text:
    Jacob Cohn, Resp’t, v. Frank E. Baldwin, Impleaded, etc., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 1893.)

    1. Bill of Particulars—Affidavit.
    In an application for a bill of particulars, the affidavit of the defendant, unless imposible to be obtained, should be procured.
    8. Same—When not granted.
    Where it appears that the demand of plaintiff, contained in the complaint,embraces all the dealings between the parties, and are all contained in the books of account and papers of defendant, a bill of particulars will not be granted.
    Appeal from an order denying a motion for a bill of particulars,

      Mills & Bridge, for app’lt; Mark Cohn, for resp’t
   Per Curiam.

We think the affidavit on which the motion for a bill of particulars was made, insufficient, being made by the attorney of one of the defendants. The only reason stated why the affidavit of the party was not obtained is as follows : That the reason why this affidavit is not made by said defendant is that said defendant is not a resident of or within the county of Albany, which is the county where deponent resides and has his office.” By the provisions of § 525, Code of Civil Procedure, a verification to a pleading may be made by the attorney of a party, when absent from the county where the attorney resides ; but that provision applies only to a verification of a pleading, and not to an affidavit made to procure a bill of particulars. In this case no sufficient reason is set forth why the defendant did not make the affidavit. For all that appears he may have been in another county of the state where his affidavit could be readily obtained. On such a motion the affidavit of the defendant unless impossible to be obtained should be procured. The affidavit of the attorney made herein does not show that defendant required any bill of particulars. See Gridley v. Gridley, 7 Civ. Pro., 215 ; Hoeninghaus v. Chaleyer, 22 St. Rep., 528; Blake v. Harrigan, 33 id., 210.

Again, plaintiff in his affidavit swears that the demand of plaintiff contained in the complaint embraced all the dealings between plaintiff and defendants and are all contained in the books of account and papers of defendants. That the only information in the possession of plaintiff as to the said bets and wagers is derived from statements furnished to him by the defendants. That it will not be possible for the plaintiff to furnish all the particulars required by the defendants unless the defendants are required to produce and deposit their books of account and papers containing the dealings between plaintiff and defendants in some proper and convenient place and permit the plaintiff or his attorney or some suitable person authorized by plaintiff to make an inspection of said books and papers and to make extracts of the entries therein.”

These statements made in the plaintiff’s affidavit are not denied. Such being the facts of the case a bill of particulars should not be ordered. Train v. Friedman, 4 Civ. Pro., 109 ; Isaac v. Wilisch, 69 Hun, 339; 53 St. Rep., 360; Fink v. Jetter, 38 Hun, 163 ; Wigand v. Dejonge, 18 id., 405.

The order should be affirmed, with costs and disbursements.

Mayham, P. J., concurs. Herrick, J-, not acting.


source: Caselaw Access Project

author: Putnam, J. Mayham, P. J., dissenting

license: Public Domain

text:
    George R. Newell, Resp’t, v. James H. Chapman, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    1. Damages—Fraud.
    In an action to recover damages for alleged false statements as to the value of a bond and mortgage, the measure of damages is the difference between the value of the bond and mortgage as they were, and the value, if the represenlions had proved true.
    2. Fraud—Essentials.
    To establish a cause of action for fraud, plaintiff is not only bound to show the fraudulent representations, but also that they were relied upon by him and induced him to take the bond and mortgage.
    3. Same.
    In such case, if the bond is a valid and collectible security, the defendant cannot be said to have made any false representations.
    4. Same.
    The fact that the defendant, who is a responsible party, made himself liable for the payment of the bond and mortgage on the transfer to plaintiff, tends to show the absence of fraudulent intent.
    5. Guaranty—Valid.
    Where the delivery of a deed is made in reliance upon the verbal guaranty, by the grantee, of the payment or collection of a mortgage received in part payment, such guaranty is valid and can be enforced.
    Appeal from a judgment for the plaintiff.

      Charles B. Patterson (J. W Houghton, of counsel), for app’lt; 1. F. Hamilton, for resp’t.
   Putnam, J.

The action was brought to recover damages for alleged false statements of defendant as to the value of a bond and mortgage relied on by plaintiff, and by which the latter was induced to take such security in part payment for a lot of real estate. In such an action the measure of damages is the difference between the value of the bond and mortgage as they were and the value if the representations made had turned out true. Vail v. Reynolds, 118 N. Y., 297 ; 28 St. Rep., 707. If the bond was of no value, and the mortgage a good security for the amount due, plaintiff sustained no damage. So if the real estate covered by the .mortgage was of insufficient value and the bond collectible, the transfer to plaintiff was of the bond and mortgage to secure a mortgage debt. If the payment of that debt was secured to plaintiff by either the bond or mortgage he sustained no damage. I am not satisfied after a careful examination of the case that any sufficient evidence was given on the trial to show that the bond could not be collected of its makers. Ro action had been commenced thereon, and it was not proved that Jane and Jerome Sullivan were irresponsible. The bond and mortgoge were transferred together as one security. The bond represented the debt and the mortgage being executed to secure the payment of the bond. If the bond was a valid and collectible security, defendant could not be said to have made any false representations, nor can plaintiff be deemed to have sustained any damage. I am inclined to think, therefore, that plaintiff should have shown that the makers of the bond were irresponsible.

Again, I think, the' court erred in refusing to charge as asked by the defendant in his fifteenth request, viz.: “ That if the plaintiff delivered his deed of the land relying upon the verbal guaranty of defendant, that he would guarantee the payment or collection of the mortgage, there was a present consideration and parting with property on the strength of the promise, and the guaranty or promise is valid and binding and can be enforced against defendant.’’ The court refused to so hold or charge, defendant excepting.

This guaranty of the defendant, under the circumstances, was not within the statute of frauds, and was binding on him. Brown v. Curtiss, 2 N. Y., 225; Cardell v. McNiel, 21 N. Y., 337; Milks v. Rich, 80 N. Y., 269 ; Allen v. Eighmie, 14 Hun, 559. To establish a cause of action against defendant plaintiff was not only bound to show the fraudulent representations but also that the representations were relied upon by the plaintiff and induced him to take the bond and mortgage. Arthur v. Griswold, 55 N. Y., 400-405.

■ In considering this question as to whether plaintiff relied on the alleged false representations of defendant or not, and whether or not he was induced by those representations to take the bond and mortgage, the jury should have been instructed that the defendant was liable on his verbal guaranty. The plaintiff testified that he understood the defendant was a man of responsibility. If the jury had been instructed, as requested by defendant, that his agreement to guarantee the mortgage was valid and made him responsible for its payment or collection, they could well have reached the conclusion that the plaintiff having a valid guaranty by a responsible man securing the payment of the bond and mortgage relied rather on that guaranty than upon the other representations of defendant as to the value of the security. I think also that the defendant was entitled to the instruction asked for on the question of his alleged fraud. The fact that the defendant, a responsible man, made himself liable for the payment of the bond and mortgage on its transfer to plaintiff, tends to show the absence of a fraudulent intent.

For these reasons I think the judgment should be reversed and a new trial granted, costs to abide the event.

Herrick, J., concurs; Mayham, P. J., dissenting.

Mayham, P. J., dissenting

This action was to recover damage for an alleged fraudulent representation of the defendant in negotiating the sale of a bond and real estate mortgage to the defendant.

To sustain this action the plaintiff was required to prove representation, falsity, scienter deception, and injury. Brackett v. Griswold., 112 N. Y., 467; 21 St. Rep., 791.

There must be sufficient evidence to support each of these affirmative propositions. We think the jury having found these propositions in favor of the plaintiff, that there is sufficient proof to sustain their verdict, It was the province of the jury to pass upon the conflicting evidence, and as there is some evidence to support each of the elements essential to a recovery in this action, the court should not set aside the verdict on the ground that it is wholly unsupported by evidence.

It was not error, therefore, for the trial judge to refuse to set aside the verdict on a motion for that purpose made upon the minutes at the trial.

The defendant failed to take exception to what he now insists were errors in the charge of the trial judge to the jury. If the direction of the judge in his charge was erroneous, it cannot be reviewed on appeal except upon exceptions, and a's no exceptions were taken we cannot review the charge or reverse, if the same was erroneous. It is true the defendant did except to what he claimed the judge charged, but the judge disclaimed making the statement excepted to, and we do not find the objectionable language in the charge.

On the whole case we see no error for which the judgment should be reversed.

Judgment affirmed with costs.


author: Putnam, J.

text:
    William S. Boland, Resp’t, v. Industrial Benefit Association, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    Insurance—Life—Wabbanty.
    The answers of an applicant, entered in the application, as to the name of the attending physician, the time his services were last required, and the diseases to which he was subject within a stated period, are warranties, which, if untrue, avoid the policy. 1
    Appeal from a judgment in favor of the plaintiff.

      William F. Beutler, for app’lt; O’Biren & Addington (George Addington, of counsel), for resp’t.
   Putnam, J.

In the application of deceased for insurance the following questions were asked and answers given: 22. “How long since you required the services of a physician ? ” (a) “ Four months." 23. “For what disease or trouble?" (a) “ Childbirth.” 24. “Give name and address of physician?” (a) “Dr. Joseph Lewi, corner of Trinity Place and Westerlo street, Albany, N. Y.” * * * 27. “ Have you had during the past five years, or are you subject to any of the following diseases,- or any not named herein ? ” * * * “Any bladder or kidney trouble? ” * * * “If yes, state fully?" (a) “None that I know of.”

