author: Hardin, P. J.

text:
    Charles E. Hubbell, Rec’r, Resp’t, v. The Syracuse Iron Works et al., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    Corporations—Mortgage to pay debts—Eights op creditors.
    Where a corporation executes a mortgage and issues bonds in trust to pay its debts by delivering the bonds directly to its creditors or by selling-them and paying the avails to the creditor, the legal title to the bonds is in the mortgagee, and until a creditor has received from him and accepted the bond or bonds he has no title to the same, and is not entitled to share in the proceeds of a foreclosure of the mortgage.
    Appeal from a judgment entered upon a decision made at the Onondaga special term. The principal ground presented upon the argument by the appellants was stated as follows: “The error of the judgment appealed from consists in the affirmative adjudication that Charles P. Everson as holder of the $36,000-claim is not entitled to any lien or interest or to share in the distribution of the proceeds of mortgage sale, for the reason that, he has not accepted the terms of the mortgage by demanding the bonds. And the adjudication that the bonds adjudged to-be invalid shall be cancelled instead of being restored to the trustee.”

      Waters & McLennan, for app’lts ; Henry A. Maynard, for resp’t; W. G. Tracy, for resp’ts, Merchants’ Eat. Bank and others; Knapp, Nottingham & Andrews, for resp’ts, The Robert Gere Bank and others; Hiscoch, Doheny & Hiscoclc, for resp’t His-cock,as rec’r, etc.; William G. Holbrook, for resp’ts, Tower and others.
   Hardin, P. J.

After the bonds were executed in pursuance of the consent of the stockholders by the corporation and delivered to the mortgagee, the legal title to the bonds was in the mortgagee. He held a legal title until he either sold the same in the market or applied the same to a creditor or creditors in payment of the debts of the corporation in pursuance with the restrictions and limitations under which the bonds came into the hands of the mortgagee. Until he made a delivery of the bonds, their vitality as a security was not perfect, as was said in Lord v. Yonkers F. G. Co., 99 N. Y., 556, viz.: “ Where a bond of this description, having no previous vitality, is delivered to a creditor of the company to pay or secure his debt, the delivery of the bond is the act by which his debt becomes secured. The security to the creditor then, for the first time, comes into being, and is as effectual as if the mortgage were executed at the same time with the delivery of the bond. The effect is the same if the bond is sold to provide means to pay a debt existing at the time of the sale, and the proceeds are paid to the creditor. As held in the case of Carpenter v. Black Hawk Co., 65 N. Y., 43, the statute prescribes no form in which the mortgage shall be made. The' mode in which the mortgage lien shall be created is left to the company. All that is required is that the lien should be given to secure a legitimate debt of the corporation, and any appropriate and convenient form for accomplishing that end may be adopted.”.

Until a creditor had received from the mortgagee and accepted the bond or bonds he had no title to the same either in law or in equity. Dillon v. Barnard, 21 Wall., 430.

(2.) Some of the minor questions raised by the appellants upon this appeal were decided adversely to them by this court in Hubbell v. Syracuse Iron Works, 42 Hun, 183; 4 N. Y. State Rep., 690. We must adhere to and follow that decision so far as it applies to such questions.

Concurring, as I do, in the opinion delivered by the learned trial judge at special term in the result reached by him, I advise an affirmance of the judgment entered upon his decision.

Judgment affirmed and one bill of costs payable to the respondents out of the funds.

Martin, J., concurs; Merwin, J., not sitting.


source: Caselaw Access Project

license: Public Domain

text:
    John Edwards and Robert D. Sparks, App’lts, v. The City of Watertown, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    1. Evidence—Admissions.
    A resolution of the common council instructing the mayor to settle a claim then in litigation, made without other consideration than that its payment would relieve defendant from further defense of the action, which proposition is not accepted by the other party to the litigation, cannot be held to conclusively establish the liability of the defendant.
    2. Same—Work, labor and services.
    In an action for work performed upon premises rented by plaintiff as agent to the defendant, a letter published in a newspapel over his signature, and left by him for publication, which stated that the owners would make alterations and fit up the premises complete without expense to the defendant, is admissible.
    Appeal from a judgment entered upon the report of a referee in Jefferson county in favor of the defendant. The action was to recover for work, labor and services claimed to have been rendered by the plaintiff John Edwards, and for materials claimed to have been furnished for the defendant. Plaintiffs claim there was an express contract for the services and materials mentioned in the complaint. Defendant claims the services rendered and materials furnished were for the owners of the rooms that were leased. The premises had been let to the city by John Edwards as agent of the owners. Among other things the referee found as matter of fact: “ That the defendant at or before the execution of said lease had made no agreement, express or implied, to pay said Edwards for the fitting up and furnishing said rooms suitable for occupancy, as aforesaid, nor had he made any claim of the existence of such a promise.” The sixth finding set forth a letter of Edwards published in a newspaper, which stated that the owners would alter and fit up the premises without expense to the city. He also found, viz.: “ That the value or cost of said fitting and furnishing of said rooms does not distinctly appear by any evidence given before me.” He found as a conclusion of law: “ That the defendant is not indebted to the plaintiff for or on account of any of the matters set forth in the complaint.”

      Edward McKinley and Moore & Moore, for app’lts; Porter &■ Walts, for resp’t
   Hardin, P. J.

Whether there was a contract existing between the plaintiff Edwards and the defendant in respect to the matters-referred to in the complaint, was a question of fact There was a great variety of evidence given bearing upon the question; there was a conflict in the evidence; and after looking into the evidence- and bearing in mind the rule laid down by the court in Poe v. Poe, 14 Hun, 613, that “ the findings are not conclusive, but the whole-evidence is open to. examination by the appellate court,” we are-of the opinion that we ought not to disturb the conclusion of fact, reached by the referee. We are not able to say that the findings-are not supported by evidence, nor that they are not in accordance with the strength and weight of the evidence.

(2) It seems that the common council of the defendant, on the 26th of April, 1882, after the litigation in this case had been quite-extensive, passed a resolution to the effect that its mayor was instructed to settle the claim. It is found as a fact that the resolution “ was without consideration other than that payment pursuant to it would have relieved the defendant from further defense of this action.” While there were some steps being taken to carry out the resolution, among others, an attempt to adjust the costs, it is found as a fact that one of the attorneys stated and declared that “ he would not accept the proposition of the resolution and proceedings mentioned in the 13th finding herein, but go on with the trial of the action, which was accordingly done.” We see nothing in the resolution which should be held to conclusively establish the liability of the defendant. Our attention is called to Calanan v. McClure, 47 Barb., 206, which is to the effect that the “admissions of a party, whether of law or of fact, which have been acted upon by another, are conclusive against the party making them, as between him and the person whose conduct he has influenced. And this, whether the admissions are made in express language to the person himself, or are implied from the open and general conduct of the party.” We see nothing in the case which aids the appellants.

(3) Defendant offered in evidence an article published in the Morning Dispatch, bearing date September 19, 1874, over the signature of the plaintiff, John Edwards, and it was conceded that the printed matter is a copy of the letters published in the newspaper “ and left there by Edwards for publication.” It was also conceded that Edwards “ did see at time of publication the copy as printed apparently over his signature.” This was objected to as incompetent and immaterial, among other grounds. The objections were overruled and the article was received in evidence, and the article is set out in the sixth finding of fact made by the referee. We think the evidence was properly received as bearing upon the disputed questions of fact arising in the course of the trial.

Having found no erroneous rulings made by the referee during the progress of the trial, and being of the opinion that his conclu.sion of law, based upon the findings of fact made by him, is correct, we must sustain the judgment entered upon the report of the learned referee.

Judgment affirmed, with costs.

Martin and Merwin, JJ., concur.


text:
    Emily Hemmens, formerly Emily Halstead, App’lt, v. Edward B. Nelson, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    1. Slander—Privileged communications.
    Defendant, who was the principal of an institution for deaf mutes, complained to the executive committee of the board of trustees that plaintiff, a teacher therein, had sent to his wife an obscene circular, and plaintiff was thereupon discharged. Held, that his communication to the executive committee was a privileged one.
    :2. Same—Direction of verdict.
    On the trial of the action for slander, plaintiff testified from her knowledge of defendant’s handwriting that the circular was sent by him, based on the supposition that the superscription on the envelope was in his handwriting. Defendant denied that he had anything to do with the origin or sending of the envelope or circular, and other witnesses testified that none of the writing was his. Held, that the court did not err in directing a verdict for defendant.
    Appeal from a judgment entered upon a verdict directed at "the Oneida circuit, and from an order denying a motion for a new trial. The action was commenced in May, 1878, and has been tried •at the circuit five times, and has been before this court on three former occasions. See 24 Hun, 395; 36 id, 149 ; 13 N. Y. State Rep., 211. At the trial next preceding the one now here for review, a verdict was rendered for the plaintiff of $500, which ver•dict was, by the trial justice, set aside and an opinion delivered which is reported in 15 N. Y. State Rep., 790. At the trial in March, 1889, at the close of the evidence, the circuit judge directed a verdict for the defendant, and to review that decision this ••appeal is brought. The action was for slander.

      Scripture & Baclcus, for app’lt; John D. Hernán, for resp’t.
   Hardin, P. J.

Upon the first appeal, 24 Hun, 398, Smith, J., in speaking for his court said : “ The case falls within the rule that •a communication, made bona fide and without malice upon any .subject matter in reference to which the party communicating has -a duty, is privileged if made to a party having a corresponding duty, although it contain criminatory matter which without this privilege would be slanderous and actionable. Thorn v. Blanchard, 5 Johns., 508; Howard v. Thompson, 21 Wend., 319; Cook v. Hill, 3 Sandf., 341; Harrison v. Bush, 32 Eng. L. & Eq., 173.”

