would become more congested, and induce symptoms, that rendered it impossible for her to use her brain, and that she would then have headache and nausea; that, if she rested and remained quiet, and had nothing to worry her, she was in fairly good condition, but just as soon as she tried to work, or use her brain, she would get dizzy, and have headache, and be unable to walk any distance without getting dizzy. The plaintiff was 54 years of age, a teacher in the public schools of New York, and had been such for nearly 26 years, and received for her services the sum of $1,750 per year, which was the maximum salary paid for such employment. She returned to her school about a month after the accident, for a few days,, and then was obliged to give up work, and remained away for four months. During that period she received pay for Saturdays and Sundays, days which it appears all teachers were paid for, according to . the custom of the school department. Plaintiff testified to receiving over $97 in December, the month in which the accident occurred, as much as $77 in January, $53 in February, and $43 in March. About April 1st she resumed her school duties, and was at work regularly after that until the time of the trial. There was testimony as to the existence of pain and suffering, which would naturally follow such an accident as befell the plaintiff. As to the permanent effect upon her system as it was developed at the time of the trial, she testified as follows:

“ The accident was December 7th. When I came back, four months afterward, I have not been able to do my work as I did it before. I cannot keep my mind on my work. My head gives out, and my eyes. That I never had before. When I get home, after making an effort to go through the school work, I am very much exhausted. I go to bed every afternoon when I get home. I go home about four o’clock. I don’t go to sleep when I lie down. I am too nervous to sleep. I just lie and rest. I sleep very poorly nights. There are nights that I do not sleep at all. I am taking medicine from the doctor to make me sleep. I have been taking it ever since the accident, but not all the time, not every night. I have been crawling along with my school work the best I can, and going to bed as soon as I get home. This trouble with my head and eyes, I think, is getting worse. I had been teaching twenty-three years and some months. In December of this year 1 will have completed twenty-six years. I am not able to continue-my school work. I never had this trouble before. At the time of this accident I was able to do my work vigorously.” The rule of damages applicable to the case permitted the jury to award to the plaintiff compensation for the pecuniary loss she had sustained from her injuries, and also fair and adequate compensation for the pain and suffering that she had undergone, and also ofor such as it was reasonably certain would be the necessary result of the injury which she had sustained. The pecuniary loss of salary was small, and there was no testimony offered to show that the plaintiff had paid or was liable to pay for any medical or other services. The testimony of the plaintiff that she was unable to continue her school work, as the result of the accident, and the testimony of the physician that any mental effort would develop symptoms that would render it impossible for her to use her brain, appear to be contradicted by the undisputed fact that the plaintiff resumed her school duties in April, 1895, four months after the-accident, and had continued them uninterruptedly down to the time of the trial, which took place in May, 1896, and the plaintiff was unable to show that during that period she had. been absent from her school duties more days than she had. •during a corresponding period prior to the accident. Upon this point she was asked, upon cross-examination, whether, from the time she" returned to her work, in April, to the time of the trial, she had lost as many days as she had during the same number of months immediately before the accident, and her answer was: I don’t know. It seems to me it might be about what I have lost before; perhaps not as much.”

Upon the facts thus briefly referred to in relation to the permanent character of the injuries, we are of the opinion that the verdict was excessive, and that it should be reduced to the sum of $5,000. The judgment should therefore be reversed, and a new trial granted, with costs to abide the event, unless the plaintiff stipulates within 20 days to reduce the verdict to the sum of $5,000, with a corresponding reduction in the amount of the extra allowance granted at the trial; and, if such stipulation is made, the judgment so reduced will be unanimously affirmed, without costs of appeal.

All concur.


author: O’BRIEN, J.

text:
    Emeline Lee v. Mart A. Timken.
    (Supreme Court, Appellate División, First Department.
    Nov. 13, 1896.)
    1. Equity—Adequate remedy at law.
    A woman who joined her husband in a deed in consideration of the grantee’s promise to pay off a mortgage on her property cannot, after her husband's death, have the deed set aside because of the grantee’s failure to pay the mortgage, since she has an adequate remedy at law by an action against the grantee for the amount of the mortgage.
    2. Deeds—Delivery—Confirmation.
    Plaintiff’s husband deeded to her and defendant each a house and lot. As a condition of plaintiff’s joining in the deed to defendant, the latter agreed verbally to pay a mortgage on the lot conveyed to plaintiff. The deeds were delivered, after the grantor’s death, by an attor- ' ney, in whose hands they were placed for that purpose. Plaintiff took possession of her property, collected rents, and received from defendant a part of the mortgage debt. Held, that plaintiff confirmed the deed to defendant, and could not have it set aside for want of delivery during the grantor’s life. 0
    3. Resulting trust—Payment of purchase money.
    ■ In New York there is no resulting trust in favor of a person paying the consideration for a conveyance to another.
    Appeal from special term, New York County.
    Action by Emeline Lee against Mary A. Timken. The complaint was dismissed, and plaintiff appeals.
    V. Wright Kingsley, for appellant; George E. Mott, for respondent.
   O’BRIEN, J.