The above answers made by deceased in her application should be deemed warranties, and if untrue, avoid the policy issued by defendant on which the action is brought. Such answers are not only warranties, but also to be regarded as material to the risk. Dwight et al. v. Germania Life Ins. Co., 103 N. Y., 341; 3 St. Rep., 115; Higbie Ex’r v. The Guardian Life Ins. Co., 53 N. Y., 603. Dr. Grravaline, who attended the deceased in her last illness, testified that within four months prior to the time of her application, on two occasions, he attended deceased for chronic cystitis, or inflammation of the bladder. If this statement of Dr. Grravaline’s is true, the policy on which the action is brought by its terms was null and void. The assured not only answered untruely as to being attended by Dr. Grravaline within four months, but also suppressed the fact that she was treated for a bladder difficulty, and that she had such a disease within five years. Dr. Grravaline testified that he was not in any way connected with defendant. He was the physician of deceased, who attended her in her last illness, and it was not suggested that he was not a disinterested witness or reputable physician.

After a careful review of the evidence we are unable to find that his testimony is in fact contradicted. All that the plaintiff testified to was that Dr. Grravaline did not attend his wife in August to his knowledge. But he stated that he was at work and absent a portion of the time. If the doctor had been there his wife, he thought, would have told him. He had no personal knowledge at all on the subject. Therefore the positive statement of Dr. Grravaline that he attended deceased twice within four months from the date of the application was not satisfactorily denied. The testimony of the plaintiff that he (plaintiff) did not see the doctor at his house, inasmuch as plaintiff was absent attending to his work a part of the time, is not inconsistent with the evidence given by the doctor. Nor does the statement of plaintiff that had the doctor been there in August his wife,he thought, would have told him have any force as evidence. The testimony of Dr. Grravaline that at the time mentioned he attended the deceased for a difficulty of the bladder is not contradicted. The fact that Dr. Allen, four months later, did not observe any symptoms of that disease is not inconsistent with Dr. Grravaline’s statement. Dr. Allen testified that there are no outward manifestations of chronic cystitis. That is a disease that requires an examination to detect. He did not examine her for that disease in December, and could not swear that she at that time had no symptoms of cystitis or that she had not had. He did not ask her any questions in reference to any of the symptoms of a bladder difficulty. This testimony of Dr. Allen’s cannot be deemed a contradiction of the evidence of a disinterested physician that four months prior to this introduction of Dr. Allen to deceased, he had attended her for a disease of the bladder.

The case discloses therefore the warranty as above set out; the positive statement of a reputable and disinterested witness,—the witness employed by deceased as her physician,—showing the falsity of her anwers, to the questions in the application constituting the warranty and no satisfactory contradiction of his testimony. It must be deemed established that Dr. Graveline visited the assured in A ugust, and that he treated her for a bladder difficulty. After a careful consideration of the testimony, we cannot resist the conclusion that such are the facts. At the most there was a mere scintilla of evidence tending to contract Dr. Gravaline’s statement. Such being the case, we think the trial judge should have directed a verdict for the defendant instead of submitting the case to the jury. Dwight et al. v. Germania Life Ins. Co., supra; Linkhoff et al v. Lombard et al., 137 N. Y., 417-426; 51 St. Rep., 63; Bulger v. Rosa, 119 N. Y., 459-464; 29 St. Rep., 678.

It is proper to say that we do not think plaintiff was concluded by the certificate of Dr. Gravaline annexed to the proof of death; also, we are of the opinion that the trial judge did not err in allowing plaintiff to prove his protest to the certificate of the doctor; but we hold that the evidence given on the trial shows that the certificate was true.

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

All concur.


text:
    Charles H. Armatage, Resp’t, v. Joseph Fisher et al., App’ts.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    1. Cebtiorari—When not to issue.
    A writ of certiorari cannot issue until the final determination of the body to whom the writ is directed.
    3. Quo warranto—When maintainable.
    An action in the nature of quo warranto cannot be maintained, where the object of the action is to prevent the removal of the plaintiff and the appointment of another person in his place.
    3. Common council—Rules.
    In the absence of any rule prohibiting such a course, the common council can, by a majority vote, adopt new rules, unless forbidden by statute.
    4. Same.
    The rules adopted by a legislature or municipal body cannot be deemed ordinances.
    5. Same—Removal of president.
    In order to empower the common council to remove its president, no rule.as to the course of procedure is necessary to be adopted prior to such removal.
    6. Same.
    The common council has power to remove its president, at least, for cause.
    7. Same.
    In the absence of any statutory prohibition, a majority vote is sufficient for this purpose.
    8. Pleading—Demurrer.
    An allegation in the complaint that “ certain rules of order in the common council were and have been in force ” is not admitted on demurrer.
    Appeal from an order granting an injunction.

      John A. Delehanty, for app’lts; Stedman, Thompson & Andrews {C.L. Stedman, of counsel), for resp’t.
   Putnam, J.

The plaintiff claims that the defendants as members of the common council of the city of Albany, on June 5, 1893, illegally altered rule 33 as previously adopted, and under said rule as so altered at the time the action was commenced in violation of law, were proceeding to remove the plaintiff from his office of president. An order was made granting a temporary injunction restraining the defendants during the pendency of the action from taking any steps toward removing the plaintiff from his said office, from which said order the appeal was taken.

It is conceded in the respondent’s brief that the object of the injunction was not to restrain the removal of the plaintiff as member of the common council, which under the statute and rules can be done, and only done, by a vote of two-thirds of the members of said council. The object is to prevent his removal as president, the defendants claiming that he can be so removed by a majority vote. It is alleged by appellant that plaintiff's remedy, if any, for the alleged violation of law by the defendants, is by writ of certiorari under the provisions of the Code of Civil Procedure. § 2140. This position would probably be well taken had the defendants at the time the action was commenced actually removed the plaintiff from his office. But a writ of certiorari cannot issue until the final determination of the body to whom the writ is directed. When the action was commenced, therefore, plaintiff could not have resorted to this remedy. Nor could the ' plaintiff have obtained relief by an action in the nature of a quo warranto. Plaintiff is yet president. No other person has been appointed in his place. This case is not like that of Johnston v. Carside, 20 N. Y. Supp., 327; 47 St. Rep., 526, and kindred cases. The object of the action is to prevent the removal of the plaintiff and the appointment of another person in his place. It is to prevent a state of affairs, which, if brought about, would probably render an .action in the nature of quo warranto proper.

If in this case the papers show that defendants, as members of the common council of the city of Albany, without authority of law, are proceeding to remove plaintiff from his office of president, we are inclined to think they show plaintiff is about to suffer an irreparable injury. The loss of the office may be deemed such. We are, hence, not prepared to say that if the proposed action of defendants as to removing the plaintiff was or is without jurisdiction, that this equitable action cannot be maintained, or that the temporary injunction was improperly granted.

• We proceed, therefore, to examine the alleged illegal acts of defendants as stated in the complaint and papers before us. It is claimed that on June 5, 1893, while rule No. 34 was in force, providing that: “ No rule of this council, shall be altered, suspended or rescinded except by a two-thirds vote of all the members elected, and no motion to alter, suspend or receive any (such) rule shall be in order without the unanimous consent of the council, unless notice thereof shall have been given at the previous rugular meeting, and no motion to suspend shall embrace more than one rule, or relate to anv other subject than the one specified " in said motion;” the defendants, by only a majority vote and without any notice having been given at a previous meeting, assumed to alter and amend rule 33 in violation of the provisions of law, and of rule 34 {supra). The original rule was as follows, except the part in italics, which part contains the amendment or alteration alleged to be unlawfully made : “ 33. When any member of the common council shall be charged (which charge shall be in writing and presented at a meeting of the common council) with any violation of any law or ordinance of said city, or resolution, rule or regulation of said council, the matter shall be referred at said meeting to a committee of investigation of not less than five. In .case the charge is preferred against the president of the common council,'such committee shall be named and appointed by the vote of the common council; except in case the committee is named by the common council, the member (charged) shall have the right to object to hot more than two members named on said committee, and the members complaining or charging shall have the same privilege, and other members shall be appointed to fill the vacancy thus created. The member charged shall be served with a copy of said charges and notice when said committee shall hear the same (at said time), or the time or times to which it shall be adjourned (shall) to examine the same, and 'of when it shall report to the council. When the report of any committee of investigation shall be considered, the council may order a secret session for that purpose.”

It is urged by plaintiff that rule 33 could not on June 5, 1893, be changed as above except by a two-thirds vote and after notice of the proposed change having been given at a previous meeting as provided by rule 34, then in force. We doubt whether this position is well taken. It appears by the affidavit of Craven, the clerk of the common council, that on May 3,1892, when the plaintiff was elected president-, he appointed three persons to report rules for the transaction of the business of the board, and it was then resolved that the rules of the last board be adopted until said committee reported. Said committee reported on June 5, 1893, and before the change was made in 2'ule 33. Therefore, when the change was made rule 34 was riot in force. There was then no rule. In the absence of any rule prohibiting such a coui'se it is clear that the common council could by a majority vote adopt new rules, unless prohibited by statute. Therefore, the transaction of June 5, 1893, was not an amendment of the rules, but the adoption of new rules, none then being in force. The allegation in the complaint that “certain rules of order of the common council were and have been in foi’ce,” is an allegation of a legal conclusion, and not a statement of. facts, and hence not admitted in the demurrer. There was no allegation that such rules were ever enacted by the common council. The defendants could, therefore, on the motion for an injunction prove the l'esolution that was in fact passed in i'egard to the adoption of the old rules and the facts as to the making of the new ones.