When the case was before us on the second appeal, 36 Hun, 149, Follett, J., in speaking for the court, said: “ When the facts ■and circumstances on which an accusation is made are undisputed, the question of probable cause is a question of law for the •court The plaintiff’s theory was, that defendant sent or procured the communication to be sent for the purpose of accusing the plaintiff and procuring her discharge, and unless this theory was established as a question of fact the defendant was entitled to a verdict. Unless the defendant sent or procured this communication to be sent, we think the defendant had probable cause for .the accusation. This was the judgment of the executive committee, who must be presumed to have been fair-minded men of intelligence, desiring to discharge their duties to the public and persons interested.”

When the case was here on the third appeal, 13 N. Y. State Rep., 214, in the course of the opinion delivered, it was said: “We should have been better satisfied with the course of the trial if the learned judge had said to the jury, as a matter of law, that the defendant had probable cause, and that the communication was privileged, if they found he did not send or cause to be sent the matter, even though they found that the plaintiff did not send or cause the same to be sent.”

Since that decision was made, the court of appeals, in Byam v. Collins, 111 N. Y., 143; 19 N. Y. State Rep., 581, has held, viz.: “ Privileged communications are exceptions to the general rule which implies malice in a libellous publication and infers some damage, it rests with the party claiming- the privilege to show that the cause is brought within the exception. The exception covers cases where a communication is made bona fick upon any subject-paatter in which the party making it has an interest, or in reference to which he has a duty, legal, moral or social, which may fairly be presumed to have led to the communication, when made to a person having a corresponding interest or duty.” And it was further held in that case that when upon the trial it has been held as a matter of law that the communication was privileged “ the burden rests upon the plaintiff to establish that it was maliciously madeand upon the fourth trial of this case it was held at the circuit that whether the charge was maliciously made was a question of fact to be determined by the jury in accordance with the doctrine laid down in Byam v. Collins, supra. After the jury had found a verdict in favor of the plaintiff for $500, a motion for a new trial was made, and the learned judge who presided at the trial granted the motion, and held that the “jury must have misconstrued the evidence or failed to give it its legitimate effect in arriving at the conclusion they did, and that the verdict being clearly against the weight of evidence, it is the duty of the court to set it aside and grant a new trial.” 15 N. Y. State Rep., 790. Upon the trial now brought in review, the trial judge approved of the opinion delivered in deciding the case as appears reported in 15 N. Y. State Rep., 790, and added thereto his own conviction upon the evidence produced, “that the verdict should be directed for the defendant.”

We are inclined upon a full consideration of the evidence now in the appeal book, and in view of the previous decisions in the case, to say that the communication made by the defendant to the executive committee was privileged.

(2) Upon the trial, the plaintiff stated as a witness an opinion based upon her knowledge of the handwriting of the defendant, tending to the conclusion that the envelope and circular were sent by the defendant, based upon the supposition that the superscription and writing were in the handwriting of the defendant. It was conceded upon the trial by the plaintiff “ that none of the writing now on the paper is in Mr. Kelson's handwriting." Considerable evidence was given by witnesses who expressed the ■opinion that none of the writing upon the envelope or circular was in the handwriting of. the defendant, besides his own testimony is fully and forcibly to the effect that he had nothing to do with the origin or sending of the envelope or circular contained therein. After a careful review of the evidence, we are constrained .to say that no error was committed by the trial judge in refusing ■to submit an inquiry to the jury as to whether or no the communication was sent by the defendant.

It may be said there was a scintilla of evidence to establish such .a proposition. We think it appropriate, upon this aspect of the ■case, to apply the rule laid down in Dwight v, Germania Life Ins. Co., 103 N. Y., 343; 3 N. Y. State Rep., 115, where it was held, viz.: “ If the proof of a fact is so preponderating that a verdict against it would be set aside by the court as contrary to the evidence, it is the duty of the court to direct a verdict. It is not .sufficient to authorize a submission of the fact to the jury that there is a scintilla of evidence,’ a mere surmise to the contrary.” And also the rule as stated in the language of Judge Allen in Baulec v. N. Y. & Harlem, R. R. Co., 59 N. Y., 356, that: “ It is not enough to authorize the submission of a question as one of fact to the jury that there is ‘some evidence.’” It was for the trial judge to say, “ not whether there is literally no evidence or a mere scintilla, but whether there is any that ought reasonably to satisfy the jury that the fact sought to be proved is established.” In Improvement Co. v. Munson, 14 Wallace, 442, the rule is stated as follows: “ That in every case, before the evidence is left ■to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it upon whom the onus of proof rests.”

We think the views expressed by Kennedy, J., in 15 N. Y. State Rep., 790, upon the questions now under consideration are quite appropriate and applicable.

We are, therefore, of the opinion that the verdict ought to .stand.

Judgment and order affirmed, with costs.

Merwin, J., concurs; Martin, J., not voting.


text:
    Jabez Furner, App’lt, v. Otis Seabury, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    1. Easement—Bight to take water from spring—Location.
    Although a grant of an easement to take water from a spring is indefinite as to the location of the pipe, yet where the parties to-it have made a practical location by laying the pipes in a track assented to by them, that'portion of the grant becomes definite by reason of the acts of the parties.
    2. Same—Rights oe grantee of easement.
    Defendant, by a written agreement, in consideration of the plaintiff’s grantor conveying water from a spring on defendant’s land to his meadow by a three-fourths inch pipe, to be laid under ground of sufficient depth to preserve it from injury by frost, etc., conveyed to plaintiff’s grantor all the water that could be conducted through a half-inch pipe to be inserted at" the termination of- the three-fourths inch pipe, and the right to all the water that can run through a half-inch pipe, to be kept in repair at the cost of plaintiff’s grantor. Held, that plaintiff had the right to repair the spring and put it in such condition as to enable him to receive the quantity of water specified, and that defendant had no right to disturb or interfere with such repairs.
    Appeal from a judgment entered on the 2d day of June, 1890, in Madison county, upon a decision made at special term in that county on the merits, dismissing the complaint and dissolving the injunction, which judgment also provided, viz: “That the plaintiff be, and he is hereby directed to fill up the excavation made by him at the spring mentioned and described in said decision, on the 17th day of April, 1890; and to replace in said spring a box similar to the one taken therefrom by him at the time he made said excavation, and to restore said spring to the same condition it was in at the time he commenced making said excavation on the said 17th day of April, 1889.” On the 20th day of August, 1852, the defendant owned a farm in the town of Hamilton, and he has remained the owner and in possession of the same ever since. At that date William Colson owned a farm adjacent to the defendant’s, which has since been acquired by the plaintiff with all the rights and appurtenances thereunto belonging. On the 20th day of August, 1852, said Colson and this defendant executed an instrument under their respective hands and seals which was by them duly acknowledged on that day and recorded on the 10th of January, 1855, which contained the following language: “Witnesseth : Whereas, the said parties at the date of the ensealing and delivery of these presents are respectively seized in fee of and in two contiguous tracts, pieces or parcels of land with the appurtenances in the town of Hamilton, aforesaid, and, whereas, there is a spring of water situated therein and upon the land of the party of the first part; said spring is situated west from the dwelling house of the party of the first part, it being nearly in the center of the farm owned by the party of the first part, which spring is owned by the-party of the first part. How, therefore, this indenture witnesseth, that the party of the second part, for and in consideration and agreement on the part of the first party, that he, the party of the second part, hereby agrees to convey the water from said spring in three-fourths inch lead pipe which is to be laid under ground of sufficient depth to preserve said pipe from injury by frost or other causes. The party of the second part is to carry said water as above described into the meadow of the party of the first part, in consideration of the foregoing agreement on the part of the party of the second part, the party of the first part has hereby granted, bargained, sold, released and confirmed, and by these presents does grant, bargain, sell, release and confirm unto the said party of the second part, his heirs and assigns, all the water of said spring which can be conducted through one-half inch lead pipe; the party of the second part has the right to all the water which can run through said one-half inch pipe, said half-inch pipe to be inserted at the termination of the three-fourths inch pipe as before described, tti be constructed and kept in repair at the cost, charge and expense of the party of the second part; to have and to hold all and singular the same easement and privilege to the said party of the second part, his heirs and assigns forever, as appurtenances belonging to his and their lands as aforesaid.
    “ In witness whereof we have hereunto set our hands and seals, ■ the day and year first above written.
    Otis Seaburt. [l. s.]
    “ Signed, sealed and delivered) Wm. Colson. [l. s.J in presence of— j
    A M. Covet.”
    It was conceded on the trial “ that at the time the above instrument was executed William Colson was the owner of a farm of about 140 acres and was, at that time, in possession thereof, and which was contiguous to the lands of the defendant, and are the lands mentioned in the instrument as belonging to Colson.”
    It was admitted “ that the title to the premises upon which the spring in question is located, being the spring referred to in the above-described instrument, was in the defendant at the time the instrument between him and Colson, dated August 20, 1852, was executed and that the defendant has ever since been the owner of the premises.”
    It was further admitted “ that under the grant from Otis Sea-bury to William Colson, in evidence, William Oolson soon after the date of the grant, to wit, the 20th of August, 1852, laid a three-quarter inch lead pipe, connecting it in the spring mentioned in the grant and running thence to the defendant’s meadow mentioned in the grant, at which point William Colson connected a. one-half inch lead pipe mentioned in the grant, and conveyed water thence to his premises. It was also conceded that on or about the year 1854 the defendant attached a one-half inch lead pipe at a point above and nearer the spring than where Colson’s one-half inch pipe joined to the three-quarter inch pipe, and that the one-half inch pipe thus attached conveyed water to his, the defendant’s, premises until about the year 1886, when he disponneoted it.”
    At the request of the plaintiff it was found “ that plaintiff at no time took or claimed the right to take more than one-half inch of water, and that the pipe at all times, laid and maintained by him, was a one-half inch lead pipe.”
    The trial court refused to find as matter of law “ that defendant, by his grant, rendered his lands subject thereto, and that any interference with plaintiff’s obtaining the one-half inch of water granted was actionable, and defendant was liable to damages therefor; ” and also refused to find “that defendant, by his grant, included everything that was essential to its enjoyment and all the means to attain the thing granted, and all the fruits thereof were granted inclusive with the grant of the thing itself, and that plaintiff was authorized to lower his pipe and dig out the spring to obtain the thing granted (one-half inch water)."

