author: Andrews, J.

text:
    Croft C. Carroll, Resp’t, v. Clayton E. Sweet, App’lt.

      (Court of Appeals,

      Filed June 2, 1891.)

    1. Bills and notes—Checks—Liability of indorser of—Payment by CHECK OF A THIRD PARTY.
    A creditor in receiving from a debtor a check of a stranger endorsed by such debtor is under an obligation to present the same hot later than the next day, and where he holds it for nine days the debtor is discharged from liability as endorser of the check irrespective of any question of loss or injury.
    3. Same.
    In an action upon the original indebtedness it was shown that plaintiff at the request of the maker of the check held it for nine days, during which time the maker had the means of payment at command and would have provided for or paid the check if payment had been insisted upon, and that plaintiff presented it for payment after the maker had become insolvent. Feld, that it was for the jury to find whether plaintiff’s conduct had imposed a pecuniary injury upon defendant, and that to the extent of that injury the debt to plaintiff had been paid.
    Appeal from judgment of the New York superior court, general term, reversing judgment entered upon verdict of jury.

      H. E. Losey, for app’lt; Chas. E. Hughes, for resp’t.

       Reversing 25 N. Y. State Rep., 359

   Andrews, J.

The endorsement and transfer by the defendant to the plaintiff of the check of Woodruff operated as provisional payment only of so much of the antecedent debt owing by the defendant to the plaintiff. There was no agreement that it should be taken in absolute satisfaction of the debt, and in the absence of such an agreement the intendment of law is that it was conditional payment only. Hill v. Beebe, 13 N. Y., 566; Bradford v. Fox, 38 id, 289.

The debt remained until discharged by payment of the check or by such dealing with the check by the plaintiff as would, in judgment of law, convert what was originally a provisional payment into an absolute one. The check was dated August 22,1887, and was drawn on the Asbury Park National Bank, and was on the same day endorsed and delivered by the defendant to the plaintiff at the place where the bank was located. The plaintiff, on accepting the check, assumed, as between himself and the defendant, an obligation to present the same to the bank for payment within the time prescribed by the law merchant, that is to say, not later than the next day after its date, and if refused to protest the same and give notice of non-payment. Smith v. Janes, 20 Wend., 192. It was not presented until the 31st of August, nine days after it was received by the plaintiff. The defendant was, by such delay, discharged from liability as endorser of the check", irrespective of any question of loss or injury. Presentment in due time, as fixed by the law merchant, was a condition upon performance of which the liability of the defendant as endorser depended, and this delay was not excused although the drawer of the check had no funds, or was insolvent, or because presentment would have been unavailing as a means of procuring payment. Mohawk Bank v. Broderick, 10 Wend., 304; Gough v. Staats, 13 id., 549.

A different rule obtains as between the holder and drawer of a check. As between them presentment may be made at any time, and delay in presentment does not discharge the liability of the drawer, unless loss to him has resulted. Little v. Phenix Bank, 2 Hill, 425.

The action here is not upon the endorsement of the defendant, but upon the original indebtedness. If the discharge of the defendant’s liability as endorser discharges also his liability as debtor for the original debt, the judgment must on that ground be reversed. In Hamilton v. Cunningham, 2 Brock., 350, Chief Justice Marshall considered the effect of the neglect of the holder of a bill to give due notice of dishonor, whereby prior parties thereto were discharged, upon the liability of a debtor for the debt for which the bill was drawn. After showing that the authorities in which the debtor had been held discharged proceeded upon the theory that he had sustained an actual loss, reached the conclusion that the true principle is “ that if a bill be received as provisional payment the omission to give due notice of its dishonor deprives the creditor of his action on that bill, but does not compel him to take it in absolute payment or deprive him of his action on the original debt further than damage has been sustained actually or in legal supposition by the debtor.” See, also, Gallagher's Ex'rs v. Roberts, 2 Wash. C. C., 191; Fleig v. Sleet, 43 Ohio St., 53. I am not sure that this doctrine is reconcilable with expressions in the opinion of this court in Smith v. Miller, 43 N. Y., 171; S. C., 52 id., 545. That was an action to recover a debt for which the defendant had drawn his draft on J. K. Place & Co. and forwarded it to the plaintiff, the creditor. It was presented on the same day it was received to the drawees, and the plaintiffs received therefor the drawees’ check on a bank and surrendered the draft. The check was not presented to the bank until the next day, when payment was refused, the drawee meanwhile having failed. The check would have been paid if it had been presented on the day it was given, which might have been done. The plaintiffs did not demand a return of the draft and it was not protested, nor was any notice of non-payment given to the drawees. The court rendered judgment for the defendant on two grounds, first, that in the absence of proof of demand and refusal and notice to the drawees, according to the usual course, there could be no recovery upon the draft or upon the indebtedness upon which it was given, and second, on the ground of negligence in failing to present the check on the day on which it was given. The last ground stated was upon the facts a satisfactory basis for the judgment, and the same principle was applied upon similar facts in First National Bank v. Fourth Rational Bank, 77 N. Y., 320. In the view we take of the present case, it is unnecessaiy to inquire whether the cases cited from this and other courts are in conflict, or if so which class of cases stand upon the better reason. The court in this case directed a verdict for the plaintiff, and in this we think there was error. It can not be doubted that if there was evidence tending to show that the delay in presenting the check to the Asbury Park Bank prevented its collection, or from which the jury might find that the whole or any part of the debt owing by the drawer of the check to the defendant, for which the check was given, was lost by reason of the delay in the presentment or by dealings between the plaintiff and the drawer, in respect to the check, without the assent of the defendant, the case should have been submitted to the jury. To the extent of the injury the law would treat the omission to make due presentment as tantamount to payment

The facts most favorable to the defendant need to be stated. Woodruff, the maker of the check, was, when the check - was given, conducting a hotel at Asbury Park, and the parties to the action were, guests at his house. The defendant was indebted to the plaintiff for dentistry work, and the former, who resided in New York, had loaned money to Woodruff, for which the check was given, and on the same day the defendant received thejcheck he delivered it to the plaintiff on his debt. Woodruff had an account with the Asbury Park National Bank. On the day of the date of the check the bank charged to his account a demand note held by the bank against him for $500, but, so far as appears, without any notice to Woodruff, and this rendered his bank account overdrawn. Woodruff was in embarrassed circumstances, but was in the daily receipt of about $600 from his business. He used part of the receipts for current expenses, without depositing them, and between the 22d and 31st of August he deposited about $900 in the bank to the credit of his account, and the inference is that it was applied in part to pay the $500 note and in part to pay current checks drawn by W oodruff.

On the 22d of August, the day on which Woodruff’s check- to the defendant is dated, and after it had been endorsed to the plaintiff by the defendant, Woodruff, who had been informed of the transfer, requested the plaintiff to accommodate him by holdings the check a few days, stating as a reason that he was pressed in the payment of his accounts, to which request the plaintiff assented. He asked the plaintiff to let him know when he wished to use the check, as he would then proffer it. Woodruff testified that he had money in his office sufficient to pay the check, and would have paid it at any moment had payment been insisted upon; that he was in the receipt of about $600 a day, and that he redeemed a number of other checks which went to protest at this time; that two or three days after the conversation of the 22d of August he spoke to the plaintiff again, and the plaintiff informed him that he had sent the check west. Woodruff said to him that he regretted it very much, as he wished to make provision for the check. The cashier of the bank testified that there were no funds to meet the check, and that it would not have been paid if it had been presented any time after the 22d of August

On August 31, Woodruff, who was behind in his rent, was dispossessed from the hotel premises, and his business was closed, and he then was and now is insolvent. It may be conceded that the only obligation upon the plaintiff, as between him and the defendant, was to present the check at the bank for payment within the time prescribed by law, and if payment was refused to have the same protested, and notice of non-payment given to the defendant. If he had performed this duty, the defendant would have been apprised of the default, and he would have had an opportunity to take such measures as he could to secure payment from Woodruff. One of the objects of requiring prompt notice to be given to endorsers and other parties secondarily liable on commercial paper, in case of default, is that they may have an opportunity to secure themselves. Checks are supposed to be drawn against funds of the drawer, and prima facie where it is shown that the drawer’s account was not good, the inference of injury from non-presentment would be rebutted.

But where, as in this case, it is shown that the maker of the check was solicitous that it should be paid, that he had the means of payment at command, and would have provided for or paid the check if payment had been insisted upon, that the holder was apprised of the facts, and for the accommodation of the maker refrained from presenting the check, and presentation was delayed until open insolvency of the maker occurred and he became, by the change of circumstances, unable to provide for the check, it cannot be said, we think, that there was no legal evidence of injury to be submitted to the jury.

The plaintiff, instead of taking the usual course, undertook to deal with the maker of the check in disregard of his primary obligation to the defendant. It was for the jury to pass upon the circumstances and to find whether the conduct of the plaintiff imposed a pecuniary injury upon the defendant. To the extent of such injury the. law adjudges that the debt of the plaintiff has been paid.

The judgment below should be reversed and a new trial granted, with costs to abide the event.

All concur.


source: Caselaw Access Project

author: Earl, J.

license: Public Domain

text:
    Andrew Moylan, Resp’t, v. The Second Avenue R. R. Co., App’lt.

      (Court of Appeals,

      Filed June 2, 1891.)

    1. Negligence—Contributory—Passenger boarding moving street car.
    It is not careless for a young man in good health to attempt to board an open car while it is slowly moving, hut where he is injured in so doing by striking in about a second against a truck at the side of the car, no negligence can be attributed to the railroad company because it did not stop the car for the plaintiff.
    3. Same.
    It is the duty of the young man to see for himself that there is no obstacle in his immediate presence outside,of the car and the railway track which made it dangerous for him to attempt to enter the moving car.