It is doubtful whether rule 34 as existing prior to the report of the committee, if deemed in force at the time in question, prohibited the making of an additional new rule unless by vote of two-thirds of all the members of the common council and unless notice should have been given at a previous meeting. The prohibition is against altering, suspending or rescinding. The so-called alteration leaves the original rule in force. It makes a provision for a case not provided for in the former rule. The alteration is, in fact, a new provision, which might have been contained in a new or separate rule, and which does not alter, suspend or rescind the provisions of rule 38 as in force on or before June 5, 1893. The transaction of June 5, 1893, was not, we think, prohibited by § 34, chapter 298, Laws of 1883, providing that no ordinances shall be adopted and no by-laws rescinded or repealed unless by a two-thirds vote. The rules adopted by a legislative or municipal body cannot be deemed ordinances. Such bodies adopt rules for their guidance in making ordinances or laws. A rule is defined to be “ the regulation adopted by a deliberative body for the conduct of its proceedings.” The word “ ordinance ” as applicable to the action of a municipal corporation should be deemed to mean the local laws .passed by the governing body. The legislature of the state pass laws and make rules for the government of its procedure. So a municipal corporation passes laws, called “ ordinances,” and enacts rules. The same distinction that exists between laws and rules made by the legislature should be held to exist between rules and ordinances. enacted by a municipal corporation.

We, therefore, incline to the opinion, that the defendants did not do an illegal act in making new rule Ho. 33 by a majority vote and without previous notice, there being no statutory or other prohibition against the act. But assuming that our views above stated are erroneous, and that the new rule as far as it alters or adds to the old one wás enacted without authority, and that in fact the old rule, Ho. 83, is in force unchanged, it remains to be seen in what regard the plaintiff is injured by the illegal action of defendants.

It requires no argument to show that if plaintiff’s only grievance was the alleged unlawful enactment of the new rule 85, and defendants, after such enactment, have done no act in violation of plaintiff’s rights, that this equitable action could not be maintained. In that case plaintiff’s remedy, if any, would be by a certiorari It will not be claimed that this court should, by injunction, restrain the action of a municipal corporation in the adoption of rules, whether such rules are regularly enacted or not. But the position of plaintiff is that defendants have not only made the new rule, but under and by virtue thereof they are proceeding to remove plaintiff. The assumption is that, without the rule, the removal would not take place.

As we have seen, the injunction is not sought to prevent the removal of plaintiff as a member of the common council, but to restrain the action of the defendants looking to his removal as president. Heither § 3 of chap. 286, Laws of 1892, amending § 7 of the act of 1883, nor rule 33, as in force on and prior to JuneS, 1893, apply to the removal of the president. Hence, at the time the charges were preferred against plaintiff there was no statute or rule providing for the procedure to be adopted by the common council in such a case, unless the new rule 33 was in force. Assuming that the common council has, in any event, power to remove the president, we are unable to see that any rule as to the course of procedure was necessary to be adopted prior to such removal. In other words, if the defendants have the power to remove the plaintiff, they can do so as well without the adoption of a new rule as with it. It is true that § 3, supra, gives the common council the right to determine the rules of its own procedure, but it is not bound to establish general rules of, procedure, and the failure to make such general rules does not invalidate its action if otherwise legal. Doubtless, on the charges against the president being preferred, the common council should furnish him a copy of the same, notice of the hearing thereon before the board or its committee, and an opportunity to examine and cross-examine witnesses, and to offer evidence on his own behalf, as was done in this case. The proceedings after the charge and before the committee seem to have been fairly conducted; plaintiff appears to have had a reasonable opportunity to protect himself, appearing by counsel and cross-examining witnesses produced by the defendants. (

Therefore, as the proceedings of defendants, based on the charges made against plaintiff, were as much authorized without a previous rule establishing the course of procedure, as if such a rule had been adopted, it is not important whether the new rule 33 was properly adopted or not. Hence, if it was within the power of the common council to remove the president, it not being essential that it should enact before the trial of the charges against him a rule or rules as to the procedure to be adopted, and as the proceedings, as far as they have gone, appear to have been fairly conducted, this action to restrain such proceedings cannot' be maintained.

The real question in the case, then, is whether the common council have or have not the right to 2’emove the president at pleasure or for cause, and if so, whether he can be removed by a majority vote. In this case the removal is sought for cause. As we have suggested, if such a removal is beyond the power of the defendants it may be a proper case for a court of equity to grant an injunction restraining an act, that, it may be deemed, would produce irreparable injury by depriving him of his office.' And in that event a temporary injunction was properly granted.

By § 3, chapter 286, Laws of 1891, supra, it is provided that the common council shall biennially elect from its own body a president, etc. The plaintiff insists that this language indicates a legislative intent that the term of one elected to said office shall be two years, or the same time as the clerk and the members of the common council. We think the statute rather indicates a contrary intent. It provides that the alderman -shall be elected for two years, and that the clerk shall hold his office for the same period. If it was the intent that the president should hold his office for two years also, the act would doubtless have so provided. The absence of a provision in the statute determining the period of time for which the president shall hold his office we think indicates a contrary intent from that suggested by respondent. In People ex rel. McCann v. Kilbourn, 68 N. Y., 479, the court of appeals has determined that the words “ shall be biennially appointed ” relates to the time when the appointment shall be made and was not intended to fix the term of office of the appointee.

We, therefore, incline to agree with the view of the appellants that the duration of the office held by plaintiff, not being provided for by the constitution or by statute, is held during the pleasure of the common council. See Constitution, art. 10. § 30; People v. Mayor of New York, 5 Barb., 43—46—47; People ex rel. Sims v. The Erie Com., 73 N. Y., 437; People ex rel. Cline v. Robb & Ors., 126 N. Y., 180; 37 St. Rep., 8.

The common council, having the power of appointment, should also have the power of removal. Such a power seems necessary. A president, after his appointment, might become entirely incompetent, insane, unable to perform the duties of his office. It is reasonable that the body that made the appointment should have the right to remove the appointee, at least, for cause, as the defendants are seeking to do in this case.

A majority of the common council can elect a president, and unless prohibited by some statute can generally pass any resolution for the government of the corporation. So, in the absence of any statutory prohibition, we think, a majority, in a proper case, can remove its president as well as appoint him. The acts of 1883 and 1891 require a two-thirds vote to remove a member of the board, but are silent on the subject of the removal of the president. It would seem to follow that the majority of the board of aldermen, who unless prohibited by statute, can enact any resolution, in the absence of any prohibition in that regard, can legally make such remaval.

When the action was commenced, therefore, the aldermen on the charges preferred against the plaintiff were proceeding to investigate the same. They had appointed a committee of five before whom plaintiff appeared with his counsel. Much evidence was taken and the papers show that the committee had returned the evidence to the board without any recommendation. We think the board had the legal right to investigate such charges, and the right if the evidence sustained them, to remove the plaintiff. To what conclusion they will come, and whether they will reach such conclusion by a majority or a two-thirds vote, it is impossible to say. Whether the evidence established the charges is not for us to determine. The question for us to consider is whether the common council had jurisdiction to remove the plaintiff for cause or otherwise. As they have that power, whether new rule 33 was properly adopted or not, we cannot by injunction restrain their action in a matter so within their jurisdiction, and in which they appear to be proceeding in an orderly manner.

Other questions are raised in the case, which we deem unnecessary to discuss.

Our conclusion is that the order should be reversed with costs and disbursements, and the motion for an injunction denied, with costs.

Herrick, J., concurs.


text:
    Hiram C. Roblee, as Administrator of, etc., Resp’t, v. William Barss, App'lt.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    1. Account stated—Error or mistake.
    Before a stated account can be opened or corrected, the proof must clearly show the error or mistake.
    2. Appear—Referee.
    A finding of the referee on a question of fact submitted to him upon conflicting evidence, cannot be reversed by the appellate court.
    Appeal from a judgment entered upon the report of a referee.

      Charles P. Coyle (A. Armstrong, Jr., of counsel), for app’lt; S. H. Bevins (Potter & Lillie, of counsel), for resp’t.
   Putnam, J.

Plaintiff’s intestate and defendant, who were copartners in January, 1889, had an accounting, on which there appeared to be due from deceased to the defendant $1,125. Defendant agreed to take the sum of $1,000, and deceased gave his notes therefor, which were afterwards paid. The plaintiff, claiming that there were errors and mistakes in the said accounting to the amount of $154.74, brought this action. The issues in the action were referred, and the referee found in favor of the plaintiff. We have entertained some doubt whether the transaction between the parties at the time deceased gave the notes did not amount to an accord and satisfaction. If so, plaintiff could not recover without showing fraud or mutual mistake. If the settlement between the parties was, in fact, an accord and satisfaction, no fraud or mutual mistake being shown upon the trial, the judgment cannot be sustained.

But on carefully considering the evidence, we are of the opinion that the referee could properly find therefrom that the settlement was a mere accounting and not an accord. The witness Coyle seems to have been allowed by both parties to draw off the account between them, and his statement of such account to have been acquiesced in by both parties. The testimony does not show any real dispute or controversy. Something was said about interest, but it does not appear that defendant insisted that he had a right to it. The evidence was such that the learned referee could properly find the transaction an account stated. Such being the case, an item or items omitted from the account may be recovered by his administrator. Carpenter v. Kent, 101 N. Y., 591; Ract v. Duviard-Dime, 21 St. Rep., 736-9-40. Of course before a stated account could be opened or corrected the proof should clearly show the error or mistake.

Whether there was sufficient evidence produced on the trial to show such error or mistake was a question of fact for the referee. There was testimony given on the trial by plaintiff tending to show such mistake. The deceased swore positively to the error, and. was to some extent corroborated by the book of account which he produced. The testimony of the deceased was in some regards contradicted by defendant’s witnesses.

On well settled principles we cannot properly reverse the finding of the referee on the question of fact submitted to him. The evidence was conflicting; the referee saw the witnesses and heard them testify, arid his conclusion should not be disturbed.

We have examined the case carefully, and do not think that any of the exceptions taken by the defendant to rulings of the referee require discussion or call for a reversal of the judgment

The judgment should be affirmed, with costs.

All concur.


text:
    Albany County Bank, Resp’t, v. Jonathan T. Rider, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    Pleading—Sham.
    It is only in unusual cases, where it appears that the answer is a mere pretense, set up in had faith, for the purpose of vexation or delay, that it can he stricken out as sham.
    Appeal from an order striking out the answer as sham.