      John F. Smith and L. P. Fuess, for app’lt; Mason & Cushman, for resp’t.
   Hardin, P. J.

Plaintiff has succeeded to the rights acquired by William Colson under the grant and easement executed by the defendant on the 20th of August, 1852. He is entitled to all the rights, privileges and enjoyments mentioned in that instrument While the instrument is indefinite in respect to the location of the pipe to be taken from the spring mentioned in the instrument, three-quarters of an inch in diameter, to a certain point in the meadow of defendant, where the union of the pipe with the one-half inch in diameter is to be made to carry the water across the remaining portion of the defendant’s premises to the lands of Colson, yét as the parties made a practical location and usage, laying both the pipes in a track assented to by the parties to the instrument, and enjoyed by them, that portion of the agreement became definite and certain by reason of the acts of the parties in the premises. Tyler v. Cooper, 47 Hun, 94; S. C., 16 N. Y. State Rep., 545.

When the instrument of 1852 was executed, Colson and the defendant owned adjacent farms in the town of Hamilton, as the instrument recites; and the instrument also recites that there is a spring of water situated in and upon the land ’’ of the defendant; and it also recites that “ said spring is situated west from the dwelling house of the party of the first part” The instrument also recites a consideration moving from Colson to the defendant, which was an agreement on the part of Colson binding him “ to convey the water from said spring in f- inch lead pipe, which is to be laid under ground of sufficient depth to preserve said pipe from injury by frost or other causes.” The evidence discloses that the consideration or agreement was fulfilled, as Colson shortly after the agreement was entered into laid a pipe so as to conduct the water from the spring a distance of some twenty rods, having a size of three-quarter inch, and for some eighty rods of one-half inch in diameter, in accordance with his agreement to cany the water “ into the meadow of the ” defendant, which in the instrument is declared in express words to be the consideration for the grant made by the defendant to Colson and his assigns and heirs. The instrument then proceeds to state, viz.: “The party of the first part has hereby granted, bargained, sold, released and confirmed, and by these presents does bargain, sell, release and confirm unto the said party of the second part, his heirs and assigns, all the water of said spring which can be conducted through one-half inch lead pipe; the party of the second part has the right to all the water which can run through said one-lialf inch pipe, said half inch pipe to be inserted at the termination of the three-quarter inch pipe, as before described, to be constructed and kept in repair at the cost, charge and expense of the party of the second part, to have and to hold all and singular the same easement and privilege to the said party of the second part, his heirs and assigns forever, as appurtenances belonging to his and their lands as aforesaid.” The language which we have quoted is definite and certain in many of its parts. (1) It contains words indicative that the quantity of water specified is granted, sold, released and confirmed to the second party to the instrument; (2) It is definite and certain in that it defines the quantity of water covered by the presents, to wit: “ all the water of said spring which can be conducted through one-half inch lead pipe." These latter words indicate the size of the conduit to be used, and they bear significantly the idea that the pipe is to be so laid that it will carry all the water that can be conducted through such a pipa The words “ can be conducted ” may properly receive significance in considering the manner in which the pipe was to be inserted in the spring and was to be laid and used to effectuate the intention of the parties. The subsequent language of the instrument does not limit the phrases with which we have already dealt; it is well chosen to make more clear and definite, if need be, the words already used. It declares in express words, viz.: “The party of the first part has the right to all the water which can be run through said one-half inch pipe; ” following these words are those which indicate where the one-half inch pipe is to be connected to the one that is three-quarter inch; and, according to the testimony, the one-half inch pipe was inserted in the three-quarter inch pipe about twenty rods from the spring.

Again the grant contains the following definite language in respect to the conduit to be used, and the manner of its use, and names the party on whom the burden rests of keeping it in repair■ as in the instrument we find the following language, in respect to the conduit: “ To be constructed and kept in repair at the cost, charge and expense of the party of the second part, to have and to hold all and singular the same easement and privilege to the said party of the second part, his heirs and assigns forever, as appurtenances belonging to his and their lands as aforesaid.” The instrument serves as an express grant and is itself “ the creation of the easement ” and in clear language it expresses the nature and extent From that language in connection with the circumstances existing at the time of making the instrument the nature and extent of the grant is to be determined. 2 Washburn on Beal Estate, 278, 3d ed. If the construction was doubtful the interpretation according to authority should be given favorable to the grantee. Fisk v. Wilber et al., 7 Barb., 395. The language used very clearly casts the burden upon the dominant estate to keep in repair the easement and its incidents. Such is the general rule in respect to easements. Mr. Washburn says, p. 311, 2d vol., viz.: “ As a general proposition, the dominant estate is bound to repair the way it enjoys over the servient estate, though the owner of the latter may, by grant, or reservation or by prescription, be bound to make the necessary repairs in order to its enjoyment.” The important and substantive thing granted is the use of the water, as well as the privilege of conducting it from the mentioned ■spring across the premises of the defendant to the premises now occupied and owned by the plaintiff. It is said by Mr, Wash-burn, vol. 2, p. 319, viz.: “ Property in water in connection with real estate can only be predicated of its use, which serves by its ■enjoyment to give a value to the corporeal hereditament with which its use is applied.” Under the language of the grant now before us we are of the opinion that it was the duty of-the plaintiff to maintain in repair, not only the conduit, but the spring from which he was granted the privilege of conducting so much water as would flow through a lead pipe one-half inch in diameter. Such burden was cast upon the plaintiff by -the exact words of the grant That burden seems to be in accordance with the general rule laid down in respect to enjoyment of easements. It is said by Mr. Washburn, p. 325, of vol. 2, viz.: If one owns the right of a water course in the land of another, it is incumbent upon him to keep the same in repair, unless' the land owner is bound by some covenant to make repairs. And to this <?nd he has the right, as incident to the principal easement, to enter upon the servient estate, and do whatever is necessary to make such repairs, such as.digging up the soil and the like, but doing no unnecessary damage thereby.” For the purpose of enabling the plaintiff to enjoy the use of the water covered by the language of the grant, to obtain the same from the spring mentioned, we ate -of the opinion that he had the right to “ repair ” the spring; to put it in such a condition as to receive therefrom the quantity of water specified in the grant, and thus enable him to enjoy the full benefit of the rights secured by the grant made by the defendant. The tub which was placed, or the box which was inserted in the spring at the place where the water issued, was not the spring; the ■earth which lay adjacent to the tub or the box was not the spring; neither was the rock which was on the westerly side of the aperture the spring. It was said in Magoon v. Harris, 46 Ver., 264, “ The word spring, when applied to water, means the formation of water that naturally gushes out of the earth’s surface. A spring is a place where water issues from the ground by natural forces.” Bloodgood v. Ayers, 108 N. Y., 405; 13 N. Y. State Rep., 663.

If the lowering of the tub or box a few inches, if clearing the earth from under it fifteen inches and letting the tub down, were acts necessary to secure to the plaintiff the use of such water as would flow through the prescribed pipe, then they were acts which were lawful and reasonable; and after they were performed and the site put in situation to yield the required quantity of water the plaintiff had the right to have it remain in that situation. The defendant had not the right to disturb; to interfere or displace the reasonable arrangements made to secure the quantity of water conveyed by the grant The defendant had. undertaken that the owner of the dominant estate should have “ the privilege ” of “ all of the water of said spring which can be conducted through a one-half inch lead pipe,” and in view of the grant the plaintiff has the right to all the water which can run through said one-half inch pipe.” In this connection the language used by the court in Paine v. Chandler, 5 N. Y. Sup., 742; 23 N Y. State Rep., 357, is appropriate: “The plaintiff had. a legal right to the use of the water from the spring upon defendant's land, and this right had been conferred upon him by the defendant. Such being the case, while it may not have deprived the defendant of the right to the enjoyment of his premises, and to the underground waters upon it, it nevertheless did require of him that he should exercise that right in good faith, and with due regard to the rights of the plaintiff. * * * No case can be found which holds that a person may confer a right or privilege upon another, and then maliciously destroy such right either by direct or indirect interference with the same; and this court does not propose to be the pioneer of any such inequitable doctrine.”

Attention has been called to Phelps v. Nowlen, 72 N. Y., 39, where it was held: “A party is not liable for the consequences of an act done upon his own land, lawful in itself and which does not infringe upon any lawful rights of another, simply because he was influenced in the doing of it by wrong and malicious mo five; the courts will not inquire into the motives actuating a person in the enforcement of a legal right.' It our construction of the grant already intimated is correct, that case does not aid the re spondent, who, having conferred a right upon the plaintiff, was not at liberty to infringe upon it by preventing by direct acts the plaintiff from the enjoyment of the right secured to him by the grant. Attention has been given to Bliss v, Greeley, 45 N. Y., 671, so much relied upon by the respondent to sustain the judgment before us. In that case that was a limited and specific grant of “the right to dig and stone up a certain spring, and conduct the -water therefrom through the grantor’s land, by a specified pipe, to the grantee’s house, with covenant of warranty.” It was held that such a grant “ does not render the entire premises servient to the easement; and the grantor may lawfully sink another spring, but twenty-seven feet distant, although the effect is to render the first one useless.” In the course of the opinion delivered in that case it is said: “ The grant and the covenants of the grantor are the precise measure of the plaintiff’s right,” and after stating that the grant conferred “the right to' dig out and box this spring, and to put a pipe in it,” the pertinent question is asked by the judge: “Did he thereby covenant that he would not use the rest of his farm in a farmer-like manner ? ” and the burden of the opinion is to answer in the negative, and later on the learned judge says: “This grant prevents the grantor and his assigns from any substantial interference with the spring or the pipe. It does not prevent their improvement or use of the residue of the farpa.”