      Appeal from judgnient of the supreme court, general term, ' second department.

      Aug. S. Hutchins, for app’lt; Fred'k S. Massey, for resp’t.

       Affirming 35 N. Y. State Rep., 644.

   Earl, J.

The plaintiff was injured in June, 1890, while getting upon one of the defendant’s cars in the city of New York, and. he brought, this action to recover damages for his injuries, alleging that they were caused by negligence attributable to the defendant. Upon the trial he was the sole witness to prove how the injuries were caused, and upon that point his evidence upon direct examination was as follows: I waited for the car; I saw the car coming; an open car; I waived my finger and heard the whistle blow to stop the car; the car slacked; I stepped on the crosswalk and waited for the car; but the car never stopped ; it nearly stopped; I waited for the centre of the car and put my foot on the step and took hold of the stanchion, and I heard the whistle blow and the horses went faster, very fast, and I was struck by a truck the other side before I had time to go in the car; the car started and the truck was in the street; the portion of my body which was not in the car struck an empty truck to which horses were attached.”

Upon his cross-examination he testified as follows: I struck the hub of the truck in about a second after the car started with me; the car was moving at the time, but had nearly stopped; I was struck about six or seven feet from the crossing where I got on.”

The defendant called but one witness to the accident, a passenger in the car. His evidence was in the main like that of the plaintiff’s. He testified that the plaintiff got upon the side board about the middle of the car while the car was moving slowly, and before he got into the car, about six or eight feet from where he got on, the hub of the hind wheel of the truck struck his foot, and the car stopped about the middle of the truck. He did not observe that the speed of the .car was accelerated after the plaintiff got on.

The plaintiff was a young man twenty-six years old, in good health, and at the time of the accident unincumbered.

Upon these facts we think the plaintiff should have been non-suited. It is impossible for us to perceive wherein the defendant was guilty of negligence, or if it was guilty, wherein it was more guilty than the plaintiff. It was not careless for the plaintiff to attempt to enter the car while it was slowly moving. Thousands Of young men get on and off streets cars daily, and are permitted to do so in perfect safety. No negligence can, therefore, be imputed to the defendant merely because it did not stop the car for the plaintiff. But for the truck in the street he would have entered the car in safety, and would have been uninjured. The sole question, therefore, is whether the defendant ought to have guarded the plaintiff against injury from the truck in the street near its track. It was not bound to know that the truck was temporarily there so close to its track that there was danger that a person attempting to get into one of its cars might be injured by collision therewith. There was no evidence that the driver or conductor of the car saw the track, or perceived the danger, and it does not even appear that the conductor was in a position to see the truck. The plaintiff when he attempted to get upon the car was probably nearer the truck than the conductor was, and he had a better op.portunity to see the truck than the conductor had, as it was on the same side of the car with him, near him, in plain sight, in fact in his immediate presence. If the conductor was careless in not seeing it, he was more careless. If the conductor was bound to guard him against the danger, so he was also bound to care for himself. It was his duty to see for himself that there was no obstacle in his immediate presence, outside of the car and the railway track, which made it dangerous for him to attempt to enter the moving car.

It cannot be claimed upon the evidence that the defendant caused the accident by any undue acceleration of the speed of the car. The car was moving slowly and had nearly stopped when he stepped upon it, and in about one second, and before the car had gone eight feet, he struck the truck. It is utterly impossible that the car could have greatly increased its speed in that short space of time and that limited distance.

The injuries to the plaintiff, therefore, seem to have been the result of an accident. But if it was due to any negligence, it was due more to his own negligence than that of the defendant.

The judgment should be reversed, and a new trial granted, costs to abide the event

All concur, except O’Brien, J., not voting.


author: Per Curiam.

text:
    Blake & Johnson, Resp’ts, v. Stephen R. Krom, App’lt.

      (Court of Appeals,

      Filed June 2, 1891.)

    Appeal—Court op appeals.
    In an action upon certain promissory notes defendant interposed two counterclaims, one for $82.42 for per centages on manufacture of parts of machines, the other for $1,471.17 for violation by plaintiffs of their agreement not to manufacture certain machines from defendant's patterns, except for him. Held, that even if plaintiffs made another machine, not ordered by him, what he lost thereby was merely the profit, about $328.33, and there being no interest to add to unliquidated damages, his claim would not amount to $500, and he could not upon this appeal claim that his demand was larger than that stated in the pleading.
    Appeal from judgment of the New York superior court, general term, affirming judgment for plaintiff for §1,532.71, entered upon a verdict directed by the court.

      Herbert T. Ketcham, for app’lt; M. H. Cardozo, for resp’ts.

       See 36 N. Y State Rep., 83.

   Per Curiam.

The action was brought upon certain promissory notes of the defendant, and the indebtedness thus evidenced is admitted. But the defendant interposed two counterclaims; one for the sum of $82.42 for percentages or commissions upon the manufacture of parts of machines, and the other for $1,471.17 ■damages for the violation by plaintiffs of their agreement not to manufacture certain machines from defendant’s patterns, except for him or upon his order. The evidence is very slight upon which to charge the plaintiffs with any liability or with a violation of their agreement. Whether the trial court was right in refusing to submit the case to the jury and in directing the verdict for the plaintiffs is a question, however, which we shall not review. The amount in controversy, arising out of these counterclaims, falls below the sum of $500. This appears from the evidence, and we have the right to refer to it, as well as the pleadings, in order to ascertain that fact. Assuming that the plaintiffs made another machine, which was not ordered by defendant and did not pass through his hands, what he lost thereby was the profits, which would have been his upon a sale by him. That profit, according to his proofs, would have been $323.33, and that represents the extent of the damage recoverable. He cannot claim to include the royalties, or their incidental advantages, accruing to him from a sale of his patented machine.

Such a claim would remain his as against the parties who purchased from the manufacturer. All that plaintiffs could have damaged him by selling the machine directly to others, upon the evidence, would be in the amount of the profit which he could have derived from the sale of the machine had it passed through his hands. The amount of damages thus established under this counterclaim added to the previous counterclaim would not amount to $500; even if to the first counterclaim there be added interest upon it, which is not demanded. The second counterclaim being for unliquidated damages, would not carry interest upon a recovery. As the defendant claimed, under his first counterclaim, a" liability to him from the plaintiffs, fixed at a certain sum under the contract, and did not move to amend, or to increase the claim, he cannot be heard upon this appeal to claim that his demand was larger than stated in the pleading.

The appeal should be dismissed, with costs to the respondent.

All concur.


text:
    The Phenix Insurance Co., Resp’t, v. William H. Parsons, Survivor, App’lt.

      (New York Superior Court, General Term,

      Filed March 2, 1891.)

    1. Insurance (Marine)—Construction of policy.
    A clause in a cargo policy providing that freight and advances insured under this policy are subject to the terms and conditions of freight policy attached hereto, does not imply that insurance of advances are not subject to the terms of the cargo policy.

      2. Same—Warranty.
    On payment of a marine policy to defendant’s firm, to cover advances made for the owners of a vessel, said firm assigned to the company its claim against the owners to the extent of $1,500, Ihe amount of the insurance, which in fact comprised its commissions on charter and expenses of insurance. In an action to recover the sum paid after failure to recover of the owners, Held, that there was an implied warranty that the claims assigned amounted to $1,500, and that defendant could not object to said commissions and expenses being included in the recovery against him.

      3. Same—Costs in action against ownebs mat be becotebed.
    In such action the costs of the action against the owners may be recovered, although defendant was not notified of the action, but counsel fees are not recoverable.
    Appeal from judgment in favor of plaintiff entered upon verdict of jury as directed by the court.
    Action to recover money paid to defendant’s firm on a marine policy covering advances made by defendant’s firm for the owners of a vessel. The facts sufficiently appear in the opinion on the former appeal. 56 Supr. Ct., 423 ; 211ST. Y. State Rep., 909.

      W. W. Goodrich, for app’lt; George A. Black, for resp’t.
   Per Curiam.

The issues in this action have been passed upon heretofore as reported, 56 Super. Ct., 423; 21 N. Y. State Rep., 909. The learned counsel for appellant argues that there are in the present case differences from the former case which call for another result.

He adverts to the fact that on the former trial it did not appear, as it does now, that the policy on which the insurance for advances was made, called the cargo policy, was accompanied by a policy called the freight policy. The freight policy does not contain a special clause upon which, the counsel argues, the former decision is based and the cargo policy contained the following clause: “It is understood that freight and advances insured under this policy are subject to the terms and conditions of freight policy attached hereto.” This does not imply that insurance of advances are not subject to the terms of the cargo policy which insures the advances. And the implied right of the plaintiff to be subrogated to the defendant’s claim against the owners for the re-imbursement of advances would secure the same result in this action as has been placed before upon the special clause.

On the trial the counsellor defendant objected to there being included in the recovery as being part of defendant’s claim against the owner and yet not being advances, which was the thing insured, certain commissions on charter and expense of .insuring advances. The objection was correctly overruled, for by the assignment of the claims to the plaintiff there was an implied warranty that the claims amounted to $1,500, which in fact com-prized the commission and expense of insurance.

Against the objection of defendant the court allowed a recovery for the amount of certain expenses incurred by plaintiff in connection with a litigation for the recovery against the owners of the claims for advances. The matter involved was not much discussed in the argument of the appeal.

The plaintiff was not entitled to recover for services of counsel the charge of $250. Sedgwick on Dam., 292, note 2.

The costs of the action were rightly recovered. Although the defendant did not have notice of the action, the costs were an actual and definite expense to which the plaintiffs were subjected by acting upon the defendant’s warranty. Armstrong v. Percy, 5 Wend., 535. These costs amounted to $36.05.

There was not sufficient proof to justify the recovery of $8.37 for type-writing and. copies of brief.

The judgment should be modified by deducting the amounts that have been specified, and, as modified, affirmed, without costs to either party.

Sedgwick, Oh. J., and Truax, J., concur.


text:
    Charles R. Johnson, Pl’ff, v. The Union Switch & Signal Co., Deft.

      (New York Superior Court, General Term,

      Filed March 2, 1891.)

    1. Contract—Construction—Termination.
    A contract between the parties hereto provided that plaintiff should be the general manager of defendant, and assign to it the exclusive right to use all his inventions; that the contract should continue for a period of ten years, subject to termination by either party by one year’s notice in writing after the second year, or by the death or inability of plaintiff. By the 8th clause it was provided that, on the termination of the agreement, said company (by reason of the expenditures that shall have been made during the continuance of this agreement) shall have a license (not exclusive) to use all the inventions that may have been used by it, on payment of $6,500 a year, payable quarterly. In 'an action for an instalment of the sum last mentioned, Held, that a discharge of the plaintiff did not terminate the agreement within the meaning of the 8th clause, and that" plaintiff was not entitled to recover.
    3. Same.
    In such case, if defendant thereafter used the inventions, plaintiff would be entitled to the value of that use.
    3. Same—Bes adjudicata.
    A judgment against the defendant for a quarterly payment recovered by an assignee of the plaintiff is not admissible as a final adjudication as to the liability; of defendant under the 8th clause, as the parties are not the same, and plaintiff is not estopped by the former judgment.
    4. Same—Promise made by president op corporation,
    A promise made by the president of the defendant on such discharge that the royalty would be paid is not binding on the defendant in the absence of proof that he was authorized to make it or to put a construction on the contract.
    Exceptions ordered to be heard in the first instance at general term, the complaint having been dismissed.

      George N. Miller, for pl’ff; John W. Houston, for def’t.
   Per Curiam.

The action was a written contract between the parties to the action. It provided, 1st, that plaintiff be made general manager of the defendant; 2d, that he receive $5,000 each year as salary; 3rd, that he thereby granted, sold and conveyed to the said company, except as thereinafter provided, the exclusive right to the use of all the inventions of the plaintiff relating to the signal business that he then had or might thereafter acquire, and also the right to use certain inventions designated; 4th, that the company pay for the use of the inventions $3,000 each year in quarterly payments; 5th, that one Henry Johnson be employed; 6th, that the plaintiff in addition to the other compensations to him receive ten per cent of net profits.

7th. It is mutually agreed that this contract shall continue for a period of ten years, subject to termination by either party, however, by one year’s notice in writing to the other party at any time after the second year or by the death of Charles R. Johnson or by his permanent inability to perform his duties as general manager.

8th. It is further mutually covenanted and agreed that in the event of the termination of this agreement, the said company (by reason of the expenditures that shall have been made during the continuance of this agreement) shall have a license (not exclusive) to use all of the inventions that may have been used in carrying on the business of the company, on the payment of $6,500 per year; said sum to'be paid quarterly ; and shall be entitled to purchase from Charles R. Johnson or his executors the exclusive right to use all of the said inventions upon as favorable terms as he or his executors may be willing to grant to any other parties.

9th. That the agreement shall take effect from June 1, 1886; and,

10th. That in the event of the business of the company being terminated by circumstances over which its officers have no control, the contract should be null and void, and the license to use the inventions referred to, should cease, and all rights therein should revert to the plaintiff.

The action was for a quarterly payment under the eighth section of the contract. The plaintiff claimed that there had been a termination of the contract, within the meaning of that section caused by a breach of the contract on defendant’s part in discharging, without cause, the plaintiff from its service. The defendant took the position that the termination meant was such as had been provided for in the earlier part of the contract in its 7th section.

If there were no break between the sections and the word eighth omitted, by reading the two sections together as if they were one, it would be clear that the words continue and terminate of the early part of the section referred to the same condition that is indicated by the words termination and continuance of the later part of the section. There was no necessity of using “ said ” or aforesaid.” The words having been once used, and nothing intervening to indicate a purpose to change the meaning, a repetition of the words is a repetition of the meaning.

The construction of the plaintiff involves the following reading : That in the event of a breach of this agreement, by the company, the company shall have a license (not exclusive) to use, etc. A contract should not be construed so as so provide m its executory aspects for bringing about its breach, if it be possible to avoid such a construction. Such a construction would involve the idea, that by the 8th section the plaintiff intended to offer to the defendant a motive to discharge him.

The 8th section, in its provisions, shows what was meant in the use of the words “ termination of this agreement.” Immediately after these words is the clause in parenthesis “ (by reason of the expenditures that shall have been made during the continuanee of this agreement)” The termination was to be at the end of the intended continuance. The expenditures were such as would be made through ten years, or if notice were given through three years. Such was the consideration to the plaintiff for making the license. If his discharge would make the provision operative, then it might be a discharge at the end of a day’s service as well as the end of a year’s service, as well when a few dollars had been expended, as when several hundred dollars had been. At the end of a day’s service many inventions might have been used for the business of the company or only one. If a breach by discharge terminated the contract then by the 8th section if the defendants used that one invention they would be bound to pay $6,500 a year, which was intended by the parties to be the compensation for the use of all inventions that might be employed in the company’s business through ten years.

There appearing to be no reason for the use of the word termination in the 8th section in any other sense than that of the words continue and terminate in the 7th section, it must be held that a breach of the contract by the defendant did not terminate the contract within the meaning of the 8th section.

It does not follow from this, that if it used, as the complaint avers it did, after plaintiff’s discharge, the inventions of plaintiff that had been used in the business, the plaintiff will be deprived of a valuable property right without compensation, for , the defendant is liable for the value of that use.

The answer, taking all its averments together, does not admit that there was a termination of the contract as provided for in the 8th section.

It is claimed that a judgment-roll offered by plaintiff was improperly excluded. It was in an action against this defendant brought by one Miller as the assignee of the present plaintiff of a quarterly payment under § 8. In that action Miller recovered. It is urged that the judgment was a final adjudication, as to the parties to this action, of the issue of whether the present defendant was liable under § 8.

The fact that the action was not between the same parties is a valid objection to the judgment-roll as evidence, unless the objection is obviated by considerations growing out of the rules of estoppel. It is said that the parties to this action are in privity with the parties to the former action. Of course there is no privity so far as the defendant is concerned, because it was a party. As to the present plaintiff being in privity with the former it could rest only on their relation as assignor and assignee. While there may be a privity of estate or of title, there is none as respects the judgment in favor of the present plaintiff. If there were it would bind them mutually to the estoppel growing out of the relation and if the plaintiff of the former action had been defeated, as to a single quarterly payment under the contract, the present plaintiff would be bound by it, and would have no action against the defendant for the other instalments. But the present plaintiff is not bound by the estoppel, because he did not gain his interest after the so-called estoppel came into existence. In no sense did the plaintiff of the former action represent the present plaintiff. Mor is the present defendant in the position of one who takes a right burdened with what will constitute an estoppel, for all its rights as presented in this action were in existence prior to the judgment. The defendant is not estopped by the judgment inasmuch as it does not claim through one who is estopped by it. 2 Smith’s L. C., 664-665; Carver v. Jackson, 4 Peters, 83; Campbell v. Hall, 16 N. Y., 575.

The judgment roll was correctly excluded.

Certain pleadings in actions between the present parties were given in evidence. It is urged by the plaintiff that as in them the defendants admitted and averred a “ wrongful termination of the contract ” that was an admission of the termination, which put in operation the provisions of the eighth section. This, however, is opposed to the views that have been expressed as to the construction of that section.

At the time that the plaintiff was discharged by the president of the company, the plaintiff said to him: “Of course you will pay me the $6,500 a year royalty?” and was answered: “Yes, oh, yes; we shall pay the royalties." There was no evidence that the president was authorized by the company to make this promise for it or to put a construction upon the contract that had been made.

The exceptions are overruled, and judgment ordered for defendants upon the direction that complaint be dismissed, with costs.

Sedgwick, Ch. J., and Truax, J., concur.


author: Truax, J.

text:
    Herman S. Mendelson, Resp’t, v. Lucius T. Sheffield, App’lt.

      (New York Superior Court, General Term,

      Filed March 2, 1891.)

    1. Bills akd rotes—Evidence.
    In an action upon a promissory note, brought by an endorsee thereof, where the defense is that it was procured from the maker' by fraudulent representations, it is not error to exclude a question put to the payee as a witness whether he had any of the notes against defendant except the one in suit, as such question is immaterial and does not tend to show that the note in suit was procured by. false representations.
    3. Same—Fraud—Burder of proof.
    Where the only evidence that the note was procured by fraud is the testimony of the defendant himself, the plaintiff is not bound to prove that he had no notice or knowledge of the fraud, but it is a question for the jury as to how much or what credence should be given to the defendant’s testimony.
    Appeal from a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial.
    The action was brought to recover on three promissory notes made by the defendant to the order of one H A. Parr, and by said Parr endorsed and delivered after maturity to the plaintiff.
    The answer set up as a defence that the notes were obtained by said Parr from the defendant by means of certain false and fraudulent representations.

      W. D. Edmonds, for app’lt; Fullerton & Rushmore, for resp’t.
   Truax, J.

The case is so poorly prepared that it is difficult to tell what exceptions were taken by the appellant. It contains exceptions taken by the plaintiff, exceptions by the defendant, and “ exceptions.”

It was not error for the trial judge to sustain the objection to • the question asked the witness Parr: “.Have you any of the notes against him (the defendant) except those that are in suit?” The question was immaterial and neither showed nor tended to show that the notes in suit were obtained by means of false and fraudulent representations.

The defendant was put on the stand and testified that “ he (Parr) always reported that he was trying to do all he could but he never got any evidence. I believe implicitly that he was doing all he could.”