      F. L. Michael, for app’lt; Myer Nussbaum, for resp’t
   Putnam, J.

The complaint alleges a cause of action upon two promissory notes of $500 each made by defendant to plaintiff. The answer contained no denial, but set up an affirmative defense and an alleged counterclaim. On motion of plaintiff it was struck out as sham. It has been .held that an answer coutaining a general denial cannot be thus stricken out. Wayland v. Tysen, 45 N. Y., 281; Robert Gere Bank v. Inman, 51 Hun, 97 ; 24 St. Rep., 166. Also, one setting up a counterclaim; but that an answer asserting an affirmative defense may be. Wilson v. Eastman & Manderville Co., 18 N. Y. Civ. Pro. Rep., 267; Com. Bank of Roch. v. Spencer, 76 N. Y., 155. There are cases, however, holding' a contrary doctrine. Barney et al. v. King et al., 37 St. Rep., 533; Webb v. Foster, 45 Supr., 312; Farnsworth v. Halstead, 18 Civ. Pro. Rep., 227.

It is apparent that an answer setting up a general denial should not be stricken out as sham, because such a denial is a good pleading on its face, raising an issue that should be tried in the ordinary way and not upon affidavits. So, ordinarily, when an answer sets up an affirmative defense, good on its face, the issue raised by it should not be tried on affidavits. Such a practice would deprive the defendant of a trial by jury. ■ It would allow the plaintiff if able, to produce a greater number of affidavits, to try the issues raised by the pleadings before the special term, thus taking away from the defendant a constitutional right It is only in unusual cases, where it appears that the answer is a mere pretense, set up in bad faith, for the purpose of vexation or delay that it can be so stricken out. There should appear some fact or facts outside of affidavits showing or tending to show the falsity of the answer and indicating bad faith. Farnsworth v„ Halstead, 18 Civ. Pro. Rep., 228-229 ; Hadden v. N. Y. Silk Manufacturing Co., 1 Daly, 388; Kiefer v. Thomas, 6 Abb., N. C. 42.

We think, this one of those exceptional cases, where, from an-inspection of the pleadings and the affidavits, it is apparent that the answer is thus interposed in bad faith and is false and sham. The answer sets up no valid defense. It admits the making of the note in suit to plaintiff and alleges that it was given in-exchange for and as part payment of a note theretofore made by defendant to one Herrick for the sum of $2,500 and by Herrick transferred to plaintiff. That said note for $2,500 was given for the accommodation of said Herrick and without consideration and that fact was known to plaintiff when it took the note. That defendant had received no consideration for said note from plaintiff or said Herrick. It is not alleged that there was any unlawful diversion of the note, or that plaintiff did not pay value-for it to Herrick. The fact that plaintiff knew the note was accommodation paper (if so) when it purchased it, is not a defense. Pettigrew v. Chave, 2 Hilt., 546; Grant v. Ellicott, 7 Wend., 227; Bacon v. Holloway, 2 E. D. Smith, 159; Arnold v. Sprague, 34 Vt., 402.

The answer in fact, therefore, instead of alleging a defense to the note in suit actually alleges a good consideration therefor as ■between defendant and plaintiff.

The third clause of the answer does not set up any valid counter-claim. It seems to be frivolous. Instead of showing a claim against plaintiff in favor of defendant it shows that the $2,500 note was properly transferred -to and owned by the former, who-was therefore entitled to maintain an action thereon, and the voluntary payment by defendant thereon was a payment of a sum legally due plaintiff.

The affirmative defense assumed to be set up by defendant therefore seems to be frivolous and being at the same time, by the affidavits, shown to be false was properly held by the court below to be sham and was properly stricken out.

Order affirmed, with costs.

Mayham, P. J., concurs; Herrick, J., not acting.


text:
    The Albany County Bank, Resp’t, v. Jonathan T. Rider, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

      F. L. Michael, for app’lt; Myer Nussbaum, for resp’t
   Putnam, J.

The facts in this case are substantially the same-as in the case of the same plaintiff against the same defendant,, already considered by this court

The order should be affirmed, with costs.

Mayham, P. J., concurs;. Herrick, J., not acting.


author: Herrick, J.

text:
    Henry Rodee et al., Resp’ts, v. Detroit Fire & Marine Insurance Co., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    1. Insurance—Marine—Damages.
    In an action on a policy of insurance upon a cargo of wheat, the loss or damage is to be measured by the difference between the value of the grain, upon its arrival at its port of destination, in a sound and undamaged condition, and its actual value in its damaged condition.
    2. Same—Termination of voyage.
    The voyage is not ended, within the terms of the policy, until the vessel is actually landed at the dock, where the cargo can be removed.
    8. Same—Notice.
    Where the vessel arrived at its port of destination on Thursday, but it could not, from the fact that it had to be lightened, reach the dock until Saturday, when it was unloaded and the goods found to be damaged, a notice to the company on the following Monday or Tuesday is within the meaning of the provision of the policy that, in case of damage, the company should have early notice thereof.
    4. Evidence—Insurance
    In an action upon a policy to recover damages to wheat from wetting, a party may testify what, in his opinion, was the cash market value of the wheat at the i port of destination, based upon his experience and the daily market quotation, even though such valuation was, in part, made up of the cost of the wheat, the freight, insurance and exchange.
    Appeal from a judgment in favor of plaintiffs,
    Clinton, Clark & Ingram {George Clinton, of counsel), for app’lt; Louis Hasbrouck {Alric H. Herriman, of counsel), for resp’ts.
   Herrick, J.

By a policy of insurance dated August 20, 1891, the defendant insured a cargo of grain belonging to the plaintiff, on board of the schooner Hartford, to be transported from Detroit to Ogdensburg, the policy reading “ in board cargo of the schooner Hartford, at and from Detroit to Ogdensburg.”

It was in the policy that the property insured should be insured from beginning the adventure upon the said property from and immediately following the loading thereof at the port and place named in the endorsement, and so shall continue and endure until the same shall arrive and be safely landed at the port of destination, not to exceed forty-eight hours from time of arrival.” It was further provided in said policy of insurance, “ that in case of loss or damage to the property hereby insured, it is agreed that this company, their agent or representative, shall have early notice of the same.”

On its way from Detroit to Ogdensburg, the schooner encountered a storm, and took in some water, whereby a portion of the grain became wet; the testimony of the captain which seems to have been taken as conclusive was, that the water came in around the centre-board box ; the strain of the centre-board on the centreboard box which enclosed it, worked the box in such a way as to let in the water.

The vessel reached a point at or near Ogdensburg on the morning of the 3d of September, but could not reach the plaintiff’s dock or elevator because of the depth of the vessel in the water, until a portion of the grain had been taken out of the vessel— “ lightered out in bags;” that is, “ we put the wheat into bags and put it into a lighter till we got light enough draft so we could go up the river.” After taking out a portion of the wheat, and so lightening the vessel, it proceeded up the river to the plaintiff’s elevator, arriving there on Saturday the 5th.

The plaintiff proceeded to unload the vessel by means of the elevator; it was discovered that the wheat was damaged, there were some lumps or cakes of it around the centre-board box; • the lumps or cakes off damaged wheat were attempted to be kept separate from the rest, but in taking them out some of them crumbled away and got mixed with the other wheat. In proceeding further with the unloading it was discovered that a portion of the wheat on the bottom of the vessel was wet; some of the wheat in the cargo was so wet that it sprouted.

The plaintiff commenced grinding the wheat as rapidly as possible, upon the theory subsequently explained by him upon the trial, that the wheat would become worse if not immediately disposed of, and a considerable portion of the wheat was ground up.

Upon the trial the court charged the jury that no allowance should be given by them for any loss or damage for that portion of the wheat so ground into flour.

On Monday, or Tuesday, it is uncertain which, in one portion of the evidence he says on Monday, and in another portion on Tuesday morning, the plaintiff gave notice of the loss to the defendant’s agent at Ogdensburg, who notified the home office of the company, who sent an adjuster to examine into the loss, if any.

The principal questions litigated were whether the plaintiff had given timely notice of the loss and whether he had proved by legal evidence the loss or damage sustained by him. It was practically conceded on both sides that the loss or damage is to be measured by the difference between the value of the grain at "Ogdensburg upon its arrival in a sound and undamaged condition, and its actual value in its damaged condition, and it is claimed by the defendant that an essential element was to prove what its market value would have been if sound and undamaged, and his claim is that the plaintiff failed to give any legal evidence of such market value.

The plaintiff testifies in his direct examination, “ In my opinion $1.12 per bushel would be the cash market value of the 23,001 bushels of wheat composing that cargo had it arrived at Ogdensburg sound.” No objection to this testimony was made by the defendant. *

In his cross-examination the plaintiff testified: “The cash market price was $1.12 for No. 2 red ; this was Michigan wheat. When the vessel arrived that was the cash value in Ogdensburg. We had the market quotations every day. That is what a cargo of No. 2 red wheat would have cost to have bought it and delivered it at Ogdensburg that day when the wheat arrived there, adding freight and insurance to it. I take the cost of the cargo and add freight and insurance. The cost of this cargo was $1.06 and nearly one-half cents at' Detroit; then the freight was five cents and the insurance, I think, was about half a cent a bushel; then there was exchange. I added all that together and called it the cash market value at Ogdensburgh.

At the close of the plaintiff’s evidence, the defendant .moved to strike out the evidence in regard to the value of the sound wheat upon the ground “ that it appears from the testimony of the witness Rodee, that the valuation which he gives, and which is the. only evidence as to the value, he arrives at it by taking the cost of the wheat, adding freight, insurance and exchange.” The court, in declining to grant the motion, said: “ The courts have held that the cost of an article is some evidence of its value. And Mr. Rodee does not entirely limit his estimate to the method you speak of, as I understand his testimony. He goes upon his own experience. He says they received daily market valuations, I suppose from some centre, and that his own judgment as a purchaser of wheat'for many years coincides with the costs of wheat at Ogdensburg.”