In Johnstown Cheese Mf’g Co. v. Veghte, 69 N. Y,, 23, the case is referred to in the following language, viz.: “ The case of Bliss v. Greeley, 45 N. Y., 671, is cited on the part of the defendant as in conflict with this judgment; but the facts of that case were very different. In that case there was simply a grant of a right to dig and stone up a certain spring and to conduct the water therefrom through the grantor’s land, with a covenant of warranty and the court held that this did not preclude the grantor from sinking another spring on his land at some distance from the one granted, although the effect of it was to render the latter useless, provided such act was not done unnecessarily or maliciously. In that case the parties were regarded in the same light as adjacent owners, and the rule was applied that the defendant might lawfully dig on her own ground, though the effect was to cut off the water from the plaintiff’s spring by percolation. But there was no grant in that case of any particular supply of water from the spring or from the defendant’s lands. The grant was merely of the right to the spring, and secured the plaintiff no greater rights than such as he would have had if he had owned the land on which it was situated.’’ Thus it clearly appears that that case was unlike the one of Johnstown v. Veghte, supra. The latter case was more like the one now before us. In concluding the opinion it was said: “In. this case the grant was of the use of the water which at the time of the grant was being conducted from the spring, and the intent was to secure the continuance of that supply of water, it being-essential to the operation of the cheese factory conveyed.” In the case in hand, as we have already intimated, the grant was of the use of a specified quantity of water to be taken from a specified spring, and the acts and efforts of the plaintiff were in the direction well calculated to secure to him the water granted; the quantity granted from the site mentioned in the grant from the spring described in the grant.

It is claimed by the learned counsel for the respondent that the burden imposed cannot be made greater than it was at the time of the execution of the conveyance, and he has called our attention to Roberts v. Roberts, 7 Lansing, 55; S. C. affirmed 55 N. Y., 275. We do not understand that this is in conflict with the views already . expressed, for, as we understand it, it is held “ that the burden imposed cannot be made greater than it was at the time of the conveyance.” According to the evidence the plaintiff’s right secured by the grant, and the privileges, of the easement mentioned therein, are valuable and important, and are entitled to the protection of a court of equity. The foregoing views lead to the-conclusion that the result at the special term was erroneous.

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

Martin and Merwin, JJ., concur.


author: Hardest, P. J.

text:
    Burr Mattice, Resp’t, v. Henry Wilcox, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    1. Libel—Attobneys.
    To publish concerning an attorney at law an article saying: Make him. (the plaintiff) village attorney, so that any person that gets injured on the ice will be able to get large damages, is libelous.
    3. Same—Justification—Demubbeb.
    The answer alleged in justification that plaintiff had been attorney for the village in actions for'injuries caused by icy and defective streets,- in which the plaintiffs recovered judgments for $1,000 and $4,000, respectively. Held, that this constituted new matter under § 404 and was demurrable; that as it was not alleged to be a partial defense, it must be tested as a complete defense, and as such was defective, because not coextensive with the charge in the publication.
    Appeal from a decision and judgment thereon entered in Otsego county, sustaining a demurrer to the second defense in the defendant’s answer. Plaintiff’s complaint alleges “ since September, 1879, he has been an attorney and counsellor at law engaged in the business of his profession as a means of livelihood in the village of Oneonta, Otsego county, 27. Y., and has been for about two years last past, and is now, attorney for the village of Oneonta, 27. Y.” It then sets out the publication made by defendant, as follows: “ Make Burr Mattice attorney for the village, so that every person that gets spanked on the ice will be able to obtain a judgment of from $1,000 to $10,000 against the village,” and avers, “ that said defendant in said libel referred to meant the plaintiff in this action, and did by said libel charge and intend to charge the plaintiff with want of knowledge, care and skill in his professional capacity as a lawyer, and with being negligent, dishonest and corrupt in his said professional capacity.”
    By his second defense, the defendant states that he “alleges and will prove, as matters of justification of publishing said alleged articles, that Burr Mattice and his partner, W. J. Palmer, did commence an action against said village to recover damages for one Cunningham for injuries caused by falling on icy sidewalks, and a judgment for over $1,000 was obtained in said action against said village; that while said action was pending, said Mattice claimed to be retained by said village as attorney; that about the same time another action was tried against said village, in which the plaintiff in said action recovered a verdict of $4,000 and costs, for injuries received because of defective streets, the said Mattice acting as one of the attorneys for said village.”

      F. B. Gilbert, for app’lt; William H. Johnson, for resp’t
   Hardest, P. J.

Plaintiff in a plain and concise manner has stated the facts constituting his cause of action. Section 535 provides that a complaint in an action for libel need not state any extrinsic fact for the purpose of showing the application to the plaintiff of the defamatory matter, “ but the plaintiff may state generally that it was published or spoken against him.” We think it was permissible to the plaintiff to demur to the second count of the defendant’s answer. Section 494 of the Code provides, viz.: “ The plaintiff may demur to a counterclaim or a defense consisting of new matter contained in the answer on the ground that it is insufficient in law upon the face thereof." We think the allegations contained in the second defense constitute new matter under the rule prescribed by the Code. See Code of Civ. Pro., §§ 500, 494.

In Thompson v. Halbert, 109 N. Y., 329; 15 N. Y. State Rep., 513, it was held, viz.: “ Where new matter is set forth in an answer, and it is not expressly stated therein to he a partial defense, as prescribed by the Code of Civil Procedure, § 508, it must be assumed that the new matter alleged is pleaded as a complete defense, and, if demurred to, it must be tested as such.” Besides-the defendant in his answer says: “As a second defense,” that he “alleges and will prove as matters of justification of publishing-said alleged articles.” Thereafter he inserts what he maintains is a justification of the libel set out in the complaint. The rule that, a justification in an answer must be as broad as the charge which it seeks to justify was re-affirmed in Hathorn v. Congress Spring Co., 44 Hun, 608; 8 N. Y. State Rep., 511. We think the justification is defective in not stating the particulars and facts tending to establish the truth of the alleged libellous words. The answer is. not co-extensive with the charge in the publication ; it is,' therefore, defective. Fidler v. Delavan, 20 Wend., 57; Sterling v. Sherwood, 20 Johns., 204. The answer fails to show that the plaintiff' is guilty of the offense imputed to him in the language set out in the complaint.

We think the words found in the complaint were libelous within the rtile laid down in Sanderson v. Caldwell, 45 N. Y., 398, and we think the language used by Andrews, J., in that case is applicable to the case before us, when he said: “ Considering the language of the libel in connection with the extrinsic facts proved, that the plaintiff was, at the time, a lawyer engaged in the practice of his profession, it is a just inference that the words used related to him in his professional character. * * * When the -words spoken have such a relation to the profession or occupation of the plaintiff that they directly tend to injure him in respect to it, or to impair confidence in his character or ability, when, from the nature of the business, great confidence must necessarily be reposed, they are actionable, although not applied by the speaker to the profession or occupation of the plaintiff ” ; same case, p. 405 ; Bergmann v. Jones, 94 N. Y., 52. In Cruikshank v. Gordon; 48 Hun, 308; 15 N. Y. State Rep., 897, it was said that “ a charge made maliciously in respect to the professional capacity of a person which, if true, would render him unworthy of employment, is actionable per se."

In Henderson v. Commercial Advertiser Association, 46 Hun, 505; 12 H. Y. State Rep., 649, it was said, viz : “ The plaintiff is a lawyer and notary public, and the words are charged to have been published concerning him. This is a good cause of action. It is not necessary to set forth extrinsic facts showing the application to plaintiff. Code, § 535. And none are needed, to show the words to be capable of a libelous meaning in themselves. Hone other seems possible.” The learned counsel for the appellant calls our attention to Kingsbury v. Bradstreet, 116 N. Y., 211; 26 N. Y. State Rep., 520, but in that case “the words and character of the circular, standing by themselves, were incapable of a defamatory meaning.” It was, therefore, held, that “in the absence of averment and proof of facts showing that they had a latent meaning of that character, there was no question of fact for the jury.” We see nothing in the case which aids the contention of the appellant. We are quite well satisfied with the views-expressed in the opinion of the learned judge at special term. We sustain the conclusion reached at the special term.

Judgment affirmed, with costs, with leave to the appellant to amend his answer upon payment of the costs of the demurrer and of the appeal.

Mártir and Merwin, JJ., concur.


author: Macomber, J.

text:
    George D. Smith, Resp’t, v. M. Edwin Servis, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    Costs—Depositions taken by virtue oe stipulation.
    Depositions taken by virtue of a stipulation come as clearly within §§ 870, 871, as do those which are taken in pursuance of an order of the court, and a prevailing party is entitled to costs under § 3251, subd. 3, for taking such depositions.
    Appeal from an order of the special term of Monroe county, entered on the 7th day of January, 1891, directing a retaxation of the defendant’s costs.