—There are two causes of action set forth in the complaint, both on the equity side of the court. For a first cause of action, the plaintiff, Who is the widow of James Lee, alleged that he, in his lifetime, was the owner of certain real estate in the city of New York; that in July, 1891, he made a deed of a piece of real estate in Fifty-second street to the plaintiff, and at the same time he and the plaintiff made a deed of a piece of real estate in Fifty-first street to the defendant, and that he delivered both deeds to an attorney, with instructions to hold them until his death, and then to turn them over to the respective grantees ; that at the time of the making of the deeds and prior thereto it was verbally agreed between the plaintiff and defendant, as a condition of the plaintiff joining with James Lee in the deed to the defendant, that the latter, upon coming into possession of the property, would pay off and discharge a mortgage of $10,000 on the premises deeded to plaintiff ; that thereafter, Lee having died, and each of the parties having received and accepted their respective deeds, the defendant paid to the plaintiff $4,000, to be applied upon the said $10,000, but has failed to pay the balance. And plaintiff asks to have the deed made by her and her husband to the defendant set aside, on the ground that it was not delivered until after the death of James Lee, and that it was obtained without the payment of the purchase money, and was null and void as a gift for failure to deliver it to her during life.. For a second cause of action the plaintiff alleges that certain premises in Fifty-second street were deeded to defendant; that-the consideration for the purchase was paid by James Lee, who-was the father of defendant; that a flat house subsequently erected upon the lot thus purchased was paid for by the father. And the plaintiff asks that it be adjudged that said deed is now held by the defendant, as trustee for the estate of James. Lee, and that it be held void as to the defendant.

It is unnecessary to refer to the numerous defenses interposed, because the questions presented for review upon the exceptions may be disposed of by a consideration of the evidence offered by the plaintiff upon the trial. As to the first cause of action, it was shown that the plaintiff had accepted her deed, had received the $4,000 from the defendant, and her claim for equitable relief is based substantially upon the ground that she should receive the balance of $6,000, and that by reason of the failure of -the defendant to pay it she can disaffirm her action in electing to take her deed in lieu of dower, and now have the same admeasured to her in the property which was conveyed to the defendant. When it is recalled that the plaintiff has had possession of the property since September, 1891, and has collected the rents thereof, and has accepted the sum‘of $4,000 in cash from the defendant, thereby ratifying and confirming the execution and delivery of the deeds sought to be set-aside,, it is apparent that she is not now in a position to disaffirm the ■election which she made in receiving her deed in lieu of dower. As to the $6,000 remaining, that is a claim which she can enforce in an action at law, and it cannot be made the basis for equitable relief. As to the second cause of action, it appears that the property was paid for by the father of defendant, as was the house erected on the premises, and that the deed was taken out in the name of the daughter. But it appears that it was recorded the day after it was made, and so remained of record until after the death of the father. The claim made by appellant is that in some way there was a resultant trust in favor of the estate of James Lee; but the statute effectually disposes of this by declaring that property bought or money paid under these circumstances will only establish a resultant trust in favor of creditors, and the cases construing this statute as to resultant trusts are uniform in upholding the rule that no trust results in favor of a party paying the consideration for a" conveyance. We have thus given the most favorable view to the testimony in support of the two causes of action set forth in the complaint; because, assuming that they could have been established, and, as so established, entitling the plaintiff to no such relief as she asks, it effectually disposes of the numerous exceptions taken to rulings excluding evidence, which could only be evidence directed to supporting the conclusions which, from the record, we are able to reach without the aid of the testimony thus excluded.' We think, as did the learned trial judge, that, there being no • allegation nor proof of fraud, or of undue influence or overreaching in the transaction, but that, the plaintiff having entered into an agreement which she at the time thought was reasonable and fair, it is too late for her to disaffirm her action with respect to the conveyances made as set forth in her first cause of action. And as tó her second cause of action she is not in a position to invalidate the deed which was made to the defendant, though the consideration therefor was paid by James Lee.

We think, therefore, that the case was correctly disposed of by the learned trial judge, and that the judgment should be affirmed with costs.

All concur.


author: PER CURIAM.

text:
    Cora Imogene Farleigh v. Alfred J. Cadman et al.

    (Supreme Court, Appellate Division, Second Department.
    December 1, 1896.)
    1. Gifts—Bank deposits.
    A deposit in the bank by a wife in the name of her husband, and in his presence, in trust for a third person, creates a gift in trust, though the husband controls the fund during his life.
    3. Same—Control of deposits—Trustee’s property.
    Deposits in a bank by a husband to the credit of an.account opened by his wife in his name, in trust for a third person, are subject to his control, and do not pass as a gift to the beneficiary of the trust, where the husband declared at the creation of the trust that he would control it for life, and finally placed the additional deposits to the credit of another.
    Appeal from special term, Kings County.

      Action by Cora Imogene Farleigh against Alfred J. Oadman .and others to have $778 and interest, deposited by Sarah Cad-man in the name of William J. Oadman, for the benefit of the plaintiff, declared a trust, and to have other moneys added by William J. Oadman to the deposit declared a part of such trust fund. From a judgment declaring a trust in part of such fund in favor of plaintiff, both parties appeal.
    The opinion of Mr. Justice Gfaynor at special term is as follows :
    That Mrs. Oadman intended to make a gift to thé plaintiff of the money standing to her credit in the bank is unquestionable. She so told the treasurer of the bank, and advised with him. It was his suggestion that the gift might be made by not putting the money in the name of the plaintiff, in the bank, but by putting it in the name of Mr. Oadman as trustee of the Elaintiff, and Mrs. Oadman acquiesced in the suggestion. She ad no intention of making a gift to her husband of the money, and what she said when transferring the account to his name, as trustee for the plaintiff, at the bank, does not prove that she had, even if it were competent to so prove. There was, at all events, a valid, gift to the plaintiff of the money Mrs. Cad-man had on deposit. Mr. Oadman expressed an intention of controlling it during his life, when the account was being transferred to him as trustee. This might evince that he was to be trustee for life; or that he desired to control the fund, but it does not prove that Mrs. Oadman was not making an absolute gift; for that was her intention, as I find upon the evidence. But, as to the deposits made to 'this trust account afterwards by Oadman, I think the intention to control, expressed by Mr. Oadman at the time of opening the account, governs them. The cases treat the question of the gift as one of the intention. Willis v. Smyth, 91 N. Y. 297; Mabil v. Bailey, 95 N. Y. 206. And I find, so far as these deposits were concerned, the intention of Mr. Oadman was that they were not to be an absolute gift, but to remain subject to his control. This appears from what he said when he opened the account, and, while that does not affect the gift of Mrs. Oadman, was, though so intended, also to apply to any moneys of his own which he should after-wards deposit to that account, and it did so apply. Also, the moneys deposited after the account was changed to be in trust for Alfred J. Oadman do not belong to the plaintiff. Let findings be prepared accordingly.
    H. S. Bellows (G. G. Reynolds, of counsel), for plaintiff ; Benedict & Benedict (R. D. Benedict, of counsel), for defendants.
   PER CURIAM.