As to the first question suggested, that the plaintiff did not comply with the condition of the policy requiring early notice of the loss, it seems to me that the trial court made no error.

The property was insured until the vessel should arrive “ and be safely landed at the port of destination, not to exceed forty-eight hours from time of arrival.”

It appears that the vessel could not land at the plaintiff’s dock or elevator until she had been lightered, that is, a portion of the cago removed, and the place where she commenced the lightering was not her point of final destination, and the voyage was not ended within the terms of the policy until the vessel was actually landed at the plaintiff’s dock, where the cargo could be removed. Meigs v. The Mutual Marine Ins. Co., 56 Mass., 439; Bramhall v. The Sun Mutual Ins. Co., 104 id., 510.

The vessel reached plaintiff’s dock or elevator on Saturday, and notice was given to the resident agent of the defendant on the following Monday or Tuesday. What is early notice of the loss, is to a certain extent to be determined by the circumstances of each particular case. Bennett v. Lycoming Co., 67 N. Y., 274-77.

Upon first beginning to remove the wheat from the vessel, the full extent of the damage could not be ascertained; there were lumps or cakes of the dampened wheat around the centre-board box; by the terms of the policy unless the loss or damage reached five per cent, it was not recoverable, and it may very well be that the plaintiff would be justified in not giving notice until it appeared that the loss was reaching that per cent, which would entitle him to a recovery.

The grain was unloaded on Saturday, when the full extent of the loss was apparent; the next day was Sunday, not a business day, and notice was given the following Monday or Tuesday; and it seems to me that that is a fair compliance with the terms of the policy; it is not immediate notice, but it is “early notice.” As to the prooí of damage which the defendant asked to be stricken out, it seems to me that the trial court committed no error in that respect, first, it was admitted without objection ; second, it appears as suggested by the trial court that the witness not only testified from his own experience, but that they received daily market quotations. As to which the witness laid the most stress upon, the court which heard him give his testimony, and his manner of giving it, can judge much better than the appellate court as to whether he relied entirely upon his method of computing the value or whether upon the market quotations, or upon both. As the testimony appears in the case, the witness seems to have been qualified to form his judgment as to the value of the grain from the market quotations, and also upon his own judgment and computation as explained by him, and heretofore set forth.

I do not think it necessary to discuss any of the other questions raised in the case or the facts relating thereto.

The judgment should be affirmed, with costs. '

Mayham, P. J., and Putnam, J., concur.


text:
    Herman Crassley, Resp’t, v. Patrick J. McArdle, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    Appeal—Conflict of evidence.
    In case of a conflict of evidence, the verdict will not he set aside, if the preponderance is not so great as to indicate that the finding of the jury against the appellant was brought about by passion, prejudice or corruption.
    Appeal from judgment entered upon a verdict in favor of the plaintiff.

      Countryman & BuBois (P'. JS. BuBois, of counsel), for app’lt; O'Brien & Addington (Qeorge Addington, of counsel), for resp’t
   Herrick, J.

I have carefully read the testimony in this case, and while the preponderance of the evidence seems to be in favor of the defendant, still when it is considered that the jury had the witnesses before them to observe their appearance, and the man-1 ner of giving of their testimony, that preponderance is not so . great as to indicate that the finding of the jury against the defendant was brought about by passion, prejudice or corruption.

There was a conflict of evidence, and it was for the jury to determine where the truth was.

The exceptions taken during the progress of the, trial are not sufficiently important to cause a reversal of the judgment.

The judgment should be affirmed, with costs, there being no occasion for an opinion.

Mayham, P. J., and Putnam, J., concur.


author: Herrick, J:

text:
    Rebecca Sutherland, as Administratrix of the Goods, Chattels and Credits which were of Mark Sutherland, Deceased, Resp’t, v. The Troy & Boston Railroad Co., Appl’t.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    Negligence—Contributory.
    Where the accident would not have happened hut for the intestate’s own negligence and violation of the rules of the company, he is guilty of contributory negligence.
    Appeal from a judgment in favor of the plaintiff.

      T. F. Hamilton (John II. Peck, of counsel), for app’lt; Warren, Patterson & Faulkner, for resp’t.
   Herrick, J:

This case has been several times before the court. The court of appeals, 35 St. Rep., 853, held that upon the evidence the plaintiff was not entitled to recover, because she “ did not meet the obligations resting upon her of presenting a case from which the jury could fairly find that her intestate was free from any negligence which contributed to his death.”

Upon this last trial there was some additional evidence presented upon the question of contributory negligence from what appeared in the case when it was before the court of appeals, but from a careful reading of the case, I cannot see that the facts are substantially different from what they appeared to be then. Under the ruling of the court of appeals it seems to me that the plaintiff has not now, as she did not then, established the fact that her intestate was free from contributory negligence. Instead of meeting the obligation that devolved upon her of proving a lack of negligence, the evidence strongly points directly the other way, and that but for the intestate’s own negligence and violation of the rules of the company this accident would not have happened.

While upon this last trial there was evidence showing that the intestate upon frequent occasions ran his engine at a rate of ■speed greater than was permitted by the rules of the company, and that some other engineers had done the same thing, it also appears that, in addition to these rules, warning had been given and posted upon the bulletin for the inspection of engineers that they must not exceed the rate of speed prescribed by the rules of the company. It seems to me, upon the evidence of the case as it now appears, that within the former decision of the court of appeals the plaintiff is not entitled to recover. The judgment should be reversed and a new trial granted, costs to abide the event.

Mayham, P. J., concurs; Putnam, J.,' not acting.


author: Pryor, J.

text:
    Richard Hamilton, Resp’t, v. The Third Avenue R. R. Co., App’lt.

      (New York Common Pleas, General Term,

      Filed January 9, 1894.)

    1. Negligence—Contributory.
    When the contributory negligence of the plaintiff is an inevitable infer ence from the evidence, it is error not to dismiss the complaint.

      2. Same.
    An attempt to pass with a wagon in front of a cable car forty feet away, and approaching at a speed of ten miles an hour, is negligence as matter of law.
    Appeal from judgment on verdict and from order denying new trial. The opinion states the case.

      Wm. N. Cohen, for appl’t; Q-. M. Cescheidt, for resp’t.
   Pryor, J.

It is a question of extreme doubt whether the plaintiff gave sufficient proof of negligence on the part of the defendant to justify the submission of the issue to the jury. Conceding to him, however, a compliance with that condition of recovery, we are perfectly satisfied, upon a careful consideration of the evidence, that he not only fails to acquit himself of contributory negligence, but shows to demonstration that his injury was the effect of his own fault.

The action is for damages from a collision with defendant’s cable car; and the state of fact apparent on the close of the case is substantially this: Driving a provision wagon, plaintiff attempted to cross from the south to the north side of One Hundred and Twenty-Fifth street, between Seventh and Eighth avenues. From the west along the street a cable car was coming at the usual speed, that is about ten miles an hour. The day was bright and clear. Plaintiff was familiar with the street, and knew that cable cars were running on it. As he went over he saw the car coming, about forty feet away; nevertheless he persisted in his course. His witness testified: “I saw him (the plaintiff) just driving out, and the car was almost up to him. He started, and the car was coming very rapidly, and it came on him quicker than he supposed.”

The car struck the wagon on the hind wheel, and tilted it over; and thus the plaintiff sustained his injury. Before the plaintiff started over the street he was in á position of security. Seeing the car approach so rapidly and at so short a distance away, he took the chance of crossing in safety; and he must abide the result of his rash experiment. Helton v. Baxter, 54 N. Y., 245: Woodard v. R. R. Co., 106 id., 369, 374; 11 St. Rep., 169; Wendell v. R. R. Co., 91 N. Y., 420, 428 ; McClain v. R. R. Co., 116 id., 459, 465 ; 27 St. Rep., 549; Davenport v. R. R. Co., 100 N. Y., 632; McPhillips v. R. R. Co., 12 Daly, 365.

We are of opinion that the fact of the plaintiff’s contributory negligence is the inevitable inference from his own evidence; and that so, it was error to deny a dismissal of the complaint. Lee v. Troy, etc., Co., 98 N. Y., 115; Wirwirowski v. R. R. Co., 124 id., 420 ; 36 St. Rep., 405.

Judgment reversed and new trial ordered, costs to abide the event.


author: GrlEGERiCH, J.

text:
    American Type Founders’ Co., App’lt, v. Charles S. Conner, Resp’t.

      (New York Common Pleas, General Term,

      Filed January 2, 1894.)

    1. Sale—Books of account.
    The possession by the vendor of the incorporeal rights, to which books of account are memoranda merely, does not entitle him to the ownership of such books as an incident to such incorporeal rights, in opposition to the vendee’s title to such books under an express bill of sale.
    S. Pleadings—Demurrer.
    Where the necessary facts, upon which an objection that the plaintiff has not legal capacity "to sue can be predicated, appear in the complaint, a failure to present such objection by pleading amounts to a waiver of the same.
    3. Corporation—Action.
    An action of replevin by a foreign stock corporation is not interdicted by § 15, chap. 687 of 1893, in the absence of the certificate provided for therein.
    Appeal "by the plaintiff from a judgment of the district court in the city of Kew York, for the Seventh judicial district, rendered upon a trial before the justice thereof without a jury. The nature of the action and the material facts are stated in the opinion.

      Gharles de Hart Brower, for app’lt; Epstein Bros., for resp’t.
   GrlEGERiCH, J.

Thisaction was brought to recover the possession of a cash book and ledger of the foundry business of “James Conner’s Sons,” which business was sold by the proprietors thereof to one Thomas B. Odell, who sold the same to the plaintiff. The plaintiff’s alleged title to the books in question rests upon the following clause in the bill of sale to Odell, plaintiff’s transferror, namely, “all other effects and assets of every kind in and about the premises or used in connection with the business, including also its good will.” It appears in evidence that these books were in the safe of the foundry business when it was transferred by the proprietors thereof, and were used regularly in the plaintiff’s business until they were taken away by the defendant upon his resignation as sub-manager of the plaintiff; that the value of the good will to the plaintiff would be seriously impaired by their retention; that the plaintiff offered to allow the defendant access to the books in question, but this offer was declined by defendant, who claimed ownership thereof. Under the above very comprehensive clause, it is clear that plaintiff acquired title to said books among the other effects and assets assigned. But the justice awarded their possession to the defendants; the judgment, as far as it appears, being founded on the facts that the current book accounts outstanding in favor of the proprietors of “James Connor’s Sons” foundry business, were retained for their benefit when the business itself was sold. We are of opinion that this conclusion cannot find legal support.

The corporeal chattels, the books themselves, were obviously included among the property sold, and it cannot be said that the possession by the vendor of the incorporeal rights to which these chattels were memoranda merely entitled him to the ownership of such chattels as an incident to such incorporeal rights in opposition to the vendee’s title under an express bill of sale. The rule with reference to a transfer of debts and their incident security, is that the incident shall pass by the grant of the principal, but not the principal by the grant of the incident. “ The transfer of an accessory to a debt does not transfer the debt. Accessorium non trahit principóle. When the principal and incident are separable, and the incident is transferred, it becomes the principal as between the parties to the transfer, and the principal to which it was originally an accessory becomes either absolutely extinguished or temporarily suspended.” Battle v. Coit, 26 N. Y., 406. A fortiori the transfer of mere memoranda of a claim cannot be affected by the retention of the claim itself. It is the express act of transferring the chattels which must necessarily govern in ascertaining the nature -of the transaction, not the passive retention of the incorporeal right; expressum facit cessare taciturn. If the chattels in suit were to be excluded from the operation of the general clause in the bill of sale before referred to, the intention should be ascertained from the language of the instrument itself. Albright v. Voorhies, 36 Hun, 441. Our conclusion is that upon the record submitted the plaintiff was entitled to the possession of the books in question. The justice assessed the intrinsic value of the chattels in suit at forty-five dollars, which is supported by the evidence, and the objection to the jurisdiction of the court was, therefore, properly disregarded. .

The motion to dismiss the complaint, based upon the ground that the plaintiff had not legal capacity to sue, was properly denied. The necessary facts upon which this objection could be predicated appear in the complaint, and, therefore, the failure to present the objection by pleading amounts to a waiver of the same. Code Civ. Pro., §§ 498-499 ; Nanz v. Oakley, 19 Civ. Pro. Rep., 246. Moreover, it does not appear that the certificate provided for by § 15, chap. 687, Laws 1892, was requisite to the maintenance of this action by the plaintiff. By the terms of such section a foreign stock corporation may not maintain any action upon any contract made within the state in the absence of such a certificate. An action for replevin, however, is not interdicted by such law, the same being purely ex delicto. See Witty v. Campbell, 44 N. Y., 411.

For the reasons above cited the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.


author: Daly, Oh. J.

text:
    Walter L. S. Langerman, Resp’t, v. George H. McAdam et al., App’lts.

      (New York Common Pleas, General Term,

      Filed January 2, 1893.)

    1. Contempt—Supplementary proceedings.
    Where a party is required to show cause why he should not be punished for contempt in failing to appear for examination, and an order is made by which he is permitted to purge himself of the contempt by submitting to the examination, and the motion to punish him is suspended until his examination is concluded, then to be brought to a hearing, he may, upon such hearing, be adjudged guilty of the contempt and required to pay a flue.

      2, Same—Waiter.
    The defendant, by submitting to the examination in pursuance of the order permitting him to purge himself of the contempt, concedes that he was guilty oí the offense, and cannot be permitted thereafter to question the regularity of any of the prior proceedings.
    3. Same.
    So, where he has never moved to vacate the order which he has disobeyed, but has treated it as regular, he cannot be heard to contest its regularity or sufficiency.
    Appeal by defendant, George H. MoAdam, from an order of the special term of this court entered August, 1. 1893, adjudging him guilty of contempt and fining him thirty dollars, and from so much of an order of the special term of January 3, 1893, as adjudges the defendant guilty of contempt.
    The said defendant was ordered to appear before a referee on November 9,1892, for examination in behalf of the plaintiff, in order to enable the latter to frame his complaint in this action. The examination was postponed several times by consent until November 22d, when the defendant appeared and was sworn and ■examined at length. The examination was then adjourned to a subsequent day, when defendant was again examined at length and adjournments were had thereafter until December, 1. 1892, when defendant, by advice of counsel, omitted to appear before the referee. On December 2d the referee issued a summons to defendant to appear, which was disobeyed under advice of counsel. On December 12th he was ordered by this court to show cause why he should not be punished for contempt in disobeying the original order for examination and the summons of the referee; and after hearing both parties an order was made on January 3, 1893, permitting the defendant to purge himself of his contempt in not appearing in obedience to the order and summons, by submitting to a further examination before the referee and further directing that the motion to punish him for contempt in the premises be suspended until his examination was concluded before the referee, then again to be brought to a hearing upon three days time. After the examination was concluded before the referee a motion to punish for contempt was heard and an order made on June 3, 1893, adjudging defendant guilty of contempt in failing to appear in obedience to the original order for examination and fining him thirty dollars therefor. The defendant appeals from such an order and from so much of the order of January 3,1893, as adjudges him guilty of contempt.

      George A. Steam, for app’lt; J. P. Berg, for resp’t.
   Daly, Oh. J.

Where a party is required to show cause why he should not be punished for contempt in failing to appear for examination and an order is made by which he is permitted to purge himself of the contempt by submitting to the examination and the motion to punish him is suspended until his examination is concluded, then to be brought to a hearing, he may upon such hearing be adjudged guilty of the contempt and required to pay a fine. The plain construction and intendment of the order is that the question of the extent of the punishment to be inflicted is dependent upon his readiness to submit to the examination and to obey the mandate of the court and if the fine subsequently imposed is no more than a fair compensation for the trouble caused his adversary by his previous misconduct no ground for assailing the order exists. By acquiescing in the order permitting him to purge himself of contempt by submitting to the examination, the defendant concedes that he was guilty of the offense and cannot be permitted thereafter to question the regularity of any of the prior proceedings, except in so far as they were proper to be considered in mitigation of punishment, and as it appears that the facts were laid before the court and a light fine was imposed the order will not be disturbed.

But if the appeal from the order of January 3, 1893, may be deemed to bring up for review the propriety of said order notwithstanding the defendant has aquiesced therein and submitted to the examination ordered thereby, it is only necessary to say that he could not and cannot be heard to contest the regularity and sufficiency of the order which he had disobeyed for the reason that he never moved to vacate it, but on the contrary treated it as-regular by consenting to proceed under it, to postpone and adjourn the hearing before the referee and finally by partly submitting to the examination required by it. These acts constitute a. complete waiver of all irregularities which might have been an. answer to the proceedings to punish for contempt. Roberts v. White, 73 N. Y., 375; Amberg v. Kramer, 10 N. Y.. Supp., 302; 32 St. Rep., 177; Matter of Fleming v. Tourgee, 40 St. Rep., 705.

Order affirmed, with costs and disbursements.


author: Bookstavek, J.

text:
    John H. Haviland, Resp’t, v. Welcome B. Price, App’lt.

      (New York Common Pleas, General Term,

      Filed January 2, 1894.)

    1. Appeal -First instance.
    A party defendant, who has taken his chances with the jury for a favorable verdict, is precluded from succesfully asserting, for the first time, on-appeal that the evidence did not warrant the submission of the case to the jury, or that the verdict is without, or against the weight of, evidence.
    2. Brokers—Compensation from both parties.
    A broker may recover compensation from both parties where it is. promised by each with full knowledge that he holds the same relation to the other party, or it is the custom among brokers to charge commissions against both sides, when there is no agreement or understanding, to the contrary.
    3. Same.
    Where the broker is a mere middleman, not vested with discretion respecting the price and terms on which the sale is to be made, the rule that an agent may not recover from both sides does not apply.
    Appeal from a judgment entered on the verdict of a jury at trial term and from an error denying defendant’s motion for a new trial.

      A. Walker Otis, for app’lt; F. J. Myers, for resp’t.
   Bookstavek, J.

This action was brought to recover commissions claimed.to have been earned by plaintiff’s assignors, J. Romaine Brown & Go., in effecting the exchange of certain real estate. In May, 1890, defendant was the owner of a house and lot on Ferry street, for which he asked $15,000 and which he had placed with Brown & Co., for sale at that price. This they were unable to accomplish and subsequently they notified the defendant that a Mr. McKelvey, one of their clients, had a house and lot on West Fifty-sixth street which could be exchanged at a valuation of $30,000. Afterwards the parties met by appointment at Brown & Go’s office, where the negotiation resulting in an agreement to exchange properties was conducted. At that interview a Mr. Pressinger, a lawyer and broker represented the defendant, but nothing was said as to the relation of Brown & Co. to him, although the defendant knew at the time he had placed his property with the firm for sale and that Mr. McKelvey was also a client of that firm.

Mr. Cain represented Crown & Co. on that occasion and endeavored to bring the parties together respecting the price to be paid upon the exchange by the one increasing his offer and the other reducing his demand, but no concealment of the true relation of the parties was attempted. The defendant did ■ not repudiate the authority of Cain. All that took place at the interview was submitted to the jury. The defendant did not request the dismissal of the complaint, but on the other hand he requested the court to charge “that in order to recover the jury must find that Mr. Cain, representing J. Romaine Brown & Co., in this transaction stood impartially between the two parties, and did not favor Mr. McKelvey at the expense of Mr. Price,/’ which was charged. Thus in effect admitting the employment by both parties of the brokers and only raising the question of impartial dealing or acting in good faith to be determined by' the jury, and requesting such determination by the jury.

Having taken his chances with the jury for a favorable verdict, a defendant is precluded from successfully asserting for the first time on appeal that the facts did not warrant their submission to the jury, and that the verdict rendered is without evidence or against the weight of evidence. Bennett v. Levi, 19 N. Y. Supp., 226; 46 St. Rep., 754; Barrett v. R. R. Co., 45 N. Y., 628, 632; Sickels v. Glllies, 45 How. Pr., 95 ; Rowe v. Stevens, 44 id., 10 ; Caspar v. O'Brien, 47 id., 80.

It is, therefore, too late now to raise the question as to whether or not the plaintiff should be allowed his recovery because he “ was serving two masters.” As a general rule a broker will not be allowed to recover from both parties, but under the circumstances of this case we do not see why he should not under Jarvis v. Schaefer, 105 N. Y., 289; 7 St. Rep., 502, and in view of the stipulation in the case that it was the custom among brokers in the city of Hew York to charge commissions against both sides in a case of exchange of property, when there is no agreement or understanding to the contrary.”

But the recovery in the case under consideration may be sanctioned on another ground, and that is, the brokers were mere middle men, not vested with discretion respecting the price and terms on which the sale was to be made; hence, the rule that an agent may not recover from both sides does not apply. Siegel v. Gould, 7 Lans., 177, followed in 55 How. Pr., 416.

The judgment should, therefore, be affirmed, with costs.


author: Daly, Ch. J.

text:
    Starr Cash Car Co. v. Henry Reinhardt et al.

      (New York Common Pleas, General Term,

      Filed January 2, 1894.)

    1. Costs—To abide event.
    Where the common pleas reverses a judgment of the city court and orders a new trial, with costs to the appellant to abide the event, the costs of the appeals in the above courts and of the trial which resulted in the judgment reversed are included.
    2. Same.
    When such costs are allowed to the appellant to abide the event, they cannot be taxed by his adversary if the new trial results in the latter’s favor.
    3. Same—Amendment.
    The payment of costs as a condition of amendment does not preclude the successsful party from taxing costs of the trial.
    4. Same—Construction op order.
    But the court which awards the costs, in such a case, is at liberty to construe its own order and to say what is embraced in the award.
    Appeal by defendants from so much of the order of the general term of the city court as affirms the order of the special term allowing plaintiff to tax the trial fee of thirty dollars for a previous trial and the jury fees upon two previous trials of the action.' Appeal by plaintiff from so much of the same order as modifies the special term order by disallowing a trial fee of forty dollars for one of the previous trials of the action.
    Upon the first trial of this action the plaintiff moved for judgment on defendants’ answer. The defendants asked for leave to amend, and a juror was withdrawn at their request upon condiof the payment of thirty-five dollars costs, which condition they complied with. On the second trial of the action plaintiff moved for judgment on the amended answer, which motion was granted. Defendants appealed to the general term of the city court, which affirmed the judgment. They appealed to this court where it was held that the answer set up a valid counterclaim which should have been tried upon the merits, and the judgment was reversed and a new trial ordered, with costs to the appellants to abide the event.
    On the new trial the plaintiff recovered a verdict and was allowed to tax in its bill of costs a trial fee and a jury fee for each of the previous trials. The defendants appealed to the general term of the city court, which disallowed the trial fee for the first trial and affirmed as to the residue. Both parties appeal from that order.
    Janeway, Thatcher & Richards, for pl’ff; Joseph G. Rosenbaum, for deft.
   Daly, Ch. J.

When we reverse a judgment of the city court and order a new trial with costs to the appellant to abide the event, we intend that the costs of the appeal to this court and of the appeal to the general term of the city court and of the trial which resulted in the judgment reversed shall be included in such costs. In construing an order of the court of appeals ordering a new trial in our own court with costs to abide the event, we hold that the costs of the former trial as well as of the appeal are intended. Mott v. Consumers' Ice Co., 8 Daly, 244, and our rule is in conformity with that of the court of appeals in reversing a judgment and ordering a new trial with costs to abide the event, as the appellate court intends thereby all the costs of the action up to and including the decision of the court. Franey v. Smith, 126 N. Y., 658; 37 St. Rep., 480, and to the same effect is the decision of the court with respect to a similar award of costs to appellant. Cochran v. Gottwald, 42 Supr. Ct., 214.

When such costs are allowed to the appellant to abide the event, they cannot be taxed by his adversary if the new trial results in favor of the latter. We have the power under § 3238 of the Code of Civil Procedure, regulating costs upon apppeal from final judgment, to award costs absolutely or to abide the event, and we have the power to award them absolutely to the appellant ; and when we grant them to him conditionally upon his ultimate recovery, his adversary cannot, under any construction of such an order, become entitled to them, but can recover only the costs of the new trial, and such costs of the action as are exclusive of the costs and disbursements of the trial which has been set aside. The costs of the first trial, which terminated by the withdrawal of a juror, were unaffected by our decision upon the appeal from the judgment upon the second trial, and the plaintiff, having ultimately succeeded in the action, would be entitled to such costs. The defendants contend, however, that the thirty-five dollars paid by them as a condition of the favor extended to them in permitting the withdrawal of a juror to enable them to amend, embrace the trial fee upon that trial, and that the latter item cannot be taxed and collected from them a second time. This contention cannot be sustained upon, authority; the payment of costs as a condition of amendment contemplates only a compensation to the plaintiff to be measured by the taxable costs and the successful party is still entitled to tax costs of the trial. Cohu v. Husson, 13 Daly, 334; 6 St. Rep., 292. But the court which awards the costs in such a case is at liberty to construe its own order and to say what is embraced in the award; and the city court, at General term, having disallowed the taxation of a trial fee for the first trial placed a construction upon its own order, with which we cannot interfere. Cohu v. Husson, supra.

must, therefore, affirm so much of the order which disallows the trial fee upon the first trial and from which the plaintiff appeals, and we must affirm so much of the order as allows the plaintiff to tax the jury fee upon such trial, from which the defendants appeal. The allowance to the plaintiff of the trial fee and jury fee upon the second trial was improper, because they were a part of the costs which we awarded to the appellant in granting him a new trial, and the order of the general term which affirms such allowance and from which defendant appeal, must be reversed.

' As neither party has wholly prevailed upon this appeal, no costs are allowed.


text:
    William M. Norris, Resp’t, v. Walton C. Tiffany, App’lt.

      (New York Common Pleas, General Term,

      Filed January 2, 1894.)

      1 Contract—Consideration.
    In a bilateral contract, the reciprocity of promises is a sufficient consideration.
    3. Evidence—Parol.
    In an action on a written contract, oral evidence of a condition precedent to the inception of the contract, but not inconsistent with its terms, is admissible to defeat the contract.
    3. Samé—Irrelevant.
    The evidence is unavailable to a defendant whose only answer is a want of consideration.
    Appeal from judgment of general term of the city court affirming judgment on trial without a jury. The opinion states the case.

      Daniel D. Sherman, for app’lt; • Augustine B. McMahon, for resp’t.
   Pryor, J.

In an action by the payee against the maker of a promissory note, the only defense pleaded is a want of consideration.

Rut, upon the defendant’s own evidence, the quid pro quo is obvious and abundant. He introduced an agreement under seal between himself and the plaintiff, whereby, in consideration of the sale to him of plaintiff’s interest in their co-partnership, he covenanted to pay plaintiff five thousand nine hundred dollars and to save him harmless from the firm debts and liabilities; and whereby on his part plaintiff covenanted to transfer his interest in the co-partnership to the defendant and took upon himself certain obligations, among others, not to engage in business in competition with the defendant. In pursuance of the terms of the agreement, defendant executed two notes for the purchase price of plaintiff’s interest; one for $5,300, payable in sixty days, and the other for $600, payable in one year. The latter is the note in suit. Plaintiff’s executory engagements and the transfer of his interest, constitute an immediate and ample consideration for defendant’s promise to pay the price of his purchase.

But, defendant argues that by a stipulation in the agreement the title to the copartnership interest sold was not to pass until payment of the $5,300 note. What of it? The consideration of the contract then would subsist in a reciprocity of promises — on the one part to transfer and on the other to pay — and such mutuality of engagements is, upon elementary principles, sufficient to uphold an assumpsit. An action on the $5,300 note would lie before the transfer of the title; because such is the legal effect of the agreement and the obvious intent of the parties. The plaintiff retained the title as security for the price; and if he cannot get the price until the title passes, the security would be worse than nugatory and the express object of the parties frustrated. It is the common case of a conditional sale; in which payment is a prerequisite to the passage of title. E. S. T. F. Co. v; Grant, 114 N. Y., 40; 22 St. Rep., 302; C. F. P. N. & M. Co. v. Walker, 114 N. Y., 7; 22 St. Rep., 173.

Indeed, for anything apparent in the record, the $5,300 note has been paid, and the title vested in the defendant.

The defendant offered proof of a conditional delivery of the note in suit; and he relies upon an exception to the exclusion of the evidence to reverse the judgment.

Oral proof of a condition precedent to the validity of a written contract, if not contradictory of its terms, is certainly admissible; Reynolds v. Robinson, 110 N. Y., 654; 18 St. Rep., 235, because, like evidence of fraud and duress, it goes, not to the alteration, but to the defeat of the contract. Evidence of non-compliance with an extrinsic oral stipulation upon which the validity of the paper as an operative instrument is suspended, is simply proof that there was no contract, and so is consistent with the familiar principle.

The trouble with the defendant is, that under the pleadings the proof was not available to him. He admitted the note, and answered merely that it was without consideration. At the trial he offered evidence of another and different defense; and upon objection to its irrelevancy, the court properly excluded it. The fundamental rule in the production of evidence is, that “ it must correspond with the allegations and be confined to the point in issue.” 1 Green! on Evi., § 51.