      Arthur F. Southerland, for app’lt; George F. Yeoman, for resp’t.
   Macomber, J.

On the taxation of the defendant’s costs objection was made to seven items of ten dollars each, for taking the depositions of the plaintiff and his six witnesses in the city of Mew York, but the objection was overruled by the taxing officer and such costs were taxed. Upon appeal to the special term for relaxation, that court directed that such items be struck out; and from the order entered thereon this appeal is taken.

The place of trial of this action was originally in the county of Mew York, but upon motion of the defendant it was changed to the county of Monroe. On the plaintiff’s appeal from that order to the general term, in the first department, the order was modified so as to require the defendant to stipulate that the evidence of the plaintiff and his witnesses should, at the election of the plaintiff, be taken before a referee in the city of Mew York; accordingly a written stipulation was entered into by the attorneys for the respective parties for the taking of such testimony before a referee. The testimony of the plaintiff and his six witnesses was so taken in pursuance of the stipulation.

By subdivision 3 of § 3251 of the Code of Civil Procedure the sum of ten dollars is given as costs “ for taking the deposition of a witness or of a party, as prescribed in § 870, § 871 or § 893 of this act.” Mo question is made but that the defendant is entitled to ten dollars costs for each of the seven witnesses so examined, if anything. By § 870 the deposition of a party may be taken at any time before the trial “as prescribed in this article." By § 871 the deposition of a person not a party may be taken “ as prescribed in this article.” The learned justice at the special term has apparently held that where depositions are taken by stipulation and not by order of the court upon motion, such costs are not allowable. He has for the support of that conclusion the decision of the special term of the superior court of the city of Mew York in the case of Newman v. Greiff, 3 Civ. Pro., 362, where it was held that there'is no right given to costs to the prevailing party for taking a deposition pursuant to stipulation. We cannot concur in this view of the construction of these several sections of the Code.

By § 879 it is provided that “ the parties to an action may stipulate in writing that the deposition of a competent witness to be used therein may be taken before a judge or referee at a time and place specified in the stipulation, either orally or upon interrogatories to be agreed upon in like manner.”

Depositions taken under this section by virtue of a stipulation come as clearly within §§ 870 and 871 as do those which are taken in pursuance of an order of the court under other sections of the same article of the Code. The testimony of the plaintiff was taken as prescribed by § 870, and that of his several witnesses as prescribed by § 871. These two sections relate to all cases where depositions of a party, or of persons not parties, may be taken under this article of the Code. They constitute the authority for this procedure, and the succeeding sections above referred to relate to the mode of adducing the testimony. They control equally the cases where witnesses are examined by virtue of a stipulation under § 879 as those taken in pursuance of an order of the court made upon affidavits under §§ 872 and 873.

The order appealed from should be reversed, with ten dollars costs and disbursements.

Dwight, P. J., and Corlett, J., concur.


author: Per Curiam.

text:
    The People ex rel. Edward Rossney v. Julius Armbruster et al., comprising the executive board of the city of Rochester.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    Veterans—Street superintendent op Rochester not within the act
    The superintendent of streets of the city of Rochester is a deputy of the executive board, which is a department of the city, and hence is not included within the class of persons named in chap. 119, Laws of 1888, as amended by chap 67, Laws 1890, who cannot be removed except for cause shown and after a hearing liad, but comes within the exception contained in said act.
    Motion by the defendants for a new trial on exceptions taken at the Monroe Circuit, and ordered to be heard at the general term in the first instance.

      Francis J. Hone, for def ts; Fhigene Van Voorhis, for relator.
   Per Curiam.

The relator, being an honorably discharged soldier of the late war, was superintendent of streets of the city of Rochester, under the appointment of the defendants, who constitute the executive board of the city. The relator was removed from that post on the 30th day of April, 1890, without any charges against him and without a hearing, and his place filled by another person. It is now contended bv counsel for him that his removal was unlawful and in violation of chap. 119 of the Laws of 1888, as amended by chap. 67 of the Laws of 1890, on-titled an act relating to employes of the various cities and counties of the state.” That provision is as follows:

“No person holding a position by appointment in any city or county of this state, receiving a salary from such city or county (unless he has been appointed for a definite term), who is an honorably discharged soldier, sailor or marine, having served as such in the Union army or navy during the war of the rebellion, or the Mexican war, and who shall not have served in the' Confederate army or navy, shall be removed from such position, except for cause shown after a hearing had, but this provision shall not be construed to apply to the position of private secretary or chief clerk or deputy of any official or department, or to any other person holding a confidential relation to the appointing officer.”

Unless the relator comes within the exceptions mentioned in the statute his removal was unlawful, and he should be reinstated.

The executive board is a department of the city government of the city of Eochester, as expressed in § 142 of chap. 14 of the Laws of 1880, which constitute the city charter. That section creates a board consisting of three members, who shall be electors and freeholders of the city, and chosen by the electors of the city, each to hold office for the term of three years.

By § 149 of that act this board has power to let all contracts made by the city, except as otherwise provided, to superintend and control all work or improvements ordered by the common council, to have control of the construction, improvement, repair and cleaning of streets. This section concludes as follows:

“ The executive board may appoint, and at pleasure remove a superintendent of the streets, fix his compensation and prescribe his duties.” By the sixty-first section of the same act the superintendent of streets is required to act under the direction of the executive board, and in case of a vacancy in that office all powers and duties imposed upon him must be performed by the executive board.

Under these statutes it is plain to be seen that the relator is not included within the general provisions of the act relating to appointment and removal of officers, but comes within the exception thereto contained in the last clause of the act. As has been stated above, the defendants constitute a “ department ” of the city of Eochester. The relator is a “ deputy ” of that. department, and hence, by the terms of the statute, is not included within the class of persons who cannot be removed except for cause shown and after a hearing had.

It follows that the exceptions taken at the trial must be allowed and new trial granted, with costs to abide the event.

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


text:
    Julia J. Rogers, App’lt, v. Ellen A. Rockwood, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    1. Service—Of papers.
    A service of papers on an attorney by thrusting the same under his door when it was locked is not regular or effective, but such irregularity is waived where the paper is retained and acted upon by the attorney.
    2. Same—Waiver.
    Where an answer served after the last day allowed for service thereof is retained by the plaintiff’s attorney he cannot thereafter avail himself of any irregularity in the service thereof.
    Appeal from an order of the special term entered in Niagara county December 4, 1890, requiring the plaintiff to receive and accept the defendant’s answer, and directing that a service thereof, which was made on the 21st day of November, 1890, be deemed a good.service, and that the answer so served stand as the answer in the case.

      Henry M. Davis, for app’lt; John T. & & Cady Murray, for resp’t.
   Macomber, J.

The summons in this action was served, without the complaint, on the 16th day of September, 1890; notice of appearance was put in by the defendant’s attorneys, and a demand of a copy of the complaint, with a proper designation of the place where the same might be served.

On the 25th day of October of that year the complaint was taken to the office of the defendant’s attorneys, but the doors thereof being locked, the same was thrust under the door inside of the office, and the same was found the next day by one of the attorneys upon the floor, taken up and placed upon the table of his partner with a memorandum written thereon that he had found the same tucked under the door. Such service clearly enough was not regular and effective under subdivision 3 of § 797 of the Code of Civil Procedure. Livingston v. The N. Y. Elevated R. R. Co., 33 N. Y. State Rep., 818. But the retention of the complaint, which was subsequently acted upon by the attorneys for the defendant to the extent of making answer thereto, was a waiver of the irregularity of the service. Georgia Lumber Co. v. Strong, 3 How. Pr., 246. The motion at the special term could not, therefore, have been granted on the ground that there had not been previously a good service of the complaint.

The answer of the defendant was actually served by leaving the same with the partner of the plaintiff’s attorney on the 21st day of November, 1890, about one week after the same was due. No admission of service was given', but, on meeting the plaintiff’s attorney, a conversation was had between him and one of the attorneys for the defendant to the effect that the former desired to see his client before determining definitely whether he would accept or not the answer so served out of season. It appears, however, that the answer was never returned to the attorneys for the defendant, although, on the street the next day following the service thereof, the plaintiff’s attorney informed one of the attorneys for the defendant that his client did not desire him to accept such answer. We think that the rule stated in Georgia Lumber Co. v. Strong, supra, is equally applicable to the acts of the plaintiff’s attorney, and that, consequently, inasmuch as he retained the answer, he is not in position to avail himself of any irregularity in the service thereof.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Dwight, P. J., and Corlett, J., concur.


text:
    Warren Bryant et al., Ex’rs, App’lts, v. __rriet E. Tracy Thompson, Impl’d, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    1 Appeal—Dismissal.
    It is only where time may be gained and the appeal disposed of before the case in chief can be presented that a special motion to dismiss the appeal should be deemed available to the respondent, and that too only in a clear case, where the sole ground of the motion is that the person appealing, though a party to the suit, has no interest in the question presented by the appeal.
    2. Same—Pabty aggbieved.
    The expression “party aggrieved” used in the statute does not necessarily, and in all cases, mean a party who has a direct pecuniary interest in the question. An executor having the right to bring an action for construction of a will so as to obtain instructions as to the party entitled to be paid the fund in question, is a party aggrieved in the event of a decision against the advice of counsel, and may appeal therefrom.
    Motion by the defendant to dismiss the appeal of the plaintiffs.

      John M Parsons and Charles Robinson Smith, for resp’t and the motion; John 6r. Milburn, for app’lts, opposed.
   Macomber, J.

The motion to dismiss the appeal of the plaintiffs is made upon the ground that the appellants are not parties aggrieved •within the meaning of § . 1294 of the Code of Civil Procedure.