Judgment affirmed, without costs, on •opinion at special term.

All concur.


author: McADAM, J.

text:
    Herman F. Sieling v. Jacob E. Clark.
    (Supreme Court, Appellate Term, First Department.
    November, 25, 1896.)
    1. Fraud—Prima facie case—Passing bad checks.
    A prima facie case of fraud is made out by proof that a party induced another to cash his checks when he had not enough funds in the bank to meet them.
    2. Same—Question for jury.
    Where one drew checks against a bank in which he had not enough funds to meet them, the question whether the fact that he had an account with the bank, and kept on depositing and drawing money, furnished reasonable expectation that the checks would be paid, is for the-jury.
    8. Trial—Instructions—Prejudicing jury.
    It is error for a judge, in an action for deceit, after instructing the jury that defendant can be committed to jail if he does not pay the judgment, to add that he thinks plaintiff has presented a “ very thin ” case, since this is apt to prejudice the jury against plaintiff.
    Appeal from Ninth district court.
    Action by Herman F. Sieling against Jacob E. Clark. There was judgment in favor of defendant, and plaintiff apjieals.
    W. E. Benjamin, for appellant; D. M. Van Cott, for respondent.
   McADAM, J.

—The action was to recover $150, obtained by the defendant from the plaintiff on three checks of the defendant for $50 each, which the plaintiff cashed for him. • The checks were drawn by the defendant, signed “ J. E. Clark, Trustee,” to the order of “ J. E. Clark,” upon the Merchants’ Exchange National Bank, and were dated, respectively, May 13, 15, and 16, 1895, and indorsed by the defendant to the plaintiff. The action was in form for deceit, upon the ground that on the morning of May 13, 1895, when the plaintiff cashed the first check of $50, the defendant had not a dollar in the bank to meet it. On the contrary, his account was overdrawn $4.95. On the morning of the 15th, when the defendant got the second check cashed, instead of having $100 in the bank to meet the two checks, he had but $57.11 there. On the morning of the 16th, when he got the third check cashed, he had but $40.11 in the bank, and on the following morning he had but $18.36 to his credit therein. The defendant claims that he deposited $569 on May 17th, but checks were immediately drawn against ■ it, and the money drawn out before the plaintiff’s checks were presented. Other deposits were made by the defendant, but his daily balances were exceedingly small. The plaintiff deposited the checks in the Hamilton Bank, where he kept his. account, and they came back-marked N. Gr.” He called upon the defendant, who said there must be some mistake in his account, and to again present them. They were again pre- • sented, and came back with the same mark. When called upon subsequently for an examination, the defendant said he was in trouble, and would make the checks good.

Persons who obtain property on bank checks, representing them to be good, when they knew they were not, having been convicted (Smith v. People, 47 N. Y. 303) Foote v. People, 17 Hun, 218 ; Lesser v. People, 73 N. Y. 78); and the Penal Code contains stringent provisions on the subject of false tokens (sections 529, 569). Even when no oral representation is made, the act of drawing and issuing a check amounts to a representation that the drawer keeps an account with the drawee, and that there are funds on deposit to meet it. Daniel, Meg. Inst. §§ 1597, 1629. The drawing of a bank check presupposes the existence of a fund on deposit over which the drawer has a disposing power. Morrison v. Bailey, 5 Ohio St., at page 16; Espy v. Bank, 18 Wall., at page 620. It is only where there is an actual deposit that a drawer has a right to expect that his drafts will be honored. “ The giving of a bank check is universally understood in commercial circles as an affirmation that there are funds on deposit to meet it, and the payee receives it on that understanding But, if, in fact, the check is drawn on a bank where the drawer had no funds, and without any reasonable expectations on his part that it will be paid, the fraud is manifest.” Cooley, Torts (2d Ed.) p. 560. See, also, Merchants’ Bank v. State Bank, 10 Wal., at page 647; Bull v. Bank, 123 U. S., at page 111, 8 Supt. Ct. 62. The drawer is bound to know the state of his account with his bank, and if he withdraws funds which he had in the drawee’s hands when he drew the check, and thereby defeats its payment, he commits a fraud on the holder. Daniel, Neg. Inst. §§ 1081, 1596. The drawing of checks without funds to meet them is, when unexplained, a badge of fraud. Greenleaf v. Mumford, 19 Abb. Prac. 469, 30 How. Prac. 30.