Judgment affirmed, with costs.


text:
    Chaya Glovinsky, Resp’t, v. The Cunard Steamship Co., App’lt.

      (New York Common Pleas, General Term,

      Filed January 2, 1893.)

    I. Evidence—Documentary.
    ’Where, in an action to recover for loss of baggage, the proof establishes a special contract as to its carriage, independent of the ticket contract, the latter as evidence is wholly immaterial and irrelevant.
    2. Same—Admissions.
    A paper purporting to contain declarations inconsistent with the plaintiffs testimony on the questions of the contents and value of her baggage, where it is uncertain whether she or her husband made the answers taken down, is properly excluded.
    8. Same—Value.
    Where property is lost and cannot be appraised, proof of its cost and the way it has been used is competent upon the question of value.
    Appeal by defendant from a judgment of the city court, general term, affirming a judgment of the special term, entered by ?laintiff upon the verdict of a jury for $283 for loss of baggage. 'laintiff was a passenger from Liverpool to Hew York, and the baggage was delivered to the agent of the steamship company ia Hamburg. The defense relied upon was that the contract of transportation limited the liability of defendant to fifty dollars, unless the baggage was specifically mentioned and shipped under a bill of lading as cargo, and that it was not so mentioned and shipped, if it were ever delivered to defendant, which was denied.

      Owen, Gray & Sturges, for app’lt; Mashbir & Cukor, for resp’t.
   Daly, Ch. J.

The plaintiff’s testimony was that the defendant’s agent in Hamburg, to whom she applied for passage to America, and who sold her a ticket therefor, charged her twenty marks for extra weight upon her packages as freight to Hew York, and that she paid that sum to him.

The contract which the defendant relies upon as limiting its liability was contained, as is claimed, in the plaintiff’s passage ticket, providing that “Baggage of greater value than 200 marks ' must be specially mentioned and shipped under bill of lading as cargo.” There was no provision in the contract for payment for overweight, but it was stated that “A charge will be made for extra freight on shipboard at the rate of 50 marks a cubic metre.” It is manifest that the arrangement made between the plaintiff and the defendant’s agent in Hamburg was wholly outside of the provisions of the ticket contract, and, therefore, constituted a special and independent agreement for the transportation of the plaintiff’s baggage to Hew York, and the baggage not having been delivered, liability for the breach of the agreement cannot be avoided by reason of limitations not expressed in it. Defendant contends that the charges exacted in Hamburg were within the terms of the ticket contract, but the latter only provided for a charge for extra space, and not for extra weight. Ho provision of the written contract, therefore, could apply to the independent agreement, and plaintiff was not bound to ship her baggage under bill of lading as cargo after paying the consideration, and thus completing the contract for its shipment to Hew York.

There was a conflict of evidence as to whether the charges paid in Hamburg were for freight from Russia to that city or to Hew York. There was evidence on defendant’s part that there was no-charge for transportation to Hew York, but this question was submitted to the jury, and the finding is in plaintiff’s favor. The exceptions alone remain to be considered.

Proof of the ticket contract issued to plaintiff was rejected. The original which was delivered up on the ship, as plaintiff testified, was not produced, but an attempt was made to lay a foundation for secondary evidence of its contents. The contract, offered in evidence was wholly immaterial and irrelevant to the issue by the plaintiff’s proof, which established a special and independent contract. There was no dispute that the defendant’s agent at Hamburg received certain freight charges from the plaintiff. Whether this was paid as freight to Hamburg or to Hew York could not be determined by anything contained in the ticket, and the exclusion of the latter deprived defendant of no material evidence on the issue before the jury. On the question of the contents and value of the plaintiff’s baggage defendant offered a paper purporting to contain declarations inconsistent with the plaintiff’s testimony on those points. The paper was written by defendant’s agent at its office in New York, but he was unable to say whether the information embodied in it was received from the plaintiff or her husband. It was conceded that both of them visited the office together, but the plaintiff denied that she ever saw the witness who took down the statements and the name subscribed to the document by the agent was that of her husband. Under this state of proof the paper was not admissible as a contradiction of her testimony. Had the writer been able to identify the plaintiff as the person making the answers set down in the statement, it would have been receivable in evidence as he had no other recollection of the conversation; but as he was unable to say whether it was the plaintiff or her husband who made the answers he took down, the paper was properly exluded.

There was no error in the refusal to submit to the jury the question whether the plaintiff’s apparel came within the rule that no recovery could be had for the loss of any article not properly included in a reasonable quantity of wearing apparel of the quality, kind and value suited to the owner’s mode of living. It appeared from the evidence given by the plaintiff that the defendant’s agent in Hamburg was informed that she had a velvet dress and a fur cloak in her baggage when she was taking passage in the steerage. The defendant thus having had notice of the character of the goods taken as baggage, and having agreed to transport them, is liable for their loss, even though they were not ordinary traveler’s baggage, Stoneman v. Erie Ry. Co., 52 N. Y., 433.

The remaining exception is as to the proof of value of the goods which were not delivered. Plaintiff was permitted to give proof of the cost of the articles and the length of time she had them. This was not error. Where property is lost and cannot, therefore, be appraised, proof of its cost and the way it had been used, was competent upon the cuestión of value. Jones v. Morgan, 90 N. Y., 4.

In conclusion, the defendant ad little to complain of in the verdict rendered, which was for less than half the plaintiff’s demand, showing a discrimination on the question as to the amount and value of the goods claimed.

Judgment affirmed, with costs.


author: G-iegerich, J.

text:
    Louis Runge, App’lt, v. Otto Esan, as President of the Kranken Unterstuetzungs Verein Hanover, Resp’t.

      (New York Common Pleas, General Term,

      Filed December 4, 1893.)

    Pleadings—Amendment.
    _ The provisions of § 2944 of the Code, read with § 1347 of the Consolidation Act, make it mandatory upon the court to allow a pleading to he amended, at any time before the trial, during the trial or upon appeal, if substantial justice will be promoted thereby.
    Appeal by the plaintiff from a judgment of the district court in the city of New York for the fourth judicial district, rendered upon a trial before the justice thereof, without a jury.

      The nature of the action and the facts are stated in the opinion.

      M. Strassman, for app’lt; Eenry C. Botiy, for resp’t.
   G-iegerich, J.

This action was brought to recover so-called sick benefits. The pleadings are in writing. The complaint among other things alleges, that the plaintiff has been a member in good standing of the above-named unincorporated association since the 20th day of October, 1888, at which date he was elected to such membership; that pursuant* to the by-laws of the association a member who has paid his dues and who has been for a period of six months a member of the association, is entitled to sick benefits at the rate of five dollars per week, when sick and unable to follow his usual occupation; and that from about the middle of July, 1892, to the commencement of the action, the plaintiff was sick and unable to continue his regular occupation. The answer admits all of these allegations except the allegation that the plaintiff was sick and unable to work, which is denied. The answer also denies “that plaintiff is entitled to any sick benefits whatever from defendant’s association.”

The plaintiff’s mother under plaintiff’s objection and exception was permitted to testify that the plaintiff first had epileptic fits seven or eight years-ago; that prior to October, 1888, he - had them every two, three or four months, and that once he did not have any in eleven months.

When the plaintiff rested the defendant applied for leave to amend the answer by alleging that the plaintiff obtained admission into the society by false and fraudulent representations. Plaintiff’s counsel having objected the court' inquired of' him, “ Do you claim surprise ? ” Plaintiff’s counsel, “ No, sir, I don’t claim surprise. I will take an exception to the ruling of the court.” The court below permitted the amendment. Plaintiff's counsel strenuously urges that the justice erred in permitting the defendant to amend its answer after the trial had been proceeded with. This contention is clearly untenable in view of the provisions of § 2944 of the Code of Civil Procedure, which read with § 1347 of the consolidation act, Laws 1882, chap. 410, seem to make it mandatory upon the court to allow a pleading to be amended, at any time before the trial, or during the trial, or upon appeal, if substantial justice will be promoted thereby. Vaughn v. Lego, 1 N. Y. Suppl., 689; 17 St. Rep., 279 ; 15 Civ. Pro. R., 164; Schork v. Moritz, 6 N. Y. Suppl. 554; 24 St. Rep., 898; De Witt v. Greene, 11 Civ. Pro. R., 327; Nicholson v. Paston, 11 N. Y. Suppl., 567; 33 St. Rep., 496; Argersinger v. Lever, 17 Civ. Pro. R., 352; 28 St. Rep., 212.

The power to amend was properly exercised by the court below, and as the plaintiff’s counsel expressly disclaimed surprise, it is clear under the circumstances that the plaintiff was not prejudiced by the amendment.

While it is true that the defendant had the affirmative of the issue as to the defense that the plaintiff was admitted to membership through fraudulent representations, we cannot accede to plaintiff’s contention that the defendant failed to substantiate the same. On the contnary the evidence, in our opinion, strongly supports the following conclusions among others reached by the justice, viz.: “The undisputed facts show that about eight years ago the plaintiff became afflicted with epilepsy and has had, since that time, at frequent intervals, epileptic fits. That he was admitted to membership in the defendant association on or about the 20th day of October, 1888, and that prior to his admission he represented to the medical examiner of the defendant that he was in good health, and concealed from the examiner the fact of his epileptic troubles. The medical examiner believing the statements so made to him by the plaintiff to be true, certified to the lodge that he was a proper subject for admission. The plaintiff undoubtedly obtained his membership in the defendant association by fraud and by suppressing the truth.”

We have examined with great care, the remaining points relied upon by the plaintiff’s counsel as grounds for the reversal of the judgment; but we cannot agree with him in his contentions. It seems clear to us, that the judgment was rendered “according to the justice of the case” as contemplated by § 3063 of the code of civil procedure. Therefore, the judgment should be affirmed, with costs.