author: Wright, J.

text:
    William Duffus, Pl’ff, v. Christolph Schwinger et al., Def’ts.

      (Supreme Court, Oswego Special Term,

      Filed February, 1894.)

    1. Evidence—Motion to strike out.
    Where no motion is made to strike out the parol evidence of the contents-of a letter, admitted without objection, it is proper to be considered.
    ' 2. Principal and agent—Declarations.
    The declarations of an agent are competent to show that he had accepted the agency, and that he held himself out as acting in that capacity.
    3. Same—Liability.
    The principal is liable for his agent's tortious acts, done in the course of his agency, though in excess of the strict letter of his instructions.
    Motion by defendants for a new trial on a case and exceptions.

      Geo. W. Cothran, for motion; Walter S. MacGregor, opposed.
   Wright, J.

Action in replevin for the recovery of a canal boat. The jury rendered a verdict for the plaintiff, and fixed the value of the boat at $800 and the damages for its detention at $2,500.

The plaintiff had title to and the right of possession of the canal boat in question by virtue of an overdue mortgage. When he attempted to foreclose he found one Petrie in possession of the boat by virtue of a mortgage executed to the defendants subsequent to the plaintiff’s mortgage. He forcibly prevented the plaintiff from taking possession of the boat, advertised and sold it, under said subsequent mortgage.

The plaintiff claims that Petrie was the defendants’ agent in¡ this transaction. >

An assignment of the last-mentioned mortgage, executed by the defendants to said Petrie, appeared on the back thereof, and the defendants claimed on the trial that Petrie- was acting in said, transaction for himself individually as owner of the mortgage and not as their agent. Acts of Petrie in converting the boat were given in evidence upon the assurance of the plaintiff’s counsel that his agency would afterwards be proved, and his statements that he was acting as agent of the defendants were allowed also in anticipation of such proof.

The allowance of said testimony,- while out of its strict order, was discretionary with'the trial judge, and was not error.

The defendant’s learned counsel now urges that there was not sufficient evidence of Petrie’s agency to take the case to the jury. It was shown that the defendants were residents of Tonawanda, and mailed their mortgage to Petrie at New York city; that the mortgage was then overdue ; that Petrie received a letter from the defendants which accompanied the mortgage, and which directed him to take possession of the boat; part of which testimony in this last clause was drawn out by the defendant’s counsel and no motion was made to strike out the parol evidence of the contents of the letter, which was thus far given without objection, and, therefore, is proper to be considered. Link v. Sheldon, 136 N. Y. 1; 48 St. Rep. 820. And testimony was given tending strongly to show that no assignment to Petrie of the mortgage existed at the time of the commission of the acts complained of. The evidence was clearly sufficient to warrant the jury in finding in the affirmative on the question of Petrie’s agency, and, therefore, sufficient to authorize the allowance of the testimony of the witnesses darter and Kent, showing the acts and declarations of Petrie, to the effect that immediately upon the receipt of the mortgage and letter of instructions from the defendants Petrie took possession of the boat, claiming to act as the defendants’ agent, and authorized its sale at auction under the defendants’ mortgage, and bid it off in the name of the defendants.

It being shown that the letter of instructions to Petrie authorized him to take possession of the boat, said declarations of Petrie are competent to show that he had accepted said agency, and that in the forcible holding and disposition of the boat, in defiance of the plaintiff’s rights, he held himself out as acting in the capacity of such agent, and the defendants are bound by such representations to that extent. McArthur v. Soule, 5 Hun, 63; Howard v. Norton, 65 Barb. 161; Mayer v. Dean, 115 N. Y. 556; 26 St. Rep. 375; Moore v. King, 57 Hun, 224; 32 St. Rep. 808.

The defendants are thus liable for Petrie’s said tortious act, done in the course of his agency, though it may have been in excess of the strict letter of his instructions. Lee v. Sandy Hill, 40 N. Y. 448; Fishkill Sav. Instn. v. Nat. Bank, 80 Id. 162.

The witness Eose testified that the defendant Mulhall stated to him that the defendants employed Petrie to foreclose the mortgage. The charge of the court limited the application of this testimony to Mulhall only, and excluded its consideration as to the other defendants.

The jury were properly cautioned not to consider Petrie’s statements to the witnesses Carter & Kent, relative to this agency, as evidence to establish such agency, any farther than it contradicted his testimony in that particular. It was properly received for that purpose. Tripp v. Kirmes, 16 St. Rep. 600.

Petrie committed a high-handed outrage against the plaintiff in running the boat off in willful and open defiance of the plaintiff’s rights, which he well understood, and now the defendants endeavor to screen themselves from liability by presenting a fictitious assignment of the mortgage to Petrie, thus getting behind his insolvency, in claiming that he was acting as owner of the mortgage, and not as their agent.

The damages, though large, were warranted by the evidence.

/ The motion should be denied, with costs.

Motion denied, with costs.


source: Caselaw Access Project

author: Coffin', S.

license: Public Domain

text:
    In the Matter of the Compulsory Accounting of Oscar Waring et al., as Executor, etc., Deceased.

      (Surrogate’s Court, Westchester County,

      Filed March, 1894.)

    Surrogate’s court—Execution.
    Execution to enforce a surrogate’s decree, directing the payment of money by an executor, should run against the property of such executor.

      A DECREE was made in this proceeding directing the executors to pay to Ann M. Paddock andPhebeB. Rockwell, each, the sum of $6,082.55. A transcript of the-decree was filed, and the decree duly docketed in the county clerk’s office, and thereupon executions were issued, which, among other things, directed the sheriff to make such sum, in each case, out of the goods, etc., of Javis A. Waring, deceased, and if sufficient could not be found, then out of the real property of the deceased. The sheriff seized some securities left by the testator. A motion is now made to set aside the executions.