This ' action was brought to obtain a judicial construction of portions of the last will and codicils of Francis W. Tracy, deceased, and for instructions in regard to the plaintiffs’ duties as trustees under such will. The plaintiffs, together with the defendant Agnes Ethel Tracy, are the executors and trustees. The testator died on the 15th day of April, 1886, leaving a last will with four codicils thereto. There survived him his widow, Agnes Ethel Tracy, and his only child and heir at law, Harriet F. Tracy Thompson, the respondent, the latter an infant between eighteen and nineteen years of age at the time of her father’s death.

The testator left a large estate consisting of both real and personal property. By the terms of the second item of the second codicil, the sum of $100,000 was set apart and placed in the hands of the trustees, the income of which, or the greater portion thereof, was directed to be paid to the daughter during her lifetime. By the fifth paragraph of the same codicil, in case his daughter, either personally or by another, contested the probate of the will, all provisions made for her were to be revoked and the bequest bestowed upon the widow. The special guardian appointed by the surrogate of Erie county did contest, though unsuccessfully, such probate. -This action is therefore brought by two of the executors and trustees under the will, to determine whether the bequest to the daughter still stands or whether it was not revoked by the contest of the will made in her behalf by her special guardian. ^ For a fuller statement of the facts I refer to our opinion, herewith handed down, in this case upon the question of the validity of the revoking clauses of the will. The widow declining to become a party plaintiff from considerations of family delicacy, was made a defendant, both individually and as in her representative capacity, but she has not made answer or otherwise defended the action. Her pecuniary interests obviously lie with the claim made by the plaintiffs, for if their contention be legally correct a judgment in their favor would enure wholly to her benefit.

This motion was not brought to a hearing until the merits of the appeal were argued, and both questions were presented together but in separate briefs, counsel sending in additional or supplementary briefs upon the motion since the adjournment of the court. The practice of making special motions to dismiss appeals upon the ground stated ought not to be encouraged; for if, upon examination of the principal case, it is found that the appellants had no standing in court it would be our duty to dismiss the appeal without the intervention of motion made by the respondent on notice. It is only where time may be gained and the appeal disposed of before the case in chief can be presented, that a special motion to dismiss the appeal should be deemed available to the respondent, and that too only in a clear case where the sole ground of the motion is that the person appealing, though a party to the suit, has no interest in the question presented by the appeal.

The motion, however, should be denied on its merits. No one could reasonably contend that the action itself was not necessary, or properly brought. Careful .trustees, under the circumstances presented by this case, could not be expected to incur the hazard of deciding to whom they should pay over the income of this sum of $100,000. If they paid it to the daughter, the widow might make reclamation upon them and vice versa. Hence it is, in order to obtain a correct and binding execution of the trusts and other provisions of wills, this court is clothed with that equity jurisdiction through which an authoritative decision of practical questions arising may be anticipated for the safety of the executor, trustee, cestui que trust or beneficiary. Article 6, § 6 of State Constitution; 3 Pomeroy Eq. Jur., 1156, and cases there cited.

Being entitled to bring this action in one branch of this court for instructions in the premises, I know of no reason why the trustees are not equally entitled to take the opinion of the general term of that court, if in the exercise of their judgment and under advice of counsel they see fit to do so.

The expression “party aggrieved ” used in the statute does not necessarily and in all cases mean a party who has a direct pecuniary interest in the question, in the sense that if one construction of the will be adopted he gets a bequest, and if another, he does not. If under § 446 of the Code of Civil Procedure relating to the joining of parties plaintiff, the appellants “ had an interest in the subject of the action, and in obtaining the judgment demanded,” as they clearly had, how can it be said that they are not “ aggrieved ” within § 1294, relating to parties to appeals, if they are advised that they should not be content with the decision of the special term, but should take the opinion of the general term as well ? Having a cause of action in one branch of the court, there seems to be no reason, in the event of a decision there against the advice of counsel, why they should not be deemed “ aggrieved ” so as to enable them to demand the decision of the appellate branch of the court.

The motion should be denied, with ten dollars costs.

Dwight, P. J., and Corlett, J., concur.


text:
    The Criag Medicine Co., Resp’t, v. The Merchants’ Bank of Rochester, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    1. Corporations—Estoppel to deny corporate character.
    A bank by receiving and collecting checks drawn in favor of a corporation is estopped to deny the corporate character of the plaintiff in an action to recover the proceeds of the checks.
    2. Same—Election—Proxy.
    A proxy to vote at a meeting of stockholders when held for the election of officers, does not authorize the holders thereof to vote in the place of the persons signing it at a meeting of directors.
    3. Same—Bills and notes.
    In the absence of a legally authorized treasurer, any person who has the general management of the business of the corporation, or any director, has the power to endorse the corporation’s name for the purpose of collecting commercial paper made payable to its order.
    Appeal from a judgment of the county court of Monroe county, entered November 11, 1890, as amended November 24, 1890, on an appeal by the defendant to that court from a judgment of the municipal court of the city of Rochester for a new trial, and from an order of the county court denying the defendant’s motion for a new trial made upon the judge’s minutes.

      W. W. Mumford, for app’lt; John A. Barhite, for resp’t.
   Macomber, J.

None of the facts of this case are seriously in dispute. The action was brought to recover the proceeds of two checks of $345.76 each, dated respectively March 21 and 22, 1890, sent by merchants from Portland, Maine, to Dr. Charles Craig at Passaic, New Jersey, and by the postmaster there forwarded at the request of Dr. Craig to him at Rochester, N. Y. Dr. Craig, being ill at the time the inclosures were received by him at Rochester, directed Agnes J. Craig to endorse the checks in the name of the payee, The Craig Medicine Company, and deposit them in the bank for collection, which was accordingly done, she writing thereon “ The Craig Medicine Company, per A. J. Craig.” Dr. Craig, to whom the collections were afterwards fully paid by the bank, turned over to the company only $475 thereof, and this action is brought to recover the balance, 'in the municipal court of the city of Rochester judgment was awarded to the plaintiff for the amount claimed, and, upon appeal to the county court, the verdict of the j ury was likewise in favor of the plaintiff, and. from the judgment entered thereon, and from an order of the county court refusing the defendant’s motion for a new trial, this appeal has been taken.

The plaintiff alleges that the defendant wrongfully converted the checks to its own use at the time 'they were delivered to it by Miss Craig. There is, however, no evidence to show that the defendant did not act in perfect good faith in receiving this paper for collection and in turning over the proceeds to the party who had directed the checks to be left at the bank. Miss Craig was a daughter of Dr. Craig and was actually a director of the plaintiff. Dr. Craig had the general management of the business ; was in the habit of collecting bills and paying debts, but he had not, so far as the case discloses the fact to be, any special authorization to sign the plaintiff’s name upon commercial paper even for the purpose of collection, he being neither an officer nor a director of the corporation.

The plaintiff’s right of action is based, upon the proposition that one George W. Hicks was the treasurer as well as the president of the plaintiff, and that no person but himself had the right or authority to sign the company’s name. It is shown, however, that he did not remain at the principal office, which was at Passaic, New Jersey, but was rather the traveling man for the corporation, and at or about the time of the giving of these checks he was engaged as such traveling representative in New England.

The contention made by the appellant’s counsel, that the plaintiff is not a corporation and therefore cannot maintain this action, is not tenable. The name as it appeared as the payee in the checks and as endorsed thereon, indicated that it was a corporation. The defendant in receiving and collecting the checks, in that name, is estopped to deny the corporate character of the plaintiff,, in an action to recover the proceeds of the checks. Even though, under the laws of New Jersey, there was some omission of a technical character in the organization of the plaintiff, that omission cannot be made available to the appellant in this transaction, inasmuch as under cover of that name it became possessed of these moneys.

The principal contention of fact upon the trial related to the authority of Dr. Craig or Miss Craig to sign the name of the corporation to these checks and to collect and receive money thereon. The corporation was named for Dr. Craig, and he was the only person known by the officers of the bank to be connected with its operations. If, therefore, the endorsements of the checks were made in pursuance of any implied authority given to Dr. Craig, this action cannot be maintained. The evidence of Dr. Craig was to the effect that Mr. Hicks knew that he was receiving and paying out moneys, and that he made no objections thereto ; that he received from Mr. Hicks moneys realized from medicines sold which were sent by express to him, and that such moneys were expended by him for the pay of help, and otherwise; that he had bought at the defendant’s bank drafts on New York to pay debts owing by the company; that all of this was done with the full knowlege of Mr. Hicks, who claims now to be the sole financial representative of the corporation. Beyond doubt, if Dr. Craig had exercised these functions with the consent of the managers or ■officers or directors of the corporation, the plaintiff would be es-topped now to deny that in this particular instance he had such poweLr or right. The county court was accordingly asked by the defendant’s counsel to charge the jury as follows: “ I ask the court to charge the jury that if the jury shall find that by the consent of the plaintiff Dr. Craig had conducted the plaintiff’s business, had paid bills, sold goods, received and paid out moneys for the plaintiff, and was in fact ostensibly in charge of the business then Dr. Craig had apparent authority to endorse the drafts in question and receive the money in question, and it is immaterial whether or not he had actual authority.” The court declined so to charge and exception was taken thereto. This, we think, was such an error as to lead to a reversal of the judgment and a new trial.

Corporations can act only through their officers and agents, and if a person lias been intrusted by the officers to carry on the business, the acts of that person must be deemed to be binding upon the corporation in all cases where the parties dealing with him have not notice or knowledge of his want of actual authority.