In Brown v. Montgomery, 20 M. Y. 287, the court held that:

When a business man in a commercial town fails to meet his paper, payable at a bank, and especially his checks upon the bank at which he keeps his account, the natural inference which one draws is that he is no longer able to pay his debts. Such a circumstance may occur from oversight or accident, but there are exceptional cases. The failure to meet the paper is in itself á suspension of payment; and notice of the fact, unaccompanied with any explanation which would give it a different character, is notice of the commercial failure of the party.”

See, also, Booth v. Powers, 56 N. Y., at page 32.

A person advancing to another the full face value of a check has the undoubted right to expect that the draft represents the equivalent of the money advanced upon it, and will procure that amount on presentation. If the one inducing the advance knows that such result cannot follow, and the person who has parted with his money is decei\red, to his injury, is it not a deceit for which the one at fault is answerable % We think it is. The rule is that every one must be presumed to have intended the natural and probable consequences of his acts ; and when his acts are voluntary, and necessarily operate to defraud others, he must be deemed to have intended the fraud. Coursey v. Morton, 132 N. Y. 556, 43 S. R. 673.

The acts of the defendant as proved made out a prima facie case of fraud, and it became his duty to furnish some explanation which would give them a different character. Whether the facts that the defendant actually kept an account with the-bank on which the checks were drawn, and that he kept on depositing money and drawing against it, furnished reasonable expectations that the checks would be paid on presentation, this, supported by any explanations the defendant had to offer in justification, was a question exclusively for the determination of the jury, upon the evidence adduced as to fraudulent intent.

The justice, in his charge, among other things, said: “ Although I did not intend to express any opinion, I think it is a very thin case, and I hesitated in submitting the case to you.” To the last portion of this charge the plaintiff excepted. The justice had previously instructed the jury that the case differed from the ordinary action of-debt, because the defendant could be committed to jail if he did not pay the judgment. With this admonition in mind, the charge that it was a “ very thin ” case was calculated to leave the jury to find for the defendant, and they did so. The definitions of the word “ thin ” (ignoring the adverb “very”), as given by Webster, show the charge to be objectionable. These are, some of them: “ Slim,” “ small,” “ slender,” “ slight,” “ flimsey.” The case presented by the plaintiff does not permit of any such criticism. Though a judge, in charging the jury, may express an opinion, so long as he does not instruct them to find in accordance with such opinion, and fairly submits to them the facts (Baylies, Trial Prac. 236), yet, as was justly said in Sindram v. People, 88 N. Y., at page 202, “ it is desirable that the court should refrain, as far as possible, from saying anything to the jury which may influence them either way in passing upon controverted questions of fact, and perhaps comments on the evidence-might be carried so far as to afford ground for assigning error.” And in Hoffman v. Railroad Co., 87 N. Y., at page 32, the court said: “ In view of the just regard which is paid by jurors to the opinion of the judge, it is doubtless proper that, in a case of conflicting evidence, he should use great caution in expressing his opinion.”

Upon the entire ' case, the jury were to weigh the evidence, to the end that they might fairly determine whether the defendant did the acts complained of wdth a fraudulent or an honest intent ; and, in view of the issue and the character of the proofs, we think the charge of the justice may have had an effect upon the jury prejudicial to the plaintiff. It could hardly be otherwise

For this reason, the judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the event.

All concur.


author: WILLARD BARTLETT, J.

text:
    In the Matter of Application by William C. Many, for a Writ of Certiorari.
    (Supreme Court, Appellate Division, Second Department.
    Dec. 1, 1896.)
    Elections—Ministerial duties—Certiorari.
    The duty of election inspectors to set an automatic ballot machine at a required number before proceeding with the voting (Laws 1896, c. 168, §§ 3, 11) is ministerial, and its exercise cannot be reviewed by certiorari.
    Appeal from special term, Westchester County.
    . Application by William C. Many for a writ of certiorari to review the action and proceedings of the common council of the city of Mt. Vernon, and the action and proceedings and determination of the inspectors of election of the First election district of the .First ward of said city on the 19th day of May, 1896. From an order of the special term denying his application for the writ, the applicant appeals.
    Wm. J. Marshall, for appellant; David Swits, Jr., for respondents.
   WILLARD BARTLETT, J.

-—On the 19th day of May, 1896, a charter election was held in the city of Mt. Vernon, at which was to be chosen, among other officers, an alderman for the First ward of that city. The candidates for this office were Harvey S. Armstrong, William C. Many, and Walter A. Miles. The statement of the result in the First election district of the First ward, made by the inspectors of election, showed that the whole number of votes cast for the office of alderman therein was 183, of which Harvey S. Armstrong received 178, William C. Many received 2, and Walter A. Miles received 3. Hpon the official canvass subsequently made by the common council of the city, Harvey S. Armstrong was declared elected alderman of the First ward by reason of the fact that it appeared from the certificate of the inspectors that he had received'a plurality of the votes for such office. Mr. Armstrong duly qualified ‘by taking the prescribed oath and filing it in the office of the city clerk. At this charter election the city of Mt. Vernon used the Myers automatic ballot machine, in the exercise of the authority conferred by the several statutes on that subject. These statutes are chapter 764 of the Laws of 1894, chapter 73 of the Laws of 1895, and chapter 163 of the Laws of 1896. Hnder the first of these acts the common council of a city which had adopted the Myers automatic ballot machine ivas required to provide one machine for each polling place, “ with the dials of the counters set nine thousand nine hundred and ninety-nine; ” and on the day of the election, before the beginning of the voting, it was made the duty of' the chairman of ■ the inspectors to “ fully open the sliding doors of the counter compartment, in the presence of the inspectors and watchers, and, if not already so done, set each and every labeled counter at 9,999.” Laws 1894, c. 764, §§ 3, 11. By the act of 1896, sections 3 and 11 of the original statute were amended so that the common council was required to provide a machine for each polling place, with the dials of the labeled counters set at nine,” instead of 9,999 ; and it was made the duty of the chairman, on election day, to “ fully open the sliding doors of the counter compartment, in the presence of the inspectors and watchers, and, if not already so done, set each dial in every labeled counter at nine,” instead of 9,999.