      F. JX. JDonoghue,. for motion ; James M. Hunt, opposed.
   Coffin', S.

The executions are clearly void, and should be set aside. They should have run against the property of Oscar Waring and Wilbur F. Washburn, and not against the property of the estate. Section 2554 of the Code permits execution to be issued against the property of the party directed to make the payment. The next action authorizes, in a proper case, the surrogate to punish the party for contempt for not making the payment as decreed. That, of course, would be a proceeding against his own person. In Peyser v. Wendt, 2 Dem. 221, the surrogate of New York took the view that the execution was properly issued against, the property of, the executor and cited authorities on the subject. The court of appeals has held the same in Power v. Speckman, 126 N. Y. 354-359 ; 37 St. Rep. 474. See form of execution in Redf. Pr. (5th ed) 1009, substituting, however, the letters “ Y. Z.” for “A. B.” in last clause.

The executions must, therefore, be set aside, and all proceedings-under them consequently fall.

Motion granted.


author: Ransom, S.

text:
    In the Matter of the Will of Daniel Hyland, Deceased.

      (Surrogates Court, New York County,

      Filed February 19, 1894.)

    W ill—Execution—Hark.
    Where one of the subscribing witnesses cannot be produced and no other persons were present, the testimony of the other, if his character is unimpeached, when supported by the apparent good faith of the transaction and a full attestation clause, is sufficient to prove the making of his mark by the testator.
    Application for the probate of a will.

      Arthur Van Stolen, for proponent.
   Ransom, S.

The decedent signed his will by a mark. On the face of the paper it was properly attested by two subscribing witnesses, whose signatures follow the recitals in a full attestation clause. One of them, Metz, has since died. Lawler, the surviving witness, testifies to all the facts necessary to show the -proper execution of the instrument. The provisions of the Revised Statutes and of the Code, in respect to the execution of wills, are substantially alike. 3 Rev. St. (6th ed.) p. 59, § 11.; Code Civ. Pro. § 2620. The language of the Code is:

“ If all the subscribing witnesses, or, if a subscribing witness is dead, * * * the will may nevertheless be established upon proof of the handwriting of the testator and of the subscribing witnesses, and also of such circumstances as would be sufficient to prove the will upon the trial of an action.”

The real question to be decided is whether the evidence of Lawler, the surviving witness, of the making of the mark by the decedent, without confirmatory testimony by others, is sufficient under the law, to admit the will. The subject has been considered by various surrogates in this state. In 1867, Surrogate Tucker, of this county (In re Walsh, 1 Tuck. 132), held that a will subscribed by a mark could not be admitted if the second subscribing witness could not be produced. In 1870 the surrogate of Orange county criticised this conclusion, holding that Surrogate Tucker might have overlooked an important particular of the section of the statute which provided for the- proof “ of such other circumstances as would be sufficient to prove such will on a trial at law ; ” and he held that, if .others present at the time of the execution proved the making of the mark by the testator, it was sufficient to admit the will to probate. In re Simpson's Will, 2 Redf. Sur. 29. In 1886, in re Reynolds' Will, 4 Dem. Sur. 68, Surrogate Coffin, of Westchester county, stated that in such a case “ it is indispensably requisite that the handwriting of the testator be proven, which can be done by some one sufficiently familiar with the cast or form of the writing of the person to enable him to identify it as his, but that a cross mark has no such cast or form as to distinguish it from a like mark made by any other individual, and cannot be the subject of expert testimony ; but the difficulty would doubtless be obviated were witnesses able to testify that . they were also present, and saw the deceased make his mark.” As there was no other than the surviving subscribing witness present to prove the fact, probate was refused. In 1887, in Worden v. Van Gieson, 6 Dem. Sur. 237, the surrogate of Monroe county denied probate of a will signed by a mark. It had a full attestation clause. Smith, the attorney who drew the paper, and was a subscribing witness, was dead. The other witness testified to Smith’s signature, and said that, though the decedent told him the paper was her will, and how she made it, he did not see her sign it, nor did she tell him that she had signed it. In the absence of other testimony, the surrogate held that there was a failure of proof of either the signing or the acknowledgment of the mark. In re Dockstader, 6 Dem. Sur. 106; 19 St. Rep. 245, the surrogate of Montgomery county took a view radically different from those expressed in antecedent decisions, holding the testimony given by a living subscribing witness of the making of the mark by a testatrix was proof of her handwriting, and was sufficient In 1889, in re Phelps, 5 N. Y. Supp. 270; 22 St. Rep. 896, led by the general current of previous decisions, I denied probate to the will. The decedent was a patient in a hospital in Philadelphia, and the two subscribing witnesses were Stewart, the hospital apothecary, who was the draughtsman of the paper, and Kennedy, a patient who died before it was offered for probate. The will had a full attestation clause. Stewart was examined under a commission, on interrogatories more or less formal in their character, and Ms testimony proved the proper execution of the instrument and the making of the mark by the decedent. Following the most liberal precedent decision except in re Dockstader, supra, I held that, unless the testimony of other persons who were present at the time of the execution was given (and it was shown that there were others about at the time), probate must be denied. My decision may also have been influenced by the fact that the surviving witness was not examined in open court, and testimony given in response to formal interrogatories is seldom satisfactory to a trial court. But in 1891 I was led to, by a more thorough consideration of the question, change my view, and on the evidence of the living witness, without the testimony of others, I admitted the will of Ann Glass Neely to probate. Worden v. Van Gieson, supra, was reviewed in 1888 by the general term of the fifth department. Matter of Gieson, 47 Hun, 5; 14 St. Rep. 117. Judge Haight, in delivering the opinion of the court, said:'

“ It was therefore necessary, in order to establish this will, that the signature of the testatrix should be proved. This could be done by any person who saw her make her mark, or by her acknowledgment that she had so executed the will to each of the subscribing witnesses. As we have seen, the only evidence upon the subject is the fact of her publication of the instrument by declaring it to be her last will and testament. The question is, therefore, is this a compliance with the statute as an acknowledgment of her subscription to the will ? ” The court held that it was not, and on this ground affirmed the decision of the surrogate. But Judge Haight did not give any opinion as to the sufficiency of the evidence of the surviving subscribing witness if he had testified that all the requirements of the statute had been complied with, including the making of the mark by the -testatrix, or the acknowledgment of it as her signature. Nor was the question considered whether the attestation clause could be accepted as evidence of execution, though in several cases it had been so decided by the court of appeals. Hence, we have no decisions in our state, except the few rendered by the trial judges, and in these we have seen the conclusions in some cases are diametrically opposed, and in the others an intermediate ground is taken.