But there is another reason more radical in its character why a new trial should be granted, and why this action cannot be maintained. As stated above, the plaintiff claims that the only person who had the right to use the plaintiff’s name in financial matters was George "W". Hicks, as he was the one designated, as is claimed, by the corporation, to fill the duties of that office. There were four persons who constituted this corporation, namely, George W. Hicks, Lizzie M. Hicks, Agnes J. Craig and C. C. Craig, Jr. The last three persons executed and acknowledged, at Rochester, N. Y., and delivered to George W. Hicks the following proxy:

“ Whereas, George W. Hicks, Lizzie M. Hieles, Charles Craig, Jr., and Agnes Craig are to organize a corporation in the state of New Jersey, known as the Craig Medicine Company, of which corporation each of the above parties are to be stockholders; and,
Whereas, It is inconvenient for the said Charles Craig, Jr., Agnes Craig and Lizzie M. Hicks to attend the first meeting of the stockholders for the election of officers. Now, therefore, we, the said Charles Craig, Jr., Agnes Craig and Lizzie M. Hicks, each of us hereby authorize the said George W. Hicks in our place and stead to vote upon the five hundred shares of the stock of said corporation owned by each of us, at the first meeting of the stockholders, whenever it shall be held, for the election of the officers.
“ Dated October 5, 1889."

The learned county judge has construed this instrument so as to include the right of George W. Hicks not only to vote upon the stock of the persons signing it at the meeting of the stockholders, but so as also to permit him, after the election of the directors, to vote in the place and stead of these persons as directors at any meeting which should be held by them for the election of officers. The fact is shown to be that at the stockholders’ meeting which is claimed to have been held November 1, 1889, at Passaic, N. J., there was present only one person, George W. Hicks. ^

The minutes of that meeting show that Hicks was called to the chair and that he thereupon called the meeting to order; that a motion was made and seconded that the election of directors take place, which was carried unanimously; that, on motion of Agnes J. Craig, and seconded by Charles Craig, Jr. (all speaking by George W. Hicks), Mr. Hicks was nominated and elected director unanimously ; that on motion of the same persons, both still speaking by Mr. Hicks, Agnes J. Craig was nominated and elected a director unanimously; upon the same nomination Charles Craig, Jr., was nominated and elected a director, and thereupon the meet-' ing adjourned. There was present, as stated before, but one person, and that was George W. Hicks.

On the same day the following proceedings were had, as disclosed by the minutes of this corporation, there still being present but one person, George W. Hides: “Present, the full board of directors. On motion of Charles Craig, Jr., G. W. Hicks was nominated for president and treasurer, seconded by Agnes J. Craig, and carried unanimously. George W. Hicks took the chair. On motion made by the chairman, George W. Wheaton,. Jr., "was nominated for the office of secretary; same was seconded and carried unanimously. On motion of Charles Craig, Jr., seconded by Agnes J. Craig, that the by-laws governing the company be read by the secretary; carried. The by-laws having been read by the secretary, motion was made by Agnes J. Craig, and seconded by George W. Hicks, that the same be adopted. Motion was put and carried unanimously.

“ On motion made by chairman that the meeting adjourn, the same was seconded by Agnes J. Craig and carried.
“Signed. George W. Wheaton, Jr.,
" Secretary."

We know of no principle applicable to the discharge of corporate functions by which directors or trustees of the corporation can vote at the meeting of the board of directors or trustees by proxy. Under the act of this state, chap. 40, Laws 1848, for the organization of companies for manufacturing, mining, mechanical or chemical purposes, stockholders may, at the meeting of the stockholders for the election of the directors, vote when absent by giving a written proxy to some other person.

This is also true of the statutes of New Jersey, put in evidence, but there is no law in New Jersey that permits a director to vote by proxy at board meetings. The general rule there, as in this state, and universally is, that it requires a quorum of directors or managers or trustees of a corporation to transact business, and that-in the absence of a statute making a different number such quorum, a majority of the whole board is required. The principal claim, therefore, made by the plaintiff that it had a legally elected treasurer who alone could transact business of the corporation of this character cannot be maintained. The proxy or power of attorney, put in evidence, did not give Mr. Hides the right to vote in the name of the directors who should be chosen at the stockholders’ meeting, and if it had it would have been utterly void. It was not known, indeed, who the directors would be. Under the power of attorney, Hicks had the right to elect other persons than those whom he did in fact designate as directors.

In the absence, therefore, of a legally authorized treasurer, any person in the position of Dr. Craig, who had general management •of the business, or any director, as Miss Craig is shown to be, had the power to endorse the corporation’s name for the purpose of collecting commercial paper made payable to its order. The defendant, having acted in perfect good faith, has turned its collections over to the proper person representing the corporation. There being no treasurer by election of the directors, and none, in fact, by the usual conduct of the business except the person acting for the plaintiff in this instance, it follows that the manager or any director of the corporation could, in the absence of a positive statute, sign the corporation name for the purposes of the collecting of commercial paper.

The j udgment and order appealed from should be reversed and ■a new trial granted, with costs to abide the event

Dwight, P. J., and Corlett, J., concur.


author: Truax, J.

text:
    Eli Hyman, App’lt, v. The Boston Chair Mfg. Co., Resp’t.

      (New York Superior Court, General Term,

      Filed March 2, 1891.)

    1. Witness—Experts.
    While it takes but little special knowledge to qualify a witness to testify as an expert, still he should have some knowledge of the subject in order to entitle him to give an opinion.
    2. Same.
    In an action for breach of a covenant of quiet enjoyment in a lease, testimony of witnesses as to the value of the unexpired term was rejected on the ground that they were not qualified as experts. One of them had rented premises but did not state where they were, and the other had rented premises once, but they were at some distance and were not shown ■ to be of the same nature as those in question. Seld, that neither of the witnesses was a competent witness on this point.
    Appeal from a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial.
    The action was brought to recover damages for the breach of a covenant for the quiet and peaceful enjoyment of certain premises leased by the defendant to the plaintiff. The answer was a general denial.

      Samuel F. Hyman, for appl’t; James A. Dennison, for resp’t.
   Truax, J.

No special damages were alleged in the complaint In an action brought to recover damages for a breach of a covenant of quiet enjoyment contained in a lease, the measure of damages is the value of the unexpired term, less the rent reserved. Mack v. Patchin, 42 N. Y., 167.

Certain questions tending to show special damages were rightly ruled out because special damages had not been pleaded.

Plaintiff attempted to show the value of the uneXpired term by his own testimony and by the testimony of another witness. This testimony was objected to on the ground that neither of the witnesses had qualified as experts, and the objection was sustained, and the plaintiff duly excepted. This ruling was not erroneous.

While it takes but little special knowledge to qualify a witness to testify as an expert, still the witness should have some knowledge of the subject about which he is questioned in order to entitle him to give an opinion.

In this case neither of the witnesses appear to have any knowledge on the subject about which they were questioned.

One of the witnesses testified that he had rented premises, but. where the premises were, whether in this country or another, did not appeal’. The other witness testified that he had rented prem ises once, and this witness, by the way, was a boy of sixteen years of age, but the premises so rented by him were at some distance from the premises in question. And, moreover, it does not. appear whether they were of the same nature as the premises in question or not

Neither one of the witnesses was a competent witness on this point

Judgment and order affirmed, with costs.

Sedgwick, Oh. J., concurs.


text:
    Sebastian Duncan, Resp’t, v. The Preferred Mutual Accident Association of New York, App’lt.

      (New York Superior Court, General Term,

      Filed March 2, 1891.)

    1. Insurance (acc:toent)—Negligence.
    One J. was insured by an accident policy which provided that he should use all due diligence for personal protection. He was crossing railroad tracks, when he was called to ftom several directions to “look out for the express,” and thereupon hastened to reach the platform on the other side when he was struck by the train and killed. Held, that under the circumstances it was for the jury to determine whether his death was caused by his negligence.
    2. Same—'Voluntary exposure.
    It was a question of fact for the jury as to the extent to which he was influenced or controlled by external circumstances, and they would be bound to find that his act was not voluntary if it was such as a man of ordinary prudence would be induced to do by the circumstances.
    3. Same.
    The provision of the policy against “ standing or walking on the road bed or bridge of any railway "does not include such a crossing of the track.

      4. Same—Evidence.
    Evidence of a custom or usage of people to cross the track at the point in question is admissible on the question whether the deceased was killed while violating the rules of the company, within the meaning of the policy.

      5. Same—Charge.
    The court correctly charged that to establish that deceased met his death by voluntary exposure to unnecessary danger, the jury must find that the act of exposing himself was known or ought to have been known to him and that his crossing the track was done voluntarily with full knowledge of the danger.
    6. Same.
    The court properly refused to charge that he was bound to exercise more than ordinary care, holding that the care should have been such as a prudent man would have i sed under the same circumstances.
    Appeal from judgment entered upon verdict of jury and from order denying motion for new trial made upon judge’s minutes.

      George W Sill, for app’lt; Paul Wilcox, for resp’t.
   Per Curiam.

The plaintiff sues as the assignee of a policy of insurance made by defendant insuring one Jansen, the assignor, “against bodily injuries effected through external violent and accidental means.”

Por a reversal it is urged that the testimony incontrovertibly proved that Jansen’s death resulted from his own negligence. The policy provided that “the member is required to use all due diligence for personal protection.”

The death of Jansen was caused by his being run down by a steam locomotive and .its train. The train was moving upon a track, close to the platform of a station. This track was designated on the trial as No. 1. South of that track, at a short distance from it, and about parallel to it, was another track called No. 2, and again another track, parallel, designated as No. 3, and still to the south were several other tracks.

It may be assumed that Jansen approached the place from the outside of all these tracks from the south. Whether it was a negligent act to approach in this way, and to cross until he reached track No. 3, is not material in this case, for the testimony shows that in fact he was in no danger from the approaching train until he reached track No. 3, as the jury might find.

The jury might find, under the evidence, that when he reached track No. 3 he could not see the approaching train, if he had looked, as there were cars standing upon that track. If he had proceeded to track No. 2 and crossed it without looking for a train, and there were no other facts for a jury to find whether he was excusable for not looking, and for going on, the court perhaps might hold that his negligence caused the accident in part But there were other occurrences, which made up the circumstances, in view of which it was to be determined whether the deceased was negligent.

As he was upon track No. 3, Downey, an employe of the railroad, as he was on the platform, saw Jansen coming towards the platform. The train, that afterwards struck Jansen, was coming towards the platform at great speed, and Downey called out in a loud tone: “Look out for the express.” Jansen was then thirty feet away, and might have heard. Simultaneously another employe shouted to Jansen from one side. It might have been found that also another employe was then calling to Jansen from behind him. Forthwith Jansen, who had been walking rapidly, or was upon a half trot, took a still faster pace, crossed track No. 2, and as he was crossing the next track, was struck.

The jury in finding what course would be taken by a prudent man would be obliged to ascertain what would be the effect upon such a man of the calls to him under the circumstances and whether their meaning to him would be to stop where he was or to proceed at a fast rate, and that then he would be safe. It is to be noticed that Jansen was not told to stop. That the directions to him may have been confusing, as some came from one side of him and others the jury might find came from a track over which he had passed. On the whole, a j ury might believe that a man of ordinary prudence and apprehension would be led to believe that it was a safe course to hurry and get to the platform as quickly as he could. It was for the jury to find whether in taking that course it was imprudent not to stop at track No. 2 and look for -the train.

There was sufficient testimony to call for a verdict of the jury on the question of whether the death resulted from the negligence of the insured.

By the policy the company were not to be liable if the death resulted “from voluntary exposure to unnecessary danger.” The appellant argues that the testimony disclosed a breach of this condition by the deceased.

At this point attention will be given only to the term voluntary. If there were not a voluntary exposure, there was not a breach. The word, of course, in some way refers to the action of the will.. Used as it is in the policy by an insurance company to be understood by men of ordinary information and intelligence, it does not involve the opposing views of philosophers as to free will or determinism. But by all it is considered that the will acts from motives springing from things external to the will and that such motives have an influence more or less controlling upon the will and tending to induce it to act in a certain way.

In common apprehension, in respect to the ordinary transactions of life, if the external circumstances would have such a controlling influence upon a man of ordinary prudence and intelligence that he would take a certain course, that course would not be considered voluntary on his part. His course would not be freely taken. It would be controlled by external circumstances.

In this case it was a question of fact for the jury as to the extent to which Jansen was influenced or controlled by the external circumstances. And the jury would be bound to find that his act was not voluntary, if it was such as a man of ordinary prudence would be induced to do by the circumstances.

It is further maintained for the appellant that the injury was not “ accidental.” The meaning of this word, however, seems to be, not brought about by the purpose or intention of the insured. This was at least for the jury to pass upon.

The policy excepts the hazard “ of standing or walking on the road-bed or bridge of any railway.” This docs not include such a crossing of the track as the deceased made. To stand or to walk on a road-bed implies some sensible duration of the act and does not describe a mere crossing made for a justifiable purpose^ such as reaching the station. Common language distinguishes between standing, walking and crossing.

On the trial the following questions were asked and answered under exception by defendant: Q. Has it has been the custom, to your knowledge, for people to reach the station in Stamford by other routes than going by the regular roadway ? Q. Do you know whether there was a general custom at this time for people to cr.oss those tracks from Collender billiard factory to the station? These questions were properly allowed. They tended to draw out matters relevant to the defense in the answer under a clause of the policy that Jansen was killed “ while, or in consequence of, violating the law or the rules of a company, etc.” This supposed violation was crossing the tracks. It was some evidence of the rule or regulation of the company that the tracks had been used for crossing by people generally.

The court did not charge erroneously “ that if the jury find that plaintiff’s assignor was passing the crossing in question upon an express or implied invitation or inducement of the railroad company, or by its permission, he was rightfully there.” It is apparent from the rest of the charge that this meant, and was understood to mean, rightfully as regarded the railroad company. It was involved in the facts to be passed upon to consider whether Jansen was a trespasser, among other things, as bearing upon his conduct.

There was an exception to the charge that plaintiff’s assignor' in crossing the tracks when he did was not a trespasser and the plaintiff has a right to recover if the injury complained of was not caused by want of ordinary care. The evidence established the fact that Jansen was not a trespasser.

The remainder of this part of the charge, if considered with the rest of the charge, was not injurious to the appellant, even if it be when taken by itself not correct.

The court was correct in charging that to establish that defence that Jansen met his death “ by voluntary exposure to unnecessary danger the jury must find that the act of so exposing-himself was known or ought to have been known to him, and that his crossing the track was done voluntarily with the full knowledge of the danger.” There seem to be some words inadvertently omitted from the charge as printed in the case. The charge means that to sustain the defence the deceased must have known or ought to have known the danger and that his act was voluntary and with the knowledge of the danger that he had or ought to have had. The deceased did not voluntarily expose himself to danger if he did not know, or was not bound to know, the existence of that danger.

The court was asked to charge that if Jansen heedlessly and unnecessarily exposed himself to danger of injury, the plaintiff could not recover. The court was not called upon to charge in •these words. It had held, for the purpose of the charge, that the act of Jansen was voluntary and had explained that to be voluntary exposure Jansen must know or should have known that the danger was present.

The court was right in refusing to charge that Jansen was bound to exercise more than ordinary care, holding that the care should have been such as a prudent man would have used under the same circumstances.

Judgment and order affirmed, with costs.

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


author: Dugro, J.

text:
    Andrea Caccavo, Adm’r, App’lt, v. The Rome, Watertown & Ogdensburg R. R. Co., Resp’t.

      (New York Superior Court, General Term,

      Filed March 2, 1891.)

    Costs—-Security for—Administrators.
    Where the allegations of the complaint in an action brought by an .administrator are upon information and belief and the sources of information are not given, and such allegations are controverted by the affidavits used on the motion, a proper case is presented f^r the exercise of the discretion of the court as to requiring security for costs, especially upon concession of pecuniary irresponsibility.
    Appeal from order requiring plaintiff to file security for costs.

      Edward J. McGuire, for app’lt; Thomas Spratt, for resp’t.
   Dugro, J.

This is an appeal from an order requiring the to file for costs.

By § 3271, Code of Civil Procedure, it is provided that in an action brought by or against an administrator in his representative ■capacity, the court may, in its discretion, require the plaintiff to give security for costs. In the present case the court did so require, and upon this appeal the only question presented is whether any grounds existed for the exercise of a discretion.

In order to determine this question, it is well to inquire into the general principles upon which the Code provisions as to security for costs were based.

It seems to have been deemed wise by the codifiers to assume the pecuniary responsibility of plaintiffs, except in certain specified cases where, from the nature of the case, irresponsibility was apparent, or deemed proper to be assumed. In the excepted cases tfie plaintiffs were required by the Code provisions to give security for costs, for instance, as of the class first referred to, an infant whose guardian ad litem had not given security, and in the second ■class, among others, non-residents and foreign corporations. Where irresponsibility was certain,security was generally required; the right of application for leave to sue in forma pauperis, however, being accorded. In a case such as the present, it seems in harmony with the policy adopted by the codifiers to assume the responsibility of the plaintiff. If irresponsibility is, however, conceded, it would naturally follow that this circumstance would suffice to make aprima facie case for the requirement of security. It may be sufficient to meet this case that an administrator satisfy the court that he has a good cause of action. In the case pre-. sented, sufficient appears to make it unnecessary to pass upon the question above referred to.

It seems that the allegations of the complaint are upon information and belief, and that the court was not informed of the sources of the information. This fact, in view of the specific statements in the affidavits submitted on behalf of the defendant as to the circumstances of the accident, supplied sufficient ground for the exercise of discretion by the learned judge below.

Upon the concession of pecuniary irresponsibility, it certainly became the duty of the plaintiff upon the motion to satisfy the court that he had a good cause of action, and this, it must be assumed, he failed to do.

Order affirmed, with ten dollars costs.

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


text:
    Artemas H. Holmes et al., Appl’ts, v. George S. Evans et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed March 2, 1891.)

    Attorneys—Compensation for services.
    Plaintiffs were employed by defendants to litigate or make settlement of certain claims. A settlement made by them not being satisfactory to defendants, plaintiffs gave a consent to substitution and wrote a letter saying that if a settlement was made on substantially the terms rejected, they should be entitled to their compensation. Held, that they were not entitled to recover unless the settlement subsequently made by defendants contained substantially the same terms as that made by plaintiffs.
    Appeal by plaintiffs from judgment entered upon the report of a referee.

      William B. Horriblower, for app’lts; John 0. Tomlinson, for resp’ts.
   Per Curiam.

The plaintiffs were employed as attorneys at law by the defendants to litigate certain claims or to make a settlement of them. They, the plaintiffs, by negotiation, were able to make a settlement This, however, was not satisfactory to the defendants. Thereupon the plaintiffs gave to defendants a blank consent to substitute attorneys, and wrote a letter consenting that the defendants should proceed to make a settlement, and adding, in the event that you settle the controversies, upon substantially the same terms as you reject, we shall be entitled to the compensation provided for in the agreement.”

The plaintiffs, therefore, are • not entitled to recover unless the settlement afterwards made contained substantially the same terms as did the settlement which the plaintiffs could have made.

The referee finds that the terms were not substantially the same. This is supported by the tenor of the respective settlements.

Judgment affirmed, with costs.

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