This was stricken out, and the defendant excepted.

I infer that the last sentence is that portion of the answer that was stricken out, because the first sentence is responsive to the question that was asked while the last is not. It was rightly stricken -out also because the belief of the defendant was immaterial.

The next alleged error to which our attention has been called is the ruling of the court in sustaining an objection to the question asked the defendant: “ Tell me as far as you can recollect, what statements were made to you during this period by Dr. Parr in reference to the services which he was rendering under this sixty dollars a week arrangement ?”

It is true that this question was ruled out, but subsequently the witness was asked: “ I don’t want your belief, but what he said to you; the substance of it,’’and this was allowed and the witness gave the statements that were made to him by Dr. Parr.

Certain conclusions and statements made by the defendant, statements not responsive to questions asked, were stricken out, and the defendant excepted.

The rulings of the court were not erroneous. Many of the answers stricken out had nothing whatever to do with the case.

At the close of the case, the defendant moved to dismiss the complaint and for judgment, on the ground that the plaintiff had failed to adduce testimony sufficient to entitle him to a judgment, in view of the defendant's testimony.

The claim of the defendant is that he had adduced evidence showing that the notes in suit were obtained from him by fraud, and that plaintiff, being a subsequent transferee of these notes, was bound to prove that he had no notice or knowledge of the alleged -fraud. But even if the defendant had adduced evidence showing that the notes were obtained from him by fraud, this evidence was testimony given by himself, and as he was an interested witness, it still was a question for the jury to say how much or what credence they should give to his testimony.

I am also of the opinion that the testimony was not sufficient to warrant the jury in finding that the notes were obtained by fraud.

The defendant requested the court to charge: “ That the defendant having inserted into this case proof of fraud, the burden •of proof shifts, and is upon the plaintiff to overcome that testi.mony as to fraud.”

The court refused to charge except as it had already charged, ■and the defendant duly excepted.

The court had already, in substance, charged that if any of the anotes were obtained from the defendant by means of the false and fraudulent representations of the payee (Parr) they must find for the defendant as to the note or notes. This was as favorable for 'the defendant as he had a right to ask, and the court was not bound to go over it again, or to charge it in the exact words proposed by the defendant’s counsel.

Judgment and order appealed from are affirmed, with costs.

Sedgwick, Ch. J., concurs.


text:
    Pietro Altieri, Resp’t, v. Dore Lyon, App’lt.

      (New York Superior Court, General Term,

      Filed March 2, 1891.)

    1. Mechanics mens—Conveyance op premises.
    Defendant conveyed certain premises to one S., who was to erect buildings thereon for defendant, and who assumed a mortgage thereon and also gave one for balance of the purcbae price. Plaintiff contracted with 8. to do work on the buildings, and defendant agreed to see that he was paid. After plaintiff’s work was done S. conveyed the property through one H. to defendant in consideration of the surrender of a note and the giving up of the right to foreclose the mortgage. Held, that the transactions were valid and did not constitute a fraúd upon the rights of plaintiff.
    '3. Same—Laws 1885, chap. 343, § 15.
    The phrase “ judgment for such sum or sums as may appear to be due to him ” in § 15 of the act of 1885, refer to the sum or sums that may appear to be due the plaintiff from the person with whom he made the contract to perform labor or furnish materials,fand does not authorize a money judgment against other persons in these proceedings.
    Appeal by the defendant from a judgment entered in favor of the plaintiff upon the decision of the court at special term.
    The action was brought to foreclose a mechanic’s lien.

      Bartow S. Weeks, for app’lt; Thornall, Squires & Constant, for resp’t.
   Truax, J.

The complaint alleges that at a certain time” the defendant, Lyon, was the owner of certain premises ; that thereafter he transferred the said premises to one Smith upon the understanding and agreement that said Smith should immediately erect sixteen dwelling houses thereon for the said defendant Lyon; that such conveyance was made without legal eonsider- \ ation, and as a cover, and with the fraudulent purpose and intent on the part of the defendant Lyon to escape any personal liability on his part for the expense incurred for the improvement by said buildings of said premises for his benefit, and to hinder, delay and defraud the mechanics and laborers doing work and furnishing materials for said buildings. That thereupon and thereafter said Smith entered into a contract with the plaintiff to build the stone foundation walls of the said houses to be erected on said property, and that the defendant Lyon informed the plaintiff that he, said Lyon, had the money to build the houses, and that if he, the plaintiff, would enter into a contract with said Smith to build said stone foundation walls, he, Lyon, would pay or cause to be paid to the plaintiff every two weeks the amount then due him. for building the walls.

That in pursuance of said agreements the plaintiff did certain work, and that there is now due him the sum of $910.66, under said agreements.

That after the plaintiff had done said work Smith conveyed! the premises to one Hayden, who conveyed them to the defendant Lyon. That such transfers were made without consideration and were made for the purpose of hindering, delaying and defrauding the mechanics, laborers and material men who had furnished work and materials on said property, and to prevent the property being subject to any possible judgment liens against said Smith.

The answer was a general denial except that the conveyances from Lyon to Smith, from Smith to Hayden, and from Hayden to Lyon, were admitted.

The court at special term found as matter of fact that after the recording of the deed from Lyon to Smith, Lyon remained in actual possession of the property, and as matter of law, that notwithstanding the making and recording of the said deed the defendant Lyon remained the equitable and true owner of the premises therein described. It also found that the deeds from Smith to Hayden and from Hayden to Lyon were made without consideration, and that the transfers of the property by Smith to Hayden and Hayden to Lyon were a legal fraud upon the plaintiff and the other mechanics and material men who had performed work upon and furnished material for the buildings upon said property, and as matter of law that said conveyances from Smith to Hayden and from Hayden to the defendant Lyon were a legal fraud upon the plaintiff and the other mechanics and material men who had performed work upon and furnished material for the buildings upon the said property.

We do not think that the evidence warrants the findings of fact made at the special term. The transactions between Lyon and Smith were valid transactions. Under them Smith became the owner of the property, subject, however, to certain mortgages to Lyon, and to others. As such owner he had the right to dispose of the property.

There 'is no evidence to show that Lyon remained in the actual possession of the property. The evidence rather shows that Smith was in the possession of the property. If Lyon was on the property after the conveyance to Smith he was there for the purpose of protecting his own interest as mortgagee who was under a contract to advance money to Smith, the builder.

The evidence shows that Smith became unable to carry out his contract with Lyon to. erect certain buildings on said premises,, and that because of his said inability the mortgages to Lyon became due and Lyon had the right to foreclose these mortgages.

By an agreement between Smith and Lyon, and for a valuable consideration, namely, the giving up of a note of $1,500 made by Smith’s wife to Lyon, and also the giving up of the right to foreclose the said mortgages, Smith conveyed to Lyon, through Hayden, the said property.

There is no evidence to show that the property was worth any more than the amount that Lyon paid for it, and the judgment in favor of the plaintiff cannot stand unless it may be sustained upon a point which will be hereafter considered.

It was alleged in the complaint that Smith and Lyon, to protect and relieve the defendant Smith from any personal liability by reason of his having made any agreement about any work upon the said premises or materials therefor, entered into a written ■agreement whereby the defendant Lyon, for a good and valuable consideration, promised and agreed to and with the said Smith, that he would pay and hold said Smith harmless from the amount then due to the plaintiff. This was denied by the defendant.

The trial court found, in substance, as alleged in the complaint in this particular. It also found that by reason of the facts stated in the findings of fact and the filing of a notice, the plaintiff acquired a good and valid and sufficient lien against the said buildings and premises above described under the laws of the state of Hew York.

It may be that the agreement above referred to would authorize the court in holding that the defendant Lyon had agreed with Smith to pay the amount due the plaintiff, but we are of the ■opinion that such finding of fact did not, with the other findings of fact in reference to the filing of lien and so forth, warrant the conclusion of law that the plaintiff had acquired a lien.

The plaintiff contends that § 15 of chap. 342 of the Laws of 1885, which is to the effect that whenever in any action brought under the provisions of the said act any claimant shall fail for any reason to establish a valid lien, he may nevertheless recover therein judgment against the party or parties to the action for such sum or sums as may appear to be due to him and which he might recover in an action upon a contract against the said party or parties.

We are of the opinion that the phrase “ judgment for such sum or sums as may appear to be due to him ” refers to the sum or sums that may appear to be due to him from the person with whom he made the contract to perform labor or furnish materials. This person was not the defendant Lyon. Whether or not he has a cause of action against Lyon upon his promise contained in Exhibit Gr is not necessary for us to determine.

Certainly it would not be right, and we are of the opinion that it was not the intention of the legislature, to allow a person to bring an action to foreclose a mechanic’s lien, and then if he be defeated in that action to recover a money judgment for any sum that may be due on any contract between him and the defendant. It was rather the intention of the legislature to allow the mechanic or the furnisher of materials to recover a money judgment if his action to foreclose his lien was defeated by reason of any informality in the lien, or by reason of any neglect to enforce his lien within the time required by law.

The judgment is reversed and new trial ordered, with costs to the appellant to abide the event.

Sedgwick, Ch. J., and Dugro, J., concur.


author: Dugro, J.

text:
    W. H. Haydn Miller, App’lt, v. William H. Curtiss, Resp’t.

      (New York Superior Court, General Term,

      Filed March 2, 1891.)

    Fraud—Evidence.
    In an action to rescind a purchase of stock and to recover the sum paid thereon upon the ground that it was induced by false representations, there was evidence that defendant had falsely represented that the company’s business was prosperous, that he had no stock to sell, but would obtain some for plaintiff from-another person, and that in fact the stock sold to plaintiff was defendant’s stock. Held, that there was evidence from which the jury might find fraud, and that a dismissal of the complaint was error.
    Appeal from judgment dismissing the complaint, and from order denying motion for a new trial.
    Action-to recover the sum paid to defendant for certain stock, which plaintiff claimed he was induced to purchase'by the falso representations of defendant. He testified that defendant stated that the business of the company was hopeful; that no stock was. for sale, and he would not sell his, but could procure some from one Allen; that plaintiff took fifteen shares of such stock; that the business of the company was not prosperous; that there was stock for sale, and that the stock defendant delivered to him was. his own stock.

      Marshall P. Stafford, for app’lt; Leavitt & Keith, for resp’t.
   Dugro, J.

Appeal from a judgment and an order denying a motion for a new trial.

Plaintiff brought this action to recover the amount paid defendant for fifteen shares of the Stead Boiler Company. He claims to have been induced to purchase the stock by false and fraudulent statements of defendant upon which he relied.

' The dismissal of the complaint was error, for there was evidence in the case from which a jury could properly conclude that certain statements as to existing facts set forth in the complaint as; having been made by defendant were false, and made by the defendant with intent to deceive, and that the plaintiff was deceived by them and induced to purchase the stock in question. The existence of this evidence was sufficient to require the submission of the case to the jury.

An application of the law as stated in Conkey v. Bond, 36 N. Y., 427, to the facts of this case, requires for another and a different reason the disposition made of this appeal.

The judgment should be reversed, and a new trial ordered, with, costs to abide the event.

Sedgwick, Ch. J., and. Truax, J., concur.


author: Freedman, J.

text:
    The American Bank Note Co., Resp’t, v. The New York Elevated R. R. Co. et al., App’lts.

      (New York Superior Court, General Term,

      Filed March 3, 1891.)

    1. Railroad—Elevated—Prescription.
    A railroad corporation which constructs its road by virtue of a consent by the city that it may do so on condition that compensation be made to abutting owners must be presumed to have entered into the enjoyment of the privilege in subordination to the rights of such owners, and hence can not obtain a right by prescription to maintain and operate such road.
    2. Same—Operation oe road.
    The right of an abutting owner whose rights have not been acquired by condemnation to equitable relief does not arise solely from the unlawful appropriation of the street to the construction and maintenance of a railroad structure, but an action therefor may be maintained for compensation for damages arising from the operation of the road.
    3. Same—Erections made during operation oe road.
    It is no defense to an action for equitable relief against an elevated road that the plaintiff purchased the premises and erected a building thereon after the construction and commencement of the operation of the road, if in so doing he took precautions to avoid annoyance from the railroad as far as possible.
    4. Same—Corporations.
    A corporation in possession of the premises cannot recover as for loss of rental value, as a corporation cannot be subjected to personal inconvenience and discomfort, but can only recover for additional expense incurred.
    Appeal by defendants from judgment in favor of the plaintiff, entered upon the decision of a judge at special term.

      Edward C. James, for app’lts; Peckham & Tyler, for resp’t.
   Freedman, J.

This is an appeal from a judgment of the special term for injunctive relief, damages and costs. The action was brought for equitable relief against the maintenance and operation of an elevated railroad in front of plaintiff’s premises, consisting of Ros. 115 to 128 Greenwich street.

The defendants insist that, prior to the commencement of the action in 1888, they had gained a right by prescription to maintain and operate their elevated railroad in front of plaintiff’s premises.

The West Side & Yonkers Patent Bailway Company, to whose rights the defendants have succeeded, constructed its elevated railroad in Greenwich street, and in front of the premises in question, prior to July 1, 1868. The said railroad was a single track road, consisting of an iron superstructure and cross-ties supported upon iron columns set on the curb-stone line on the east side of Greenwich street, and operated by a cable. The said railroad was put in operation July 2, 1868, and its operation since that time underwent the following changes, viz.: April 20, 1871, steam dummies were substituted for cable power to draw the trains. April 20, 1871, to April 5, 1877, turn-outs were built at different periods. October, 1877, to June, 1878, the west side track was built June 2, 1878, the west side track was put in operation. Fall of 1879, to May 2, 1880, the east track was reconstructed.

Since June 2, 1878, the railroad has been operated by means of trains drawn by steam engines down one track and up the other, with the exception of the use of temporary turn-outs during the period of reconstructing the east track.

These facts being clearly insufficient to establish a user of the entire system for more than twenty years, the defendants have confined their claim of right by prescription to the east track and the structure upon which it rests.

As to those it is claimed that, notwithstanding the changes they have undergone, they, have been maintained substantially arid sufficiently continuously for more than twenty years before the commencement of the action; that thereby the defendant acquired the right to maintain them by prescription against the plaintiff; that the right to maintain the structure and the track having been acquired, they can operate the road in any manner or by any method authorized by the legislature; and that, therefore, it can make no difference that the road was operated by a cable until 1871, and that then steam engines were substituted.

A thorough analysis of the details of this claim, if it were necessary that it should be made, would give rise to quite a number of interesting questions upon which much has been said and written. But I do not deem it necessary. The answer to the entire claim is, that the defendants could not acquire a right by prescription as claimed.

Originally the theory of prescriptions was, that the right claimed must have been enjoyed beyond the period of the memory of man, which, for a long time in England, went back to the time of Richard I. But, to obviate the necessity of such an impossible proof, it became customary to rely upon the presumption of a deed having been given and of its having been lost, after showing an enjoyment for a sufficient length of time. The matter is regulated in England now by statute. In the United States grants of incorporated hereditaments are presumed upon proof of an adverse enjoyment which has been exclusive and uninterrupted for twenty years, or the period of time fixed by the respective statutes of the several states as the limitation in respect to lands themselves. In the state of ¡New York the limitation is twenty years. But to authorize the presumption of a grant, the enjoyment must not only-have been uninterrupted for the period of twenty years, but it must have been adverse, not by leave or favor, but under a claim and assertion of right, and with the knowledge and acquiescence of the owner. Parker v. Foote, 19 Wend., 309.

The defendants have lawful warrant from the public authorities to construct, and they have lawful warrant from the public authorities to maintain and operate their elevated railroad in and through Greenwich street, but only on condition that compensation be made to abutting owners. This proposition has been affirmed so many times that its verification by the citation of authorities would be a work of supererogation. The enjoyment by the defendants of so much of the street in question as they did take in front of plaintiff’s premises was, therefore, not adverse to the plaintiff and its predecessors in title, but under a license from the public authorities on condition that compensation be made, and the entry under this license must, therefore, be presumed to have been in subordination to the rights of the abutting owners. Upon this branch of the case the decision in Broiestedt v. The South Side R. R. Co. of Long Island, 55 N. Y., 220, is directly in point. The defendants, therefore, can no more sustain their claim of adverse enjoyment than a purchaser under a municipal tax lease can sustain a claim of adverse possession. As to the latter it is well settled that possession and claim under a municipal tax lease for over twenty years is not adverse to the claim of the owner in fee. Bedell v. Shaw, 59 N. Y., 46. The claim of the defendants to a right by prescription is, therefore, untenable, and that being so, no acquiescence by the plaintiff and its predecessors in title not constituting an equitable estoppel, as defined by the general term of the supreme court in the recent case of Knox v. The Metropolitan Elevated Railway Co., 36 N. Y. State Rep., 2, will bar the action. The evidence in this case wholly fails to establish such an estoppel.

Equally untenable is the claim of the defendants that the right of a plaintiff as an abutting owner to equitable relief against an elevated railroad arises, not from its operation, but solely from its unlawful appropriation of the street to the construction and maintenance of its structure.

It is difficult to perceive how a legal right can exist to use an illegal structure to its utmost capacity. Even a steam surface railroad, lawfully in existence and operation, may in fact be operated to an extent going so much beyond the ordinary and legitimate uses of the street as to involve an abridgment of the abutting owner’s easement in the street and to entitle him to a corresponding compensation. Greene v. N. Y. C. & H. R. R. R. Co., 65 How. Pr., 154. It is only when a steam surface railroad, having lawful public authority for the purpose, makes a reasonable use of a street for railroad purposes, without substantially changing its grade, so that the use is not exclusive in its nature, but leaves the passage across and through the street substantially free and unobstructed for the public use, that an abutting owner has no cause of action, and that is all that was decided in Fobes v. The Rome, Watertown & Ogdensburg R. R. Co., 121 N. Y., 505 ; 31 N. Y. State Rep., 828. As to the effects produced by the operation of an elevated railroad upon abutting property, the following is the latest position taken by the court of appeals. The precise question under consideration was the question of noise, but the remarks of Andrews, J., who delivered the opinion of the court on that occasion and in which all concurred except Earl, J., apply with equal force to every element of damage caused by an inconsistent and illegal street use. Judge Andrews says in Kane v. The Metropolitan Elevated R. R. Co., 34 N. Y. State Rep., 876, 885:

“ The court allowed the jury to consider the noise created by the trains of the defendant as an element of damage. If the defendant had the lawful right to operate its trains in the street, such inconvenience as might result to the plaintiff in the enjoyment of his property from the ordinary and usual operation of the defendant’s road would not, in the absence of negligence on its part, furnish a ground of action. But we held in the Lahr case that as to abutting owners having easements in the streets through which the road was constructed, whose rights had not been acquired by condemnation, the defendant was a trespasser. Upon general principles, therefore, it would seem that any consequential injury to the plaintiff’s property from the acts of the defendant while engaged in the unauthorized occupation and use of the street, was proper to be considered by the jury. In the Lahr case, Chief Judge Ruger, referring to this point, said: ‘Ho partial justification of the damage inflicted by an unlawful structure and its unlawful use can be predicated upon the circumstance that under other conditions, and through a lawful exercise of authority, some of the consequences complained of might have been produced without rendering their perpetrator liable for damages.’ See also opinion of Finch, J., ErucJcer’s case, 106 N. Y., 158; 8 N. Y. State Rep., 599.”

The next point raised by the defendants is that the plaintiff should not have any equitable relief because it voluntarily erected the building upon the premises in suit in the manner it did, after the construction and the commencement of the operation of the elevated railroad. The plaintiff has been for many years engaged in the business of bank note engraving and other engraving and printing in the city of Hew York. Up to the year 1884 the plaintiff conducted its business at Ho. 120 Broadway. In the year 1883 the plaintiff purchased ten lots lying between the two lines of the defendants’ railway in Trinity Place and Greenwich ■street, paying for them $360,000. At this time the lots were covered with warehouse buildings, three and four stories high, which had been used as a packing house, and afterwards as United States appraisers’ stores. The defendants’ elevated railroad had been in full operation on both sides of this property for some years prior to 1883, and the said operation has been continued since that time. The plaintiff’s president and its four vice-presidents had charge of the matter of selecting a site and erecting a building for the company’s business. They were all familiar with its business and they were likewise familiar with the character and operation of the elevated railroad. They selected this place between the two railroads, erected a building thereon at a cost of about $500,000, and brought into it all the machinery, apparatuses and processes used in their business. But in doing so they, and the architect employed by them, took precautionary measures to avoid, as far as possible, any annoyance from the existence and operation of the railroad. This the evidence fully establishes.

The case therefore falls within the principle laid down in Tallman v. The Metropolitan Elevated Railway Co., 121 N. Y., 119; 30 N. Y. State Rep., 491, where it was held that, while a plaintiff cannot be permitted to prove, or allowed to recover, damages which he might have sustained if he had put his lots to other uses than they were put to, or placed upon them other structures than were placed upon them, because such damages would be purely speculative and contingent, he is in no way prevented from putting his lots to any use to which he may wish to put them ; that he has the right, acting reasonably and not wantonly or rashly, to put upon them any structures which he may deem most to his advantage; and that, at any and all times, until the railway company acquires as against him the right to maintain and operate its road, he has the right to recover the diminished rental ■ value of his lots, just as they were, occasioned by the maintenance and operation of the road.

So in Campbell v. Seaman, 63 N. Y., 568, it was held that it did not affect plaintiffs’ right to an injunction that the brick yard complained of was used before plaintiffs purchased their land, and that the plaintiffs, in the immediate vicinity thereof, had built a costly mansion and had laid out their grounds and planted them with ornamental and useful trees and vines for their comfort and enjoyment. The court said: “ The fact that trees and vines are for ornament or luxury entitles them no less to the protection of the law. Every one has the right to surround himself with articles of luxury, and he will be no less protected than one who provides himself only with articles of necessity. The law will protect a flower or a vine as well as an oak.”

It is true that it was formerly the law that one who came voluntarily into a known and existing nuisance could not abate it or recover damages on account of it. But this has been modified to the extent that one who creates a nuisance cannot continue it even as against a new comer, unless he has gained by prescription the right to do so. This is because a continuance of the nuisance, or a repetition of it, is a new nuisance for which the new comer has his remedy. Campbell v. Seaman, 63 N. Y., 568.

This principle is applicable to the elevated railroads in the city of Hew York, for, although the consent of the public authorities obtained by them conditionally as hereinbefore stated prevents their being dealt with as a public nuisance, they are nevertheless a private nuisance to abutting property injured by them as long as compensation is withheld, and no promiscuous citation of authorities will ever make it otherwise. The acts of the defendants, in so far as they constitute an inconsistent and excessive street use, when considered in reference to abutting property, involved, in a certain aspect, a trespass from day to day upon such property; in another aspect they involve a taking of private property within the meaning of the constitutional provision requiring compensation to be made; and, in still another aspect, and especially when their combined effects are considered, they constitute a private or special nuisance to the abutting property injured. For the reasons stated the defendants can derive no benefit from the fact that the plaintiff erected the building upon the premises in suit after the construction and the commencement of the operation of the road. In Kenkele v. The Manhattan Railway Co., 55 Hun, 398 ; 29 N. Y. State Rep., 95, it was squarely held that the compensation to be made is to be determined as of the time of the trial, and that this is but a just result of the persistent neglect of the defendants to take the necessary measures provided by law for the acquisition of the easements necessary for the maintenance of their structure and the operation of their road.

Another point upon which the defendants laid great stress is that the trial judge allowed, as elements of damage, the cost of an electric light plant and running the .same, the cost of reflectors on the Greenwich street front of the buildings and for injury and expense in the use of plaintiff’s property, and interest on certain specific items. This raises a question as to the right rule of past damages in the case of a corporation in possession.

In the case of an individual owner who himself was the occupant of the premises, the true measure of damages is the loss of the rental value, provided it appears that the premises were rendered disagreeable and uncomfortable, but the recovery must he confined to the six years preceding the commencement of the action, together with the added damage to the time of the trial. This rule is inapplicable to a corporation in possession, because a corporation cannot be subjected to personal inconvenience and discomfort. Such a corporation, therefore, cannot recover as for loss of rental value, but only for additional expense incurred. Such a recovery is in lieu of and falls short of the amount recoverable by an individual owner, and is sanctioned by the decisions of Seventh Ward National Bank v. N. Y. Elevated R. R. Co., 53 N. Y. Supr. Ct., 412; Fifth National Bank v. N. Y. Elevated R. R. Co., 28 Fed. Rep., 231; Irving National Bank v. Manhattan Railway Co.; N. Y. National Exchange Bank v. Metropolitan Elevated R. R. Co., 53 N. Y. Supr. Ct., 511, and others. The items objected to in this case can be justified under the rule as laid down and as sanctioned by the cases cited.

All the remaining questions raised by the appellants have been determined either expressly or in principle by former decisions in similar cases and it is, therefore, not necessary to particularize concerning them or any of them. .

. There being no merit in any of the exceptions disclosed by the record, the judgment appealed from should be affirmed, with costs.

Sedgwick, Oh. J., concurs; Ingraham, J., concurs in result.


text:
    John Phillips, Resp’t, v. Frank M. Arguimbau, App’lt.

      (New York Superior Court, General Term,

      Filed March 3, 1891.)

    Bale—Contract.
    A contract for the sale of goods provided for payment by draft on defendant’s London bankers, which was not drawn. In an act on for the purchase price it was claimed that there was a subsequent oral'agreement by which defendant was to pay cash on arrival of the goods, but defendant positively denied the making of such agreement. Held, that a question for the jury was presented and that it was error to direct a verdict for the plaintiff.
    (Sedgwick, Ch. J., dissents.)

      Appeal from judgment in favor of the plaintiff entered upon a verdict directed by the court, and from two orders denying defendant’s motions for a new trial.

      Carter & Ledyard, for app’lt; Dill, Chandler & Seymour, for resp’t.
   Freedman, J.

As I read the complaint and the evidence given in support thereof, it appears upon plaintiff’s own showing that the contract upon which this action was brought contains no promise by the defendant to pay the price of the goods in cash on the arrival of the goods or of the bills of lading in New York, or on the delivery of the goods or of the bills of lading to him, but that the contract provided for payment by draft on defendant’s London bankers, drawn by Green & Whineray, and in no other way. To hold that the contract required the defendant to pay cash on the delivery' of the goods or of the documents therefor, would be equivalent to striking out of the contract the words “ Terms L. C. on London, thro’ Green & Whineray,” and to the making of a new contract between the parties.

At the trial the plaintiff seems to have been conscious of the difficulty, for- he sought to overcome it by proving, against the objection and exception of the defendant, that, upon the refusal of Green & Whineray to act as it was contemplated they should, it was orally agreed between the parties that the defendant should accept the goods on their arrival at New York and pay cash for them The evidence relating to such subsequent oral agreement, constituting as it did an important modification of the original contract, was only admissible in case the complaint was broad enough for the purpose. Of this I have grave doubt. But assuming that the complaint was sufficient, the defendant, under his answer, had the right to deny that such subsequent oral agreement was ever made, and he did deny it in positive terms. In that aspect the case presented a question of fact which should have been submitted to the jury, for the defendant moved for leave to go to the jury upon it and duly excepted to the denial of the motion.

As the conclusion already reached necessitates a new trial, it is unnecessary to consider the other questions raised by the exceptions. I cannot refrain, however, from saying that some of the evidence sought to be introduced by the defendant upon the cross-examination of plaintiff’s witnesses, and also as part of his own case, seems to have been erroneously excluded. But as this was probably due to the mistaken view adopted by the trial judge concerning the liability of the defendant under the original contract, and inasmuch as any error so committed can be readily obviated upon the new trial to be had in conformity with the views herein expressed, a discussion of these questions at the present time may well be omitted.

The judgment and orders appealed from should be reversed, and a new trial ordered, with costs to the appellant to abide the event

Ingraham, J., concurs; Sedgwick, Ch. J., dissents.


text:
    Peter Kearney, Resp’t, v. The Metropolitan Elevated Railway Co. et al., App’lts.

      (New York Superior Court, General Term,

      Filed March 3, 1891.)

    1. Railroad—Elevated—Findings.
    In an action against an elevated railroad, the court does not err in refusing to find, as a conclusion of law, that in computing the compensation to be made for the taking of plaintiff’s easements, defendants are entitled to have taken into consideration the benefits resulting to his premises and peculiar thereto from the operation of defendants’ railway. This is not a conclusion of law, but a mediate process in applying the rule of damages.
    3. Same—Damages.
    In estimating the loss of rental value, benefits are not to be deducted from the damages, but to be considered in ascertaining whether there were damages, and a finding of the actual loss is sufficient.
    3. Same—Easements.
    The easements of abutting owners are not confined to the portion of the street directly in front of their premises; and hence, evidence is admissible to show that plaintiff’s light was cut off by shadows cast by defendants’ station which was twenty-five feet distant therefrom.
    Appeal by defendant from judgment entered upon conclusions and findings at special term.

      Julien T. Davies and Brainard Tolles, for app’lts; Edwin M. Felt, for resp’t.
   Per Curiam.

This is an action for an injunction against the defendants maintaining their elevated road in front of plaintiff’s premises.

The learned counsel for appellant argues that the court below erred in refusing to make a conclusion of law that in computing the compensation to be made to plaintiff for the taking of his easements the defendants were entitled to have taken into consideration the benefits resulting to plaintiff’s premises and peculiar thereto from the operation of defendants’ railway.

This was not a conclusion of law. It was a mediate process in applying the rule of the measure of damage to ascertaining the damages. In the other findings the court found that the plaintiff sustained a loss in the rental value of the premises amounting to

. This means the loss on the whole of the building, that all parts of the building had been considered, such parts as to which there had been a loss of rental value and such parts as to which there had been an increase of rental value, and that taking all parts together there had been a loss. Benefits are not to be deducted from the damages, but to be considered in ascertaining whether there were damages. Newman v. M. E. B. Co., 118 N. Y., 627; 30 N. Y. State Bep., 36. The court there says, p. 625: “If the rental value of the whole building was shown to have been diminished there was injury for which plaintiff was entitled to recover, but if the diminished rental value of the upper floors was equal or overcome by increased rental value in the store, then there was no injury and no basis for a recovery of substantial damages against the defendants.”

The court below was bound to find the actual loss, and it did so.

It was also argued that the court erred in admitting testimony as to light being cut off from plaintiff’s premises, by shadows cast by the station of the defendant, which was not in front of the premises, and was on the avenue twenty-five feet south of them.

The ground taken is that the easements of the plaintiff are such as exist only directly in front of the premises and are a burden upon the part of the street directly in front and not to any extent on the street north or south. This does not seem to be coincident with the practical use of a street in tending to benefit property upon it. More light is thrown upon the house from the sides than immediately in front. The alternative would be that the street might be closed without compensation, provided the part immediately in front were not taken. There was no error in the admission of the testimony. In Kings Co. Fire Ins. Co., v. Stevens, 101 N. Y., 417, the court seems to hold that under the facts of that case the light or air or convenience of access was not in fact taken from the defendant’s property from the occupation by plaintiff of a part of a supposed street to the side of defendant’s property.

The other objections have been passed upon in other cases, and need not be stated here.

Judgment affirmed, with costs.

Sedgwick, Oh. J., Freedman and Ingraham, JJ., concur.


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    Mary Powers, Individually and as Ex’rx, Resp’t, v. The Manhattan R. Co., App’lt.

      (New York Superior Court, General Term,

      Filed March 3, 1891.)

    Tarties—Effect of order of court of appeals reviving cause.
    An order of the court of appeals reviving and continuing a cause in the name of the executrix of the plaintiff, who had died pending the appeal, is final between the patties and conclusive upon a new trial as to the capacity of the executrix to maintain the action.
    Appeal by defendant from judgment entered upon verdict of jury and from order denying motion for new trial made upon judgment

      Roger Foster, for resp’t; Julien T. Davies and Brainard Tolles, for app’lt.
   Per Curiam.

The action was begun by George I. Leslie, as plaintiff. He obtained judgment and the defendants after affirmAnee at general term, appealed to the court of appeals. The plaintiff died during the pendency of that appeal. On the application of the present plaintiff, the attorney who was the attorney of the former plaintiff moved in the court of appeals “ to revive and continue the cause in the name of Mary Powers individually and as executrix.” The motion was opposed by defendant’s attorney. The court ordered that the motion be granted “ and this -cause is revived and continued in the name of Mary Powers, etc., as plaintiff and respondent therein, in place and stead of said George I. Leslie.”

On the trial evidence was given as to the succession of the present plaintiff to the right of George I. Leslie. Ho attention will be given to this evidence excepting that part of it that consisted of the' order of the court of appeals already referred to.

On the trial the defendant’s counsel objected that Mary Powers had no capacity to maintain this action, never having been substituted as plaintiff in this court

This is contrary to the meaning of the order, plainly expressed!; and this order is final between the parties, on the assumption tha,. the court of appeals had power to make it. A different conclusion would not be valid,, for the court of appeals is the final judge-of its own jurisdiction. The adjudication between the parties is final. Smith v. Zalinski, 94 N. Y., 519.

It was necessarily involved in that adjudication that the plaintiff had succeeded to the rights of the former plaintiff. On the trial and the argument of the appeal, nothing was based upon the fact that the plaintiff sues on an original right as well as on one derived from the former plaintiff.

It is said that giving such an effect to the order deprives the defendants of the constitutional right to a trial by jury on the issue of whether the plaintiff succeeded to the rights of George I. Leslie. But the defendants have had a trial by jury, and on that trial any competent evidence of a former adjudication was admissible, and must have its legal qualities and conclusiveness recognized. So that the question is, whether the fact that at the time of the arguing of the motion in the court of appeals the defendants could maintain the position that their right to a jury trial prevented that court rightfully making any order excepting one of substitution for the purpose of determining the appeal. But the court has finally decided this by making the order as it was made. It does not appear that there was a demand for a jury trial as to the particular matter.

The other questions in the case have heretofore been passed upon, and the judgment and order are affirmed, with costs.

Sedgwick, Ch. J., Freedman and Ingraham, JJ., concur.


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    Mary J. Rosevelt, Resp’t, v. The Manhattan R. Co., App’lt.

      (New York Superior Court, General Term,

      Filed March 9, 1891.)

    1. Negligence—Evidence.
    In an action for injuries alleged to have been caused by defendant’s negligence, evidence of a physician that when he last examined plaintiff's arm she had persistent pain in it is not objectionable on the ground that it involves an assumption that there was pain at the present time.
    8. Same,
    Evidence as to the extent of injury to the car in which plaintiff was riding at the time of the collision has no relevancy to plaintiff’s injuries or the force of the collision, and is properly excluded.
    3. Same—Pleading.
    An allegation in the complaint that the injuries are permanent is not necessary to authorize the admission of evidence as to their permanency.

      Appeal from a judgment entered upon the verdict of.a jury in favor of the plaintiff for the sum of §2,480.95, damages and costs, and from an order denying defendant’s motion for a new trial.
    Action to recover damages for personal injuries to the plaintiff which it was alleged she received while a passenger on one of defendant’s trains on Third avenue, by reason of a train on the Thirty-fourth street branch line colliding with the one in which she was riding at the time of the accident

      William G. Bussey, for resp’t; Davies & Rapallo, for app’lt.
   Dugro, J.

This is an appeal from a judgment and an order •denying a motion for a new trial.

The action is for damages for personal injuries sustained in consequence of the negligence of the defendant. The injury alleged was, in part, of plaintiff’s arm. A physician who had attended the plaintiff testified in her behalf that when he ■ last examined her arm she had persistent pain on motion. Defendant’s request to strike out this testimony upon the ground that it involved the assumption that there was pain “ now ” was properly denied. A fair interpretation of the answer shows that it did not involve the assumption claimed. A question put on behalf of the plaintiff was: " You examined her (plaintiff) a few days ago, and she told you while you were examining her that she was suffering from pain in that arm ? ” This question was objected to upon the ground that the witness could not testify as to the plaintiff’s having pain, and upon the ground that it involved an assumption that there was pain “ at the present time.” The question was not objectionable upon the grounds stated. The answer was unobjectionable, except as not responsive.

A question as to the permanency of the injury was objected to ■as not having been alleged in the complaint. This objection was properly overruled, as there was no necessity for such an allegation in the complaint. Curtiss v. The Rochester & Syracuse R. R. Co., 20 Barb., 282; affirmed, 18 N. Y., 534.

The exclusion of defendant’s proffered evidence as to the extent •of the injury to the car in which the plaintiff was a passenger was proper, for the extent of the injury to the car, of itself, had no relevancy to the plaintiff’s injuries or the force of the collision described by the plaintiff.

" I have examined the other exceptions in the case and find none of value. The judgment and order should be affirmed.

Sedgwick, Oh. J., concurs.


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    Samuel S. Hart, App’lt, v. James W. Wilder et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed March 9, 1891.)

    Appeal—Judgment.
    A judgment will not be disturbed by the appellate court where the evidence was conflicting, and no errors appear to have been made in the admission or exclusion of evidence.
    Appeal from judgment in favor of defendants.

      Cephas Brainerd, Jr., for app’lt; Isaac S. Catlin, for resp’ts.
   Per Curiam.

The judgment of the trial judge was made under circumstances which afforded superior opportunities for the determination of questions of serious doubt upon conflicting evidence, and some deference should for this reason be accorded it The doubts raised by the evidence are such that this deference, though no more than is due, suffices to impel an affirmance of the judgment.

No errors appear to have been made in the admission or exclusion of evidence, and no request seems to have been made for an accounting other than as of a partnership.

The judgment should be affirmed, with costs.

Sedgwick, Ch. J., and Dugro, J., concur.


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    George Herold, Resp’t, v. The Metropolitan Elevated Railway Co. et al., App’lts.

      (New York Superior Court, General Term,

      Filed March 9, 1891.)

    1. Railroad—Elevated—Charge—Benefits.
    A refusal to find as conclusion of law that in estimating the damages to the rental and fee value of plaintiff’s premises caused by the interference of defendant’s railroad with plaintiff’s easements, benefits peculiar to said premises, which have arisen by the construction of said road, should betaken into consideration, is proper, especially where there is no finding-that there were peculiar benefits.
    2. Same.
    The existence of peculiar benefit and its value must be proved by witnesses credible to the tribunal, and cannot be presumed. It does not necessarily follow from the fact that there was no diminution in the rental value,‘but a steady increase, that the lessening of air and light and convenience had not a hurtful effect on the rental value.
    Appeal by defendants from judgment entered upon findings- and conclusions made at sq>ecial term.