As the adjudications in other states and even in the English courts, so far as I have been able to investigate them, do not furnish a parallel case, I deem it advisable to review the subject in the light oE elementary principle, in the hope that my decision may afford a precedent that will be accepted until a higher tribunal shall find' otherwise. What constitutes “ handwriting,” in the legal sense of the term, must be considered. It is defined to be the “ cast or form of writing peculiar to each hand or person.” If the decedent, in forming his signature had made an effort to form the letters of any known alphabet, but had so far failed that no letter bore resemblance in form to the one it was intended to reproduce, and the aggregate could only be recognized as his signature by those who had seen him write, and were familiar with its general appearance, the testimony of the surviving witness, if it ■commended itself to the confidence of the court, even without an attestation clause to the instrument, would have been sufficient, with the proof of the other essential facts, to admit the paper to probate. But one who has never been taught to write cannot make letters. A person highly educated may, by physical disability, be too feeble to guide a pen. In such case the cast or form of his writing cannot be made manifest by the result of his effort. But the trend of the decisions show that the courts interpret the law in a spirit of liberality, that it may not defeat, but rather sustain, the wishes of testators, when the proofs show that the requirements of the statute in respect to execution have been substantially complied with, though in a literal sense they have not Hence, that disability growing out of illiteracy or physical weakness shall not work the deprivation of the right of a person to •execute an instrument, they have held that a mark or symbol, in whatever form, made by a testator, with or without aid, or if the physical act of making the mark was in fact wholly done by another, and he did nothing except to feebly touch the pen, or even if his name were written by another at his request, and he made no mark, the result in either case is equivalent, and may stand in place of a subscription by the proper hand of the testator. Jackson v. Jackson, 39 N. Y. 153. I have said that no appellate court in this state has declared the value of the testimony of a surviving subscribing witness to the making of a mark by a testator, unconfirmed by the statements of others present at the execution of the will; nor have I been able, in the time I have had at my disposal, to find precedents in the adjudications in other states to meet the facts of this case. An English case decided in 1843—In re Goods of Ashmore, 3 Curt. Ecc. 757—was one in which the proof of the subscriptions of the two attesting witnesses by marks were considered. The testatrix was a woman of eighty-six years of age, who, after writing her codicil, took it into another room to two servants, Anne Cole and Elizabeth Sharpe, both of whom were illiterate, and requested them to make their marks to the paper, and each did as requested in her presence. The testatrix then wrote their names opposite the marks. By mistake she wrote the wrong surname of one of the witnesses, — Elizabeth Cummins instead of Elizabeth Sharpe. Ho other persons were present at the execution to prove the making of the marks by the witnesses, nor does it appear that there was anything in the character of the marks to enable the witnesses to identify them as those they had made, though the learned judge says, in his brief published decision, that they recognized their marks. Hor was it shown that there was an attestation clause to aid probate by its recitals, and it is more than probable that the judge, in admitting the will, was moved by the fact that the codicil was in the handwriting of the testatrix ; that it bore upon its face the evidences of genuineness ; - that it was apparently executed in good faith ; and that the witnesses, whether they were really able to identify their marks or not, did recollect having made them as signatures to a paper of a testamentary nature. But, under the decisions in this state, an attestation clause is one of the “circumstances” which, with “ proof of the handwriting of the testator and of the subscribing witness,” “ would be sufficient to prove the will upon the trial of an action," and comes in aid of probate in cases of defective memory of witnesses, caused by the lapse of time from the date of the instrument to the examination of the witnesses, when there is an absence of evidence contradicting its recitals. Brown v. Clark, 77 N. Y. 369 ; In re Pepoon, 91 N. Y. 255. Nor does the value of such a clause as a factor to establish the execution of wills end with cases of the non-recollection of witnesses of the performance of the acts ñecessary thereto. In re Cotrell, 95 N. Y. 329, decided in 1884, was the case of a will to which there was no attestation clause in due form, signed by a man and wife with whom the testator had boarded. Both witnesses testified that none of the formalities required by law were complied with in their presence, and they denied that either was present at the execution or signed the attestation clause; yet the will was sustained, it being shown that both the will and the signature at its end were in the handwriting of the testator; that during his sickness he had said that his will, which he had described as executed with the two witnesses as present, was either among his papers or in the hands of his executor, and was in fact found among his papers. Though the will was in his own handwriting, it was proven that it had been more or less copied from a previous will. It was also shown to the satisfaction of the court, by the opinions of experts who had made a comparison, of the signatures of the witnesses to the attestation clause with others admitted to be theirs, that they were identical. The decision of the surrogate admitting the will to probate was sustained. In re Cottrell, the court say also:

“It was always considered to afford a strong presumption of compliance with the requirements ofthe statute in relation to the execution of wills that they had been conducted under the supervision of experienced persons familiar, not only with the forms required by law, but also with the importance of a strict adherence thereto.”