The affidavit made in this proceeding by Robert Foreman, one of the persons who acted as an inspector in the First election district of the First ward, at the charter election of 1896 in the city of Mt. Yernon, and the petition of William G. Many, tend to show that the inspectors proceeded in ignorance of the amendment of 1896, and assumed that the counter should be set at 9,999, instead of 9. Mr. Many’s petition also contains allegations from which the inference may be drawn that a mistake was made even in the attempt to observe the provision of the statute before the amendment, and that the machine had been erroneously set, so that the number upon the counter was 9,860. Although only two votes were returned as having been cast for the petitioner, he produces affidavits from seven electors, who swear that they voted for him, by pushing in the yellow knob to the right of his name on the ballot machine.. Ills contention in the present proceeding is that an error was committed in the number of votes recorded for him, by reason of a mistake in setting the counter at the wrong figure ; that the inspectors are required by the statute, in the first instance, to make a determination as to what number is upon the dial of the machine; that this determination is judicial-; and, hence, that it is reviewable by the common-law writ of certiorari. We are unable to agree with this view of the character of the duty imposed upon the inspectors in regard to the setting of the counters in the Myers automatic ballot machine. That duty, it seems to us, is purely ministerial. ’ They are not called upon to decide or determine any question in respect to the figures which shall appear upon the counter, but their chairman is commanded to see to it that the counter shall be set so as to show certain figures specified in the statute. A more distinctly administrative function it would be difficult to imao-ine. No rule of law is better settled in this state than that3the manner in which a duty of this sort is exercised cannot be reviewed by certiorari. People v. Board of Sup’rs of Queens Co., 131 N. Y. 468, 43 S. R. 665. The court below was therefore right in denying the application of the petitioner. The facts stated in Ms papers suggest the iDossibility, not to say the probability, of errors in the operation of ballot machines, which may give rise to serious consequences in the future, but they disclose no case for a resort to the writ of certiorari as a remedy for any wrong which he may have suffered.

The order appealed from must he affirmed, with $10 costs and disbursements.

All concur.


text:
    James Hawthorne v. Alfred C. Coursen.
    (Supreme Court, Appellate Term, First Department.
    November 25, 1896.)
    Landlord and tenant—Breach of lease.
    Where a landlord, before the lease has expired, relets the premises, without physical abandonment by the tenant, the tenant is released from all obligations, and may recover money deposited as liquidated damages in case of breach by him.
    Appeal from Eighth district court.
    Action by James Hawthorne against Alfred C. Coursen. There was a judgment in f-avor of plaintiff, and defendant appeals.
    A. C. Coursen, in pro. per; J. Cochrane, for respondent.
   McADAM, J.

—The plaintiff had been a tenant of the defendant, in respect of the premises Ho. 98 Greenwich avenue, this city, for a number of years, commencing May 1,1891; and $06 (being the amount of the rent for the last month of the year) was deposited with the defendant as security for the performance by the tenant of the covenants of the lease. The lease bears date February 26, 1891, and is for one" year from May 1, 1891, at the yearly rent of $800, payable in equal, monthly payments, upon the 1st day of each month of the term, or, at the option of the tenant, the sum $1,000 yearly, payable in like manner between the 2d and 10th of each month. The deposit was made under this lease, and continued during each of the successive renewals hereafter referred to. About the expiration of the first term, an agreement was indorsed on the lease in these words:

“ Within agreement is hereby renewed for one year from May 1, 1892. Any rent for April, 1892, reserved as such, or as liquidated damages in cáse of breach by tenant, to be so reserved on renewal as rent for April, 1893, or damages as aforesaid.”

Renewals substantially similar were indorsed on the lease from May 1, 1893, May 1, 1894, and May 1, 1895, thereby extending the term to May 1, 1896. During the continuance of these leases, up to December 1, 1895, the defendant received the rent monthly, or in installments making up the monthly sum, and in no instance exacted rent at the rate of $1,000 a year; the difference between the latter sum and $800, the rental paid, being evidently intended as a penalty to insure prompt payment. Moreover, the defendant admitted on the stand that he did not claim any forfeiture on account of dilatory payments, and, in a summary proceeding hereafter referred to, testified that he did not regard the $66 as forfeited on account of such delay in payments. On December, 1, 1895, a serious accident having befallen the plaintiff, which necessitated his removal to a hospital, the defendant relet the premises to one Susanna Duff, a relative of the plaintiff, at the rate of $66.66 a month. The effect of this was to release the plaintiff from all further obligations under his lease. Smith v. Maxfield, 9 Misc. Rep. 42, MacKellar v. Sigler, 47 How. Prac. 20; Smith v. Niver, 2 Barb. 180, 182. It does not appear that there was any physical abandonment of the premises by the plaintiff, or any necessity which authorized a reletting on his account. He was not consulted about this rehiring, or notified that it was made on his account. Underhill v. Collins, 132 N. Y. 269, 43 S. R. 785 ; Lewis v. Angermiller, 89 Hun, 65, 69 S. R. 248. He never consented that his deposit remain as security for the performance of the new tenant’s obligations under the hiring. So that the plaintiff’s right to a return of his deposit became complete on December 1, 1895.

In April, 1896, the defendant commenced a summary proceeding against the plaintiff, alleging that he was still his tenant "in regard to the premises in question, and that he owed the rent from February 1, 1896, to March 1,1896. The plaintiff appeared in the proceeding, and filed a verified answer denying each and every allegation in the landlord’s petition contained, except that prior to December 1, 1895, he hired the premises from the petitioner; but he alleged that his said agreement of hiring expired December 1, 1895. The specific issue thus joined was tried in the Third district court, and final order rendered April 25,1896, in favor of the tenant. As this distinctly appears upon inspection of the proceedings, the adjudication determined that the plaintiff’s tenancy in said premises expired December 1, 1895, as alleged by the tenant. Insurance Co. v. Bishop, 1 Daly, 449; White v. Coatsworth, 6 N. Y. 137; Kelsey v. Ward, 16 Abb. Prac. 98, affirmed 38 N. Y. 83 ; Jarvis v. Driggs, 69 N. Y. 143 ; Culross v. Gibbons, 130 N. Y. 447; 42 S. R. 527; Lewis v. Pier Co., 125 N. Y. 341, 348; 34 S. R. 973. This adjudication is important only as corroborative of the fact that the plaintiff’s tenancy expired December 1, 1895, and that the letting by the plaintiff from that day, to Mrs. Duff, created an independent tenancy after that date. The authorities hold that on the determination of a lease, whether by summary proceedings or otherwise, the lessee is entitled to a return of any moneys deposited as security ; that such deposit is to be regarded as a penalty, and not as liquidated damages, and hence the lessor is only entitled to retain therefrom sufficient to indemnify him for damages before his re-entry, the lessee having a right to the surplus. Scott v. Montells, 109 N. Y. 1; 14 S. R. 21; Chaude v. Shepard, 122 N. Y. 397; 33 S. R. 725. Neither by his answer, nor by the proofs given upon the trial, did the defendant establish that the plaintiff owed him anything, or that the plaintiff was liable for damages by reason of any breach' which authorized the defendant to retain any part of the deposit. Forfeitures are not favored, and slight acts indicative of an intention to ivaive the penalty are regarded as a complete waiver. Tayl. Landl. & Ten. §§ 287, 497, 498; 8 Am. & Eng. Enc. Law, 446 ; Murray v. Harway, 56 N. Y. 337.

We fintl no merit in the exception, and the judgment must he affirmed, with costs.

All concur.


author: BISCHOFF, J.

text:
    Sarah Lazarus et al. v. Bernhard J. Ludwig et al.

    (Supreme Court, Appellate Division, First Department.
    November 25, 1896.)
    Landlord and tenant—Evidence of oral lease—Res gestje.
    Evidence that an attorney had entered into an oral lease in behalf of his client as lessee, and that a memorandum embodying its terms was signed by a third person in behalf of the lessee, and witnessed by the attorney, and that the lessee knew of the lease, and paid the rent reserved, though he claimed to hold under another agreement at a different rent, is sufficient to admit the memorandum in evidence as part of the res gestae in regard to the oral lease, though there is no direct evidence that the attorney was authorized to make it.
    Appeal from Third district court.
    Summary proceedings by Sarah Lazarus and others against Bernhard j. Ludwig, impleaded. There was a final order in ■favor of defendants, and petitioners appeal.
    Nelson S. Spencer, for appellants; William Strauss, for respondents.
   BISCHOFF, J.

—The petitioners, as landlords, instituted this proceeding to dispossess the respondent and his under-tenants from the premises No. 36 West Fourteenth street, alleging that the latter held over after the termination of the lease under which the premises were demised, which the landlords claimed provided for a monthly letting, terminable at their election. The lease relied upon by the landlords was claimed to have been entered into by the tenant through one Acker, as his agent; and the present proceeding was based upon the same allegations, but not upon the same proofs, as those which formed the foundation of the prior proceeding, resolved in favor of the tenant, with the approval of this court, upon the landlords’ appeal (Lazarus v. Ludwig, 17 Misc. Rep. 378; 40 N. Y. Supp. 97), the justice having dismissed the petition for failure of proof that this monthly lease was entered into on behalf of the tenant by any one authorized to bind him in the transaction * the landlords having then relied upon an alleged written lease, purporting to have been signed by the tenant by one Morris J.: Ludwig. At the trial of the issues raised by the petition and answer in the proceeding now under review considerable testimony was given on behalf of the landlords in support of the-fact that Acker had entered into a lease, such as contended for by them, orally, and that a paper writing, embodying its: terms, had been subscribed for the tenant by Morris J. Ludwig, witnessed by Acker, at the time of this alleged oral greement. This paper was offered in evidence several times during the trial, as being a part of the res gestae with regard to the oral lease ; not as the lease itself, since Morris J. Ludwig had no apparent power to bind the tenant; but the paper was excluded, and afterwards all evidence as to .the oral lease with Acker was stricken from the record upon the ground that there was no evidence in support of Acker’s authority to make-file agreement for the tenant defendant. We think that the exclusion of this paper was erroneous, since it was inferable from the facts in evidence that this authority existed in Acker to a sufficient degree to furnish foundation for the admission of the paper as part of the res gestae, the issue arising to depend ultimately upon the preponderance of the proof. Smith v. Railroad Co., 4 Abb. Dec. 262. The tenant had been in possession of these premises since the year 1885 under a lease which was terminated by a warrant in dispossess proceedings, issued June 18, 1895, and the terms of his tenancy since that date furnished matter of dispute in this proceeding. The landlords’ contention was that this agreement with Acker was made about the time when the tenant’s original lease was thus terminated, and that such lease called for the payment of $750 monthly rent. It is undisputed that the tenant paid the sum of $750 monthly as rent from June, 1895, to May, 1896, and that at least in February, 1896, he had actual knowledge of this purported lease as made with Acker. No written agreement with the landlords, expressing terms of letting contrary to those alleged in the petition, appears to have had existence; and while the tenant’s testimony was that he held under a. verbal agreement with the landlords, with terms differing from those alleged by the latter, his evidence was by no means conclusive of the matters in controversy. It is true that there was. no direct evidence of authority in Acker to make a lease for the tenant, but he was not a stranger to the questions arising between the parties, being the tenant’s attorney at law in the proceedings had prior to June, 1895. As attorney at law, solely, his agency was not established in this particular trans-* action; but since, apart from the tenant’s testimony, no agreement of letting after June, 1895, was shown, and it appearing that the tenant remained in possession, paid the amount of rent. reserved in the alleged lease, and continued to pay it after he admittedly had knowledge of Acker’s act, wé think that there was sufficient inference to be drawn of Acker’s original authority to support proof of his actions in the matter, and so of the written agreement or memorandum offered in support of the fact that an agreement had been made, as part of the res gestee. The final order, as made, was for a dismissal of the proceedings, and this necessarily resulted from the state of the record when all proof in support of the lease alleged in the petition was stricken out or excluded. It by no means appears that the order was based upon the tenant’s evidence of an agreement for letting to endure pending the settlement of certain disputes existing between the landlords and their immediate lessors of the premises. True, the justice might have so found, or, again, he might have been satisfied that there was no express agreement as to the endurance of the tenancy, and that it was, therefore, to endure, by force of statute, until the 1st day of May, succeeding. 2 Rev. St. (9th ed.) p. 1818, § 1. Upon either of the last two theories mentioned the finding would still have been adverse to the landlords, but they were entitled to a consideration of the facts surrounding the making of the lease alleged in their petition, since there was sufficient proof, furnished by inference to be drawn frprn the circumstances, that the assumed agent making such lease had authority to make it to support evidence of the facts of the transaction. Upon all the proof the justice might still have found in favor of the tenant ; but the landlords’ evidence should have been considered, and, had it been, we cannot say that the result of the proceeding would not have been favorable to them. Without that evidence, the only possible conclusion was that resulting in the order appealed from, and the error was necessarily prejudicial.

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

All concur.


author: BISCHOFF, J,

text:
    Sarah Lazarus et al. v. Bernard J. Ludwig.
    (Supreme Court, Appellate Term, First Department.
    November 25, 1896.)
    1. Judgment—Incomplete record—Res judicata.
    An order which dismisses the petition in summary proceedings, but fails to show whether the tenant’s affirmative defense or the landlord's failure of proof caused the dismissal, is not, in the absence of evidence on that point, a bar to another proceeding by the landlord to recover the premises.
    2. Summary proceeding—Evidence—Invalid lease.
    Evidence of a lease made in behalf of defendant by an alleged agent is admissible in explanation of the possession of the premises by defendant, where plaintiff admits the invalidity of the lease, and seeks to recover possession of the premises.
    Appeal from Third district court.

      Summary proceedings by Sarah Lazarus and others against Bernard J. Ludwig. There was a final order in favor of petitioners, and defendant appeals.
    William Strauss, for appellant; Nelson S. Spencer, for respondents.
   BISCHOFF, J,

—This appeal challenges the correctness of a final order in summary proceedings made in favor of the landlords, petitioners, for the possession of the premises No. 36 West Fourteenth street, in this city, the proceedings in •question being the third of a series instituted since May 1, 1896, by the landlords, and the two preceding having resulted in the dismissal of the respective petitions.

From an examination of the record we conclude that the •order before us should be affirmed, but, in order to a statement of our-views, it becomes expedient to review the facts touching the relations of these parties as landlord and tenant.

In November, 1885, the appellant, as tenant, entered into an agreement of lease to expire May 1, 1895, and held possession of the premises in question by the force of that agreement until the relation of landlord and tenant existing thereunder was terminated by a warrant in summary proceedings of date June 18, 1895. Code Civ. Proc. § 2253. Still remaining in possession, his occupancy was sought to be terminated by the landlords by summary proceedings instituted May 2, 1896, based upon a notice to quit, given five days before the 1st clay ■of May, the petition of the landlords alleging a tenancy from month to month by agreement made on or about June 1, 1895, “terminable at the election of either party upon such notice. In that proceeding the landlords sought to substantiate their allegations solely through proof of a written lease executed by one Morris J. Ludwig on behalf of the tenant, and dated June 1, 1895, but the paper was excluded, when offered in evidence, for failure of proof that the subscribing party had authority ' to bind the tenant, and the petition was dismissed, the dismissal or nonsuit being thereafter sustained upon an appeal to this court. Lazarus v. Ludwig, 17 Misc. Rep. 378, 40 N. Y. Supp. 97. On May 15, 1896, these landlords again brought proceedings for the dispossession of the tenant upon substantially the same allegations as those contained in the former petition, basing their claim of the tenant’s holding over not upon the written purported lease, but upon an oral agreement, embodying the same terms, entered into with one Acker, in the month of June, 1895, the paper writing being relied upon only as corroborative evidence in the nature of a memorandum, admissible as a part of the res gestae. Testimony in support of this oral lease was given at the trial, but was afterwards stricken out, and the paper writing was excluded, all upon the ground that there was no proof to connect the tenant with the acts of this assumed agent, and the petition was dismissed. In this second.' proceeding the tenant testified to an oral agreement of letting, made by him directly with the landlords, whereby his tenancy was to subsist pending the settlement of certain disputes existing between such landlords and their lessors of the premises ; and, since it appeared that these disputes had not been settled, his claim was that he was still properly in possession by agreement. The justice, in his ruling dismissing the petition, may or may not have found favorably to the contention of the tenant in this regard, since the result necessarily followed from the absence of proof in support of the petition, after all evidence given to show the existence of the lease alleged by the landlords had been stricken out or excluded. From the dismissal of this second petition the landlords took an appeal to this court, and we have held the appeal to be well taken for error in the exclusion of certain of their evidence (see Lazarus v. Ludwig, 41 N. Y. Supp. 997, handed down herewith) ; but the record of that proceeding, in so far as it formed a portion of the evidence upon the trial of the issues now under review, must needs have been accorded its full effect at that time, although the order has since been reversed. The present proceeding was instituted July 30, 1896, and was founded upon a petition setting forth the fact that the landlords had entered into an assumed lease with Acker as agent for the tenant, and that such lease had been adjudged void, in effect, by a final order favorable to the tenant, made in summary proceedings based upon it; that the tenant had been in possession of the premises since June, 1895, under and by virtue of no agreement providing for the duration of the term; and that the letting was terminated by operation of law on May 1, 1896, after which date the tenant held over. The justice had found for the landlords upon the issues presented, and it is conceded that the finding was based upon the statute relating to tenancies, without agreement as to duration, in the city of FTew York, which are thereby terminated upon the 1st day of May succeeding. 2 Rev. St. (Banks Bros., 9 th Ed.) p. 1818, § 1. We think that the final order is unassailable upon the record, and proceed to discuss the points raised by the tenant, appellant.

The record of the proceeding of May 15, 1896, was placed in evidence by the tenant in this proceeding, and made a part of the evidence upon the trial; and a dismissal of the petition was moved upon the ground that the issues had been adjudicated favorably to the tenant, the final order thus resulting being a bar to the present proceeding. It ivas ruled otherwise, and correctly, beyond question. The adjudication of the final order in question was that the landlords had failed to establish their petition by proof, and the present proceeding was brought, not in opposition to, but in direct recognition of, that adjudication. It was adjudged that they had shown no lease, and, acquiescing, they proceeded upon an invocation of the statute applicable to cases wher.e there was occupation and payment of rent, but no agreement particularly specifying the duration of the term. Ror could the adjudication be held to have concluded the issues favorably to the tenant’s claim that there-was a lease, but differing in terms from that alleged by the landlords in their petition. True, the issue as to that lease had been litigated, but its determination was not essential to the result reached, nor necessarily incidental to it; and from the record of the adjudication nothing appears from which it might be gathered that the tenant’s affirmative defense, rather-than' the landlords’ failure of proof, brought about the result, which was merely a dismissal of the petition. As was said in Lewis v. Pier Co., 125 N. Y. 348, 34 S. R. 973,—a case very similar upon the facts :

“ Where a judgment may have proceeded upon either of any two or more different and distinct facts, the party desiring to avail himself of the judgment as conclusive evidence upon some particular fact must show affirmatively that it wfent upon that fact, or else the question is open for a new contention.”

See, also, .Towns v. Nims, 20 Am. Dec. 578; Russell v. Place,. 94 U. S. 606.

Failing proof, inherent or extrinsic, as to the ground upon which this adjudication proceeded, it could not be conclusive upon the fact that the lease was as the tenant claimed, and the-matter was still one for litigation.

The appellant next assigns error to the admission of testL mony, adduced on behalf of the landlords, as to the oral lease-entered into by them with Acker on or about June 1,1895, and to the reception in evidence of the purported written agreement signed by Morris J. Ludwig. This last was admitted to-the record, not as a lease, but in support of the allegations of the petition “ as to the occupancy of the tenant,” and the-evidence of Acker’s acts was received under objections which went to the authority of the agent, and to the materiality and. relevancy of the testimony. To prove a lease with the tenant,, this evidence could not properly have "been received, since,, under the allegations of the petition, and by the force of the-prior adjudication as conceded by the landlords, there was no such lease; but, in explanation of the possession by 'the tenant,, proof of an assumed lease, of an understanding that there was a lease, but in fact no lease, was relevant and material to the issues raised by the petition and answer, since the latter set up-an existing lease, and the landlords’ reliance was placed upon the statute invoked because of the failure of the agreement-presumed to exist according to their contention. In this aspect, proof of Acker’s authority, express or implied, original or by ratification, was not a material matter. Granting the absence of authority, the question was one only of the landlord’s assumption of a fact, not of the existence of a contract,, because admittedly there was none. Finally, the case resolves, itself into one of fact upon a conflict of evidence relative to the tenant’s claim that there was a subsisting oral agreement for a tenancy to endure pending the determination of the landlords’ dispute with certain third parties, which determination had not been reached at the time when the proceeding was commenced. Any such agreement was denied by the landlords, and the justice resolved the point in their favor upon satisfactory evidence. We find no reason for disturbing his conclusion in this regard upon the facts, nor with the disposal of the case upon the resulting situation of the parties, since the landlords’ explanation of the tenant’s possession without an enforceable agreement of lease was acceptably within the probabilities of the case, and the preponderance of the evidence was not contrary to the finding that the statute, and not any contract between the parties, controlled their relations, and terminated the tenancy upon the 1st day of May, 1896. Final order affirmed, with costs.

All concur.