      Davies & Rapallo, for app’lts; Charles Gibson Bennett, for resp’t.
   Per Curiam.

It is urged as a ground .of reversal by appellants that the court refused to find as a conclusion of law, “ that in estimating the damages to the rental and fee value of the plan-tiff’s premises caused by the interference of the defendants’ railroad station and structure and the operation of the trains with the easements of air, light and access appurtenant to the premise^, benefits peculiar to said premises which have arisen by the construction of the said road and the maintenance of the said passenger station at One Hundred and Eleventh street and Second avenue, as shown by the evidence, should be taken into consideration.” This was but an abstract proposition and equivalent to-asking that the court should find the law to be as stated in Newman v. M R. R. Co., 118 N. Y., 628; 30 N. Y. State Rep., 36, and other like cases. And further than this, the request would be inapplicable to the case, unless the court had found or should have found, in answer to a request, that there were peculiar benefits.

There were requests on this subject made by defendants. Some of them merely referred to what might be evidence on the subject of benefits and not the existence of the benefits, as inferred from the whole of the evidence. One such request was, “ The effect of the stations of the elevated is to increase the trade of shops in the immediate vicinity.”

The other requests which the court refused to find were like, these: 24. The proximity of the station, etc., is a peculiar benefit to the rental value of the store, etc. 25. The proximity of the station, etc., is a peculiar benefit and enhancement of the value of plaintiff’s premises.

The existence of the peculiar benefit is not to be presumed as i aatter of law. It is to be proved as matter of fact. A peculiar-benefit is to be discriminated from a general benefit, arising from general causes that may enhance the value of the particular premises in common with property in general It is to be shown by witnesses credible to the tribunal, and whose testimony is in itself reasonable and in consonance with probability. And, too, the amount of the value of the supposed benefit should be shown with reasonable, certainty and definiteness, to require the court to find that there was benefit, the value of which the defendants were entitled to be allowed. A benefit to a nominal amount only would not help the defendants in an assessment of the damages. The court was not in error in refusing to find as asked in these requests. The testimony did not call incontrovertibly for a different action, nor did the preponderance of testimony.

The appellant supposes that the testimony showed that after the railroad was established in front of the premises there was no diminution of the rental value, and on the contrary, a steady increase of it. From this, it does not follow -that lessening of air and light and of convenience of access had not a hurtful effect upon the rental value; the rents received might have been greater if the air were freer and purer, the light brighter and the access unincumbered. Such a case may make it difficult for the plaintiff to prove damages, but not impossible.

The finding of the court should be sustained.

Judgment affirmed, with costs.

Sedgwick, Ch. J., and Ddgro, J., concur.


author: Dykman, J.

text:
    George J. Axt et al., Resp’ts, v. John F. Shankey, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    Conversion—Title to personal property.
    Adam Axt being indebted for borrowed money and wages to plaintiffs, who were his sons and son-in-law, gave them a bill of sale of his business and machinery, which was filed in the clerk’s office, and they thereafter continued the business, employing Adam Axt at stipulated wages. _ In an action against the sheriff for conversion in levying upon and selling the machinery as the property of Adam Axt, the foregoing facts were shown, and Adam Axt disclaimed any intent to defraud creditors in making the transfer. Seld, that a judgment in favor of plaintiffs was warranted by the evidence.
    Appeal from judgment in favor of plaintiffs, entered on the report of a referee.

      This action was brought to recover damages from the defendant for an alleged wrongful levy and sale under an execution issued to him, as sheriff of Rockland county, upon a judgment recovered by John K. Kreig and others against one Adam Axt. The trial was had before a referee. The plaintiffs, who are two of the sons and a son-in-law of said Adam Axt, claimed to be the owners of the property levied upon and sold, by virtue of a bill of sale executed by said Adam Axt to them, dated November 12, 1888. The judgment upon which such execution was issued was recovered December 22, 1888 ; the execution was issued to the sheriff on January 28, 1889; the levy made on January 29th, and the sale made February 25, 1889.
    The evidence showed that the said Adam Axt, for a number of years previous to the 12th of November, 1888, had been in the business of manufacturing and selling shoes at New City, Rock-land county. That the property, for the taking of which this action is brought, had for a number of years belonged to. him and was used by him in his said business ; that for several years, immediately prior to that time, the plaintiffs had been working for him at stated wages, and that he was indebted to them, collectively, in the sum of about $3,000, and that he owed other parties debts at the same time, and was practically unable to pay all his debts in full and carry on his business. That a few days prior to the 12th day of November, 1888, Adam Axt and the plaintiffs entered into negotiations for the sale of said business and said property to the plaintiffs, in consideration of said collective debt due by him to them; that said sale was consummated on or about the 12th day of November, 1888, and that said Adam Axt thereupon delivered said property, etc., with a properly executed bill of sale, 'in writing, over to them, and that the plaintiffs, thereupon, took possession of the" property so sold, assumed the rent of the building in which said business was carried on, and have ever since paid such rent, carried on such business in their own name, have been the sole owners of said property, and had said Adam Axt in their employ, working for them in their said business at fixed and stipulated wages.
    These facts are not contradicted, but defendant introduced evidence to show that goods sometimes came addressed to Adam Axt, and that he promised to pay the freight bills.
    The referee found that plaintiffs purchased the goods in good faith and for a valuable consideration; that they were the lawful owners thereof, and that the taking and converting of the same by the defendant was unlawful, and directed judgment for plaintiffs.

      Geo. W. Weiant, for app’lt; Frank Comesky, for resp’ts.
   Dykman, J.

This is an action for the recovery of damages for the wrongful conversion of personal property. The defendant, as sheriff of Rockland county, seized the property in question, and sold the same as the property of Adam Axt, under an execution which he held against his property.

The levy and sale under the execution was made upon the theory that the property belonged to Adam Axt, the defendant in the execution, but the referee before whom, the action was tried has found against the defendant, and the testimony sustains the finding.

As there were no errors committed on the trial, the judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.


author: Barnard, P. J.

text:
    Stephen D. Barnes et al., Ex’rs, Resp’ts, v. Anna L. MacDonald, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    Money loaned—Proof of loan.
    In an action to recover money borrowed of plaintiff’s testatrix, the evidence as to a loan was conflicting, but it appeared that property conveyed to defendant’s husband and brother was paid for with checks of a firm of which testatrix’ husband was a member, given in return for money borrowed of her; that defendant, who was a daughter of testatrix, permitted her husband to act for her in respect to the purchase of the property, and had acknowledged that she made the loan and said she would repay the money. Held, that the evidence was sufficient to establish her liability, although her husband testified that the brother borrowed the money and gave him half.
    Appeal from judgment in favor of plaintiff, entered on the report of a referee.

      Samuel C. Mount, for app’lt; C. D. Van Name (A. B. Boardman, of counsel), for resp’ts.
   Barnard, P. J.

The complaint of the plaintiffs avers that on the 25th day of February, 1881, the defendant borrowed of the deceased $1,500. The defendant denies this fact. The trial of this issue exhibited great contradiction between the witnesses, not only upon the main issue, but also on collateral ones. Certain facts stood out clear around these contradictions, which go far to throw light upon the question of fact between the parties. On the 25th day of February, 1881, one Mary Cowan conveyed a piece of land in New Jersey, being a hotel property, to Stephen D. Barnes, a son of deceased, and John H. McDonald, the husband of defendant. The defendant was a daughter of deceased. The price of the land was $10,500. The mortgages on it were $7,500. These were assumed by the grantors and the balance, $3,000, was paid in cash. It is clearly proven that this $3,000 was paid by checks given by a firm in which Stephen D. Barnes, the husband of deceased, was a member. It was also proven that the $3,000 belonged to deceased. It had been in a savings bank in her name, and her husband had borrowed it of her for the purpose of building a vessel, and had returned the money to her by these checks.

The question is not very material as to the ownership, for the husband of deceased is proven to have recognized his wife’s title to the money. The title, as has been stated, was taken in the name of defendant’s husband. It was proven that she permitted her husband to act for her in respect to the purchase and the title was no doubt taken in his name at her request It was proven by several witnesses and on different occasions that the defendant acknowledged that she made the loan and that she would repay the money, and if she did make the loan herself the deceased had no responsibility as to the purpose for which it was to be and was used. The defendant on the trial denied the loan to her, and her husband testifies that he did not borrow the money but that Stephen D. Barnes borrowed all the money and gave him half. It is apparent, therefore, that the deceased made the loans; that it went to buy the house; that the title was taken to Stephen D. Barnes and defendant’s husband. It is not likely that Stephen D. Barnes gave the money to defendant’s husband, and it is not likely that the defendant’s mother gave the money to defendant’s husband. The referee, therefore, properly found that the defendant borrowed the money. This accords with the probabilities of the case, and with the direct testimony in support of the plaintiffs case. The exception to the exclusion of evidence tending to show that an attorney who was an adviser of plaintiff’s husband did not know of deceased having money in the firm which gave the checks, was immaterial. There was no doubt as to the checks being given and whether the husband of deceased gave them for his own money or his wife’s did not tend to release the defendant from repaying it if she borrowed it.

The exception that Mr. Van Buskirk testified to a conversation with Capt. Barnes in the absence of defendant seems to be based upon a mistaken fact. The witness testified: “I am sure that Anna McDonald was there at the time.” The appeal book does not show any error calling for a reversal and the judgment should therefore be affirmed, with costs.

Dykman and Pratt, JJ., concur.