Applying these principles to the matter under consideration, I hold that the testimony of Lawler, with nothing to throw discredit upon his statement that he saw the decedent make his mark, is sufficient evidence of the fact, when considered in connection with all the circumstances attending the transaction. The written portions of the paper are in the handwriting of Metz, the deceased subscribing witness, who was a lawyer. It is intelligently drawn, is couched in the language of the law appropriate to such documents, and has a full attestation clause. An entry in the cash book of Metz shows money received for services in the matter about the time of the execution. Lawler, the living witness, testifies that the testator declared the paper to be his will, that he requested each of the subscribing witnesses, to attest the execution by their signatures, and that each did so ; and the signature of Metz is proved by the evidence of two persons. The will is a natural one.. There is nothing suspicious on its face. All the circumstances attending its original execution, as set forth in the testimony, point to the good faith and genuineness of the whole transaction. I am satisfied that no question would have been raised in respect to the sufficiency of the proof of the execution, but for the decision in re Walsh, supra, which seems, except in one instance, in re Dockstader, supra, to have more or less 'influenced the decisions of other surrogates, myself included in one instance, though Surrogate Tucker’s view has no support in the adjudications of the courts of this or other states, so far as I have been able to discover. __ While it is desirable to have the testimony of both witnesses' to prove the making of the mark by a testator, yet, when one cannot be produced, and no other persons were present, the testimony of the other, if his character is unimpeached, when supported by the apparent good faith of the transaction and a full attestation clause, I hold to be sufficient The will may be admitted.


author: Gildersleeve, J.

text:
    Louis E. Fraser et al., App’lts, v. Granite State Provident Association, Resp’t.

      (New York Superior Court, General Term,

      Filed April, 1894.)

    Pleadings—Demurrer—Foreign corporations.
    In an action against a foreign corporation, the complaint is not demurrable because of the omission of an allegation of the state, country or government, under whose laws it was incorporated.
    Appeal from order of special term sustained a demurrer, and from the interlocutory and final judgments entered thereon.

      D. M. Porter, for app’lts; Philip Carpenter, for resp’t.
   Gildersleeve, J.

Plaintiffs allege in their complaint that the defendant Granite State Provident Association “ is a foreign corporation.” This defendant corporation demurred to the complaint upon the ground “that it does not state facts sufficient to constitute a cause of action against said defendant” The court below sustained the demurrer, upon the ground that plaintiffs omitted to allege the state, country or government by or under whose laws the demurring defendant was created.

The Code of Civil Procedure (sec. 1775) provides as follows : “ In an action brought by or against a corporation, the complaint must aver that the plaintiff or the defendant, as the case may be, is a corporation ; must state whether it is a domestic or foreign corporation, and if the latter, the state, country or government by or under whose laws it was created.”

It is the contention of the respondent that the complaint omits an allegation required by law, and is, therefore demurrable.

A somewhat sharp conflict of authorities is presented by both special and general term decisions bearing upon the question we are here called upon to decide. We favor the authorities which support plaintiff’s claim that the omission is of a formal allegation, which offers no ground for demurrer. The fact omitted does not go to the cause of action, and is, therefore, not demurrable.

In Fox v. Erie P. Co., 93 N. Y. 54, the court of appeals says : “ The allegation that defendant is a corporation is no part of the cause of action, but simply relates to the character or capacity of the defendant.”

If the allegation as to the corporate character of the defendant may be omitted, and a cause of action still be stated, the defect under consideration, which is an omission to set forth the state, country or government by or under whose laws the alleged-foreign corporation was created, cannot be said to be one of substance, which can be taken advantage of by demurrer. The cause of action herein is not dependent upon the fact whether the corporation is domestic or foreign; and if foreign, it is immaterial to the cause of action to what state, country or government the corporation is indebted for its existence.

It is true that § 1775 of the Code entitles the defendant corporation to require the plaintiffs to advise it by statement in the complaint, as to what was the state, country or government by or under whose laws the corporation was created, But this right of the defendant corporation must be obtained by motion, Laney v. Laney, 33 St. Rep. 673 ; Rothschild v. G. T. R. R. Co., 30 St. Rep. 642; Hafner & Schoen F. Co. v. Grumme, 10 Civ. Pro. R. 176.

The final judgment, interlocutory judgment and order sustaining the demurrer must be reversed, with costs, and the respondent permitted to answer on payment of costs within ten days after the entry of the judgment of reversal.

Sedgwick, C. J., and Dugro, J., concurred.


author: McAdam, J.

text:
    Theresa Sasserath, Pl’ff, v. Bernhard Metzgar, Def’t.

      (New York Superior Court, Equity Term,

      Filed November, 1893.)

    Specific performance—Title.
    Specific performance of a contract to convey will not be denied, where it is reasonably certain that the vendee will get all for which he contracted, and run no possible risk in taking title.
    Action for specific performance of a contract to exchange real estate.

      J. M. Marx, (John B. V. Arnold, of counsel), for pl’ff: F. Am-stein, (A. 0. Thomas, of counsel), for def’t.
   McAdam, J.

The bill is to specifically enforce a contract for the exchange of real property. The title is unquestionable, and all the land is there. The defense urged is, that part of the northerly wall of the plaintiff’s building stands one inch upon the sidewalk or public street, and part of the easterly wall stands a little over an inch on the public sidewalk or street on that side. There can be no doubt that, on the sale of a house and lot, the vendee is entitled to receive title to the land with four walls to the house, and these should stand on the land conveyed, that the purchaser may acquire an unimpeachable title to all. In this respect, the fact that one or more of the walls may be party walls constitutes no objection. Hendricks v. Stark, 37 N. Y. 106, more fully reported, 4 Trans. App. 146. Specific performance is not to be defeated by trivial objections or defects which can be remidied or compensated for. 22 Am. & Eng. Euc. Law, p. 956. And see case of encroaching wall brought within the rule. King v. Bardeau, 6 Johns. Ch. 38. But where the walls of the house sold encroach upon adjoining property, the defect may be fatal, Stokes v. Johnson, 57 N. Y. 673 ; Smyth v. McCool, 22 Hun, 595; and see Baron v. Korn, 127 N. Y. 224; 38 St. Rep. 140; Isear v. Burstein, 24 N. Y. Supp. 918; for the encroachment may be proceeded against by action of ejectment, Bowie v. Brahe, 3 Duer, 35; and see 4 Duer, 676. Even an overhanging wall may be so proceeded against. Sherry v. Frecking, Id. 452. In Stokes v. Johnson, supra, the court charged the jury that, if they found that the house contracted to be sold.did stand upon the lot of somebody else to the extent of one and one-half inches, it was a reasonable ground of objection to the title, and this was held to be no error. In Arnstein v. Burroughs, 27 N. Y. Supp. 958, a similar encroachment of two inches was held fatal to the title offered. Where the cornices or gutters only project over, the appropriate remedy is nuisance. Aiken v. Benedict, 39 Barb. 400; Vrooman v. Jackson, 6 Hun, 326. Equity might, in any of these cases, hesitate before compelling a party to take title, where there was reasonable grounds for believing that he might he subjected to another lawsuit to which there was no defense. That risk does not enter into this contention. True, surveyors produced by the defendant have testified to the existence of the alleged encroachment; but those produced by the plaintiff have testified that the lines of the plaintiff’s building are true, and the walls all on her land, and do not encroach upon any part of the sidewalk or street. The variance in the surveys of the defendant’s surveyors shows that surveyors are liable to err, and the witnesses frankly admitted that surveys are not always strictly reliable—that they are apt to be influenced -by weather and other causes. The alleged encroachment here is so slight that it is, under the circumstances, as reasonable to believe the testimony of the plaintiff’s witnesses as those of the defendant While useful as a guide, such evidence is not infallible. All the surveyors evidently intended to be accurate, but could not have been, in view of the discrepancies which appear by their surveys. The court therefore finds that the plaintiff’s witnesses have testified truthfully, and that there was, in fact, no encroachment whatever, and, consequently, no valid reason for not consummating the exchange according to the terms of the contract. The plaintiff’s building having been erected under the direction of the building department, it is safe to assume that its inspectors would not knowingly permit a permanent encroachment to be placed upon the sidewalk-r-a circumstance which favors the plaintiff’s contention, particularly in view of the fact that the alleged encroachment is one which no private individual can remove or abate. Griffith v. McCullum, 46 Barb. 561; Adler v. Met. El. Railroad Co., 138 N. Y. 173; 52 St. Rep. 160. It is reasonably certain that the defendant will get all he contracted for, and run no possible risk in •taking title. It is in every sense marketable and free from doubt. See Button v. Webber, 17 N. Y. Supp. 463; 43 St. Rep. 56; affirmed 137 N. Y. 615; 51 St. Rep. 931. It follows that the plaintiff is entitled to a decree, the terms of which will be settled on notice.


text:
    Benjamin A. Norton et al., Pl’ffs, v. James W. Matthews et al., Def’ts.

      (New York Superior Court, Equity Term,

      Filed March, 1894.)

    Assignment fob cbeditobs—Void.
    An assignment for creditors is vitiated by a special provision as to attorney’s fees for services to be rendered after transfer.
    Bill filed by judgment creditors to set aside general assignment.

      Garter, Pinney & Kellogg, for pl’ffs ; B. P. Lee, for assignors ; G. A. Seixas, for assignee.
   McAdam, J.

The general assignment, after enumerating the trusts usually a to pay “ the just and reasonable expenses of executing the assignment” contains this special provision: “ Also, in trust, to pay Robert P. Lee, our attorney and counsel, the sum of one, hundred and fifty dollars, for counsel fee and services in preparing the assignment, and preparing bond, inventory and schedules, and legal advice connected therewith.” The instrument is attacked on the ground that this particular trust vitiates the transfer.

• A provision to pay all the just and reasonable costs and expenses attending the due execution of the assignment, and the carrying into effect the trust thereby created," is valid, Jacobs v. Remsen, 36 N. Y. 688; Iselin v. Dalrymple, 2 Robt. 142, s. c. 27 How. Pr. 137; Brett v. Peck, 1 Daly, 83. These decisions proceed on the ground that the expenses referred to were necessarily incurred prior to the assignment. But where, as in this case, there is a direction to pay counsel fees for services to be rendered after the transfer, the assignment is as a consequence made void. Hill v. Agnew, 12 Fed. R. 232 ; Matter of Gordon, 49 Hun, 370; 22 St. Rep. 402; Currie v. Hart, 2 Sandf. Ch. 353; Lansing v. Woodworth, 1 Id. 44; Brainerd v. Dunning, 30 N. Y. 211; Nichols v. McEwen, 17 Id. 23; Sheldon v. Dodge, 4 Den. 117 ; Barney v. Hempstead, 7 Paige, 570.

The special provision is open to the further objection that it requires the employment of a particular attorney, and fixes in advance his compensation without regard to the reasonableness of the charge, or whether the continued employment of the same counsel is advisable or not. In short, these considerations are, by the peremptory requirement of the instrument, taken from the control, discretion or supervision, both of the assignee and the court, and are dominated by the will of the assignor. This cannot be done. The rules which prevail in reference to allowances to trustees to reimburse themselves for expenses necessarily incurred in the execution of their trust apply to assignees for the benefit of creditors ; like other trustees, they are allowed reasonable fees paid for legal advice or assistance in the discharge of their duties, such allowance being always in the discretion of the court, and they will be reduced if, in its opinion, .they are excessive. In re Johnson, 10 Daly, 125 ; In re Levy, 1 Abb. N. C. 182. The fact that the assignor is at liberty to prepare his own schedules does not alter the legal result.

The provision in question being clearly void, the entire assignment falls with it. Burrill on Assignments, sec. 352; and cases cited.

Decree in favor of plaintiffs.


author: Pryor, J.

text:
    John D. Walton et al., Resp’ts, v. Will Rafel, App’lt.

      (New York Common Pleas, General Term,

      Filed March, 1894. )

    Assignment—Assignability.
    A contract which, by its express terms, is binding upon the legal representatives of the parties, ig assignable.
    Appeal from judgment of the district court awarding possession of property to plaintiff.
    The form of the action was, by stipulation, that of “ wrongful •detainer," the sole issue in the case being the assignability or nonassignability of a written instrument. The agreement was one made between J. D. Walton & Co., as parties of the first part, and T. & A. S. Kaliske, as parties of the second part, by which it was, among other things, provided:
    “ The parties of the first part permit the parties of the second part to establish, conduct and carry on in their present place of business what is known as a shoe department, and for such shoe department they are to have and occupy certain designated space.
    The goods sold in the so called shoe department are to be sold in the name of the parties of the first part, who are furthermore to supply without charge all wrapping material and deliver all merchandise sold in said department. They are furthermore to furnish necessary gas and heat and keep the premises in clean condition; also stationary fixtures, such as counters, shelves, drawers and the cash system at their own cost and expense. The expense in advertising the shoe department shall be equally divided between the parties. T. & A. S. Kaliske agree to carry a full assortment of goods necessary for said shoe department, to make sales thereof at reasonable prices, and to meet all reasonable competition. They are to employ the necessary help for the proper conducting of said department, but each employee is subject to the approval of the parties of the first part. The parties of the first part are to make weekly payments in current funds of the United States of the sum or amount of receipts of said department, less certain percentage herein fixed. Accounts of all sales and receipts in the shoe department are to be kept by parties of the first part, which the parties of the second part shall have the right to examine. In lieu of all charges for rent, gas and heat, and the other matters and incidentals herein mentioned, the parties of the first part are to receive the sum of ten per cent on the gross amount of all sales actually made in said shoe department The agreement is to continue for a period of five years from May 1, 1891. In case said parties of the first part should sell or otherwise dispose of their said business, or materially change the same, then the parties of _ the second part, at their election, may terminate and cancel this agreement. This agreement is to bind the parties hereto and their legal representatives.”
    The agreement further contains a covenant for quiet enjoyment, and also a provision that a breach of the terms of this agreement, or of either thereof, shall operate, at the election of the party aggrieved, as a forfeiture or termination and cancelation of this agreement.
    T. & A. S. Kaliske assigned all their rights under the contract to the defendant some time before suit brought.

      B. Lewison (K. T. Taliaferro and Max J. Kohler, of counsel), for app’lt; Ormiston & Dorsett, for resp’ts.
   Pryor, J.

The prompt disposition of the appeal entreated by counsel on the argument precludes the possibility of an opinion at all commensurate with the thoroughness of the able and exhaustive briefs with which we are favored. We must be content barely to state the grounds of our decision.

Conceding, for argument, the position of the -respondents, that the instrument under examination is not a lease, still we are unable to detect in its terms any indication of such personal trust and confidence reposed in the Kaliskes as Would- render the contract unassailable by them. Every party to an agreement confides that the other would perform it; else, surely, he would not accept the other’s engagement. Beyond this, what is there on the face the instrument to reveal a reliance on the peculiar character of theKaliskes ? Nothing is said of their peculiar qualifications, nor of their repute in the community, nor of any circumstance that would distinctively commend them to the confidence of the respondents. Neither is it apparent that what the Kaliskes undertake may not be as well performed by another as by themselves.

It may be urged that one succeeding the Kaliskes by assignment, or otherwise, might, because of the intimate relations with the respondents, afflict them with immeasurable embarrassment and injury ; since against such a contingency they have provided abundant precaution in the instrument—a security as available and effectual against an assignee as between the parties themselves. The assignee of the contract must take it as well with its burdens as its benefits. But two provisions in the instrument seem to us conclusive against the construction that the relation it creates is to subsist only between the Kaliskes and respondents. The ninth article stipulates that should the respondents sell or otherwise dispose of their business, the Kaliskes may cancel the agreement. Now, if the agreement be one of personal trust and confidence, of such sort that its obligations are reciprocally due between the parties, and to no one else, then, manifestly, whenever the respondents should retire from business, during the stipulated term, the contract would be broken, and the right of the Kaliskes to concel it would be clear and indisputable. Why, then, an express provision for such right unless upon the hypothesis that the right would not otherwise exist, i. e., except upon the hypothesis that the contract and its obligation on the Kaliskes would survive in favor of the successors and assigns of the respondents.

The twelfth article is still more explicit, to the effect that the relations and obligations it creates may subsist between the respondents and the assignee of the Kaliskes. It stipulates that “ this agreement is to bind the parties hereto and their legal representatives." If, as respondents contend, the contract was one of personal trust and confidence, then would it be terminated upon the death of either party, and would not continue to bind his legal representatives, Lacy v. Getman, 119 N. Y., 109, 115, 116; 28 St. Rep. 546 ; Greenberg v. Early, 30 Abb. N. C., 300. On the other hand it is only a contract which does not involve personal confidence, that might be enforced against the estate of the deceased party, Bish. on Cont., sec. 86. By this provision the benefits and burdens of the contract devolve upon the representatives of the parties, and “ in all cases where the executor or administrator would succeed to the rights and liabilities of a deceased party to a contract, the contract is assignable by the act of the parties.” Devlin v. Mayor, etc., 63 N. Y., 8, 16. Descendibility and assignability are convertible terms. Zabriskie v. Smith, 13 N. Y. 322.

We see no escape from the conclusion that the Kaliskes’ interest in the contract is transferable.

We perceive in the agreement no element of a partnership inter sese, nor as to third persons.

Here is no common business or common stock, but each party retains his own stock and his own business. Whatever sales are made by the respondents are made expressly “ as agents of the parties of the second part,” that is the Kaliskes; and whatever money is received by the respondents is to be paid over to the Kaliskes—less the percentage on sales, which, retained “ in lieu of rent,” is ineffectual to constitute a partnership. Richardson v. Hughitt, 76 N. Y. 55; Cassidy v. Hall, 97 N. Y., 159 ; First Nat Bank v. Gallaudet, 122 N. Y., 655, 657; 34 St Rep. 228.

From the conclusion that the interest of the Kaliskes under the agreement was assignable it results that the judgment is erroneous.

Judgment reversed and cause remanded to the court below for entry of final order in favor of appellant, pursuant to the stipulation between the parties.

Bischoef, P. J., concurs.


author: Bischoff, J.

text:
    Charles H. Colton et al., Pl’ffs, v. New York Elevated Railroad Company et al., Def’ts.

      (New York Common Pleas, Special Term,

      Filed February 1894.)

    Evidence—Expert.
    Expert testimony, in elevated railroad cases, is incompetent, except on cross-examination, to elicit opinions or facts as to fee and rental value of specific pieces of property other than the premises in suit.
    This was one of the usual actions for an injunction and damages caused by the taking of easements by the elevated railroad,

      Upon the trial of this action at the February special term, before Mi*. Justice Bischoff, certain questions were asked by plaintiff’s counsel of an expert witness as to the fee and rental value of premises along Bast Thirty-fourth street, where the property in suit was located other than the premises in suit. This evidence was objected to on the part of the defendants “ on the ground that an estimate of the fee value in other property than that in suit upon the line of defendants’ elevated railroad is contrary to the law as laid down by the court of appeals, in the Matter of Thompson, 127 N. Y. 463 ; 40 St. Bep. 200.”
    The evidence was admitted, but a motion by defendants’ counsel to strike out was afterwards entertained, argument was had and time was allowed for the submission of briefs, and thereafter the motion was granted and the evidence stricken from the record, and the court rendered the following opinion :

      J. Aspinwall Hodge, Jr., for pl’ffs; B. L. Maynard, for def’ts.
   Bischoff, J.

Under the ruling of the court of appeals in Matter of Thompson, 127 N. Y. 463; 40 St. Rep. 200,1 shall feel bound to reject evidence of the prices paid upon actual rentals and sales of particular premises, other than the premises in suit, when it is offered, •except on cross-examination. Though the case referred to holds specifically only that the prices paid upon salesof particular premises other than the premises in suit, though in the immediate vicinity, furnish no radical criterion by which to determine the value of the last mentioned premises, I am unable, upon reflection, to discover any sufficient reason for holding that the criticism of the proffered evidence by the court does not apply with equal force to rentals. The principle underlying the decision was applied in Blanchard v. N. J. Steamboat Co., 59 N. Y. 292, 300 ; Gouge v. Roberts, 53 N. Y. 619, both cases of chattel property.

With reference to my intimation that the testimony of plaintiff’s witness, Martine, concerning his opinion of the fee and rental value of particular premises, other than the premises in suit should be stricken out, I deduce the following, from principle and authority:

1. A witness engaged in the business of buying, selling, renting or appraising real estate, and shown to be possessed of the requisite qualification derived from bis experience, may testify directly to his-opinion concerning the value of the premises in suit at different periods. Clark v. Baird, 9 N. Y. 183 ; People ex rel. Mayor, etc., v. McCarthy et al., 102 N. Y. 630-639; 2 St. Rep. 546; Roberts v. N. Y. El. R. R. et al., 128 N. Y. 455, 465 ; 40 St. Rep. 454; Rogers on Expert Testimony, §155, p. 195.

2. He may likewise testify directly to his opinion whether or not fee and rental values generally and in the vicinity of the premises in suit have diminished or increased since particular periods, and to what extent. Drucker v. Man. El. R. R., 106 N. Y. 157 ; 8 St. Rep. 599 ; Golden v. Met. R. R., 1 Misc. R. 142 ; 48 St. Rep. 725 ; Sherwood v. Met. R’y Co., 36 St. Rep. 195 ; Livingston v. Met. R’y Co., 44 St. Rep. 830. The admissibility of the first mentioned testimony arises from the necessity of the case, the premises in suit being sui generis. The testimony secondly mentioned tends to prove the course of values, and is relevant and material to the question at issue, namely, whether or not the premises in suit have sustained pecuniary damage. Its competency is likewise due to the fact that the witness has special learning and skill in such matters which he has derived in his particular calling whereby he is required to keep himself informed thereof.

3. The testimony of a witness called as an expert must, however, as in the cases of other witnesses, be confined to' the points in issue, Eogers on Expert Testimony, § 88, p. 87; Stephen’s Dig. Law of Ev., art. 49. The value of particular property other than the property in suit is irrelevant, Demarest v. El. R. R., Law, p. 161; Blanchard v. N. J. Steamboat Co., 59 N. Y. 292, 300 ; Gouge v. Roberts, 53 N. Y. 619. Hence the vritness cannot be examined with regard thereto.

4. But, as with other witnesses, one called as an expert to give Ms opinion may be interrogated concerning matter otherwise irrelevant for the purpose of impeaching his credibility or disproving the accuracy of his opinion on cross-examination. The cross-examining party is, however, bound by the statements of the witness concerning such collateral matter, and may not contradict him. Rogers on Expert Testimony, § 38, subd. 4, p. 88; People v. Ryan, 55 Hun, 214, 218 ; 27 St. Rep. 916 and cases there cited ; Gandolfo v. Appleton, 40 N. Y. 533; Rice on Evidence, vol. 1, p. 632.

It follows that the testimony of plaintiff’s witness, Martine, with regard to Ms opinion concerning the fee and rental values of particular premises other than the premises in suit, was inadmissible on the direct examination, and that the objection of defendants’ counsel thereto should have been sustained. I do, therefore, reverse my ruling, direct that the objections be sustained and the testimony objected to he stricken out. Plaintiff may, of course, take an exception to this ruling.

In what I have said I do not wish to be understood that it is improper to interrogate the witness, called as an expert, on the direct examination concerning the fact of sales and rentals made by him generally or in the vicinity of the premises in suit, and to require the witness to state the particular property sold or rented by him. I mean only to exclude evidence of the sums paid upon such sales or rentals. The fact of sales or rentals by the witness goes to his competency as an expert, and evidence thereof is for that reason admissible.


author: BisCHOFF, J.

text:
    William Murray, Pl’ff, v. The Gast Lithographic and Engraving Company, Def’t.

      (New York Common Pleas, Equity Term,

      Filed April, 1894.)

    1. Injunction—Publication on portrait. ■
    A parent cannot maintain an action to enjoin the publication of a portrait of his infant child, or for damages caused thereby.
    3. Same.
    Hot can lie recover upon the ground that he is the owner of the portrait, in case he, before suit, gave it to his wife.

      Action by parent for injunction and damages.

      B. B. Foster and Isaac Angel for pl’ff; William B. Ellison, for deft.
   BisCHOFF, J.

On the trial plaintiff’s counsel contended that action is one brought to recover damages for the alleged unauthorized publication of a portrait of plaintiff’s infant daughter, " and for an injunction restraining such further publication. Consistently with that contention I have been asked to find as the only proposition of fact deemed established by the evidence that defendant has committed the act of which the claim to relief is-predicated. Assuming this theory of the complaint and action to-be correct, two insuperable objections arise to preclude any recovery. First, as conjunda persona merely, plaintiff has no right, of action for a wrong committed against the person of another, assuming the unauthorized publication of a portrait of the latter to-be an unlawful invasion of his right to the enjoyment of personal privacy. Secondly, as parent, his only right of action, growing out of wrongs committed against the person of his child, is for recovery of damages for loss of the services of the child and the expense to which he has been subjected- in effecting a cure from the injury, elements of damages which are absolutely wanting in this action ; and even in an action for loss of services, and expenses attending the cure no recovery can be had for the outraged mental sensibility of the parent. Sutherland on Damages, vol. Ill, § 952 ; Cowden v. Wright, 24 Wend. 429 ; Cuming v. The B’klyn City R. R. Co., 109 N. Y. 95 ; 14 St Rep. 788.

If, still pursuing the same theory of the action, it be insisted that-the parent has suffered a personal injury—one to his mental sensibility by the invasion of his child’s right to the enjoyment of personal privacy and the indiscriminate distribution of her portraits-—the answer is, that the law does not take cognizance of and will not afford compensation for sentimental injury independent of redress for a wrong involving physical injury to person or property-

“ The law protects the person and the purse. The person includes the reputation. The body, reputation and property of the citizen are not to be invaded without responsibility in damages to-the sufferer. But, outside these protected spheres, the law does not yet attempt to guard the peace of mind, the feelings or the happiness of everyone by giving recovery of damages for mental anguish produced by mere negligence. There is no right, capable of enforcement by process of law, to possess or maintain without disturbance ariy particular condition of feeling. The law leaves feelings to be helped and vindicated by the tremendous force of sympathy. The temperaments of individuals are various and variable, and the imagination exerts a powerful and incalculable influence in injuries of this kind. There are many moral obligations too delicate and subtle to be enforced in the rude way of giving money compensation for their violation. Perhaps the feelings find as full protection as it is possible to give in moral law and a responsive public opinion. The civil law is a practical business system, dealing with what is tangible and does not under•take to redress psychological injuries.” Lumpkin, J., in Chapman v. West. U. T. Co., 88 Ga. 763 ; 46 Albany Law J., 409.

If plaintiff is not entitled, in this action, to recover damages for the infraction of a legal right, still less is he entitled to injunctive relief. A court of equity is powerless to enforce a right or to prevent a wrong in the abstract, and, apart from an injury or damage to the person seeking relief (High on Injunctions, § 1), it cannot enforce a purely moral obligation or the performance of a purely moral duty ; and, .in the absence of actual or threatened injury to property rights, injunctive relief must be denied (id. § 23). It is fundamental to the jurisdiction of the court, in any case where it is applied to for an injunction, that some property right belonging to the party seeking the relief is in jeopardy, re Sawyer, 124 U. S. 200, 210; Kerr on Injunction, 1and an injunction was upon that ground refused where it was sought to restrain a libelous publication, Brandreth v. Lance, et al., 8 Paige, 24, and in another case, where the surviving relatives of another applied to restrain the publication of his unauthorized biography, though the latter was admitted to be wholly laudatory, Corliss v. E. W. Walker Co., U. S. Circuit Court, Mass., Aug. 1, 1893, Albany Law J.,vol. ■48, p. 431. _

_ Should it now be urged that this action was in fact brought, and that its true theory is to recover damages for the unauthorized publication of the portrait which plaintiff caused to be painted of his infant daughter, and to restrain such further publication, and that the unauthorized publication of the portrait was and is an invasion of the plaintiff’s proprietary right therein, it seems a conclusive answer that he is not the owner of the portrait, for from his own admission, it is his wife’s property.

It refrain from discussing the rights of plaintiff’s wife or infant daughter, upon the facts in evidence, for two reasons, namely, that it is unnecessary for the purposes of this action, and that the urgency of the parties for a speedy decision precludes the possibility of doing so satisfactorily to me.

Defendant is entitled to judgmem, with costs.


author: McCarthy, J.

text:
    Henry Behr et al., as Receivers, etc., Resp’ts, v. Jose M. Menendez, App’lt.

      (New York City Court, General Term,

      Filed April 23, 1894.)

    1. Insolvent corporations—Receivers—Counterclaim.
    In an action by a receiver of an insolvent firm or corporation on a claim arising after the insolvency, the defendant cannot offset a claim against the insolvent, originating before the insolvency.
    2. Jurisdiction—Equity.
    The city court of New York has no equity jurisdiction.

      Roger M. Sherman, for app’lt; Stickney, Spencer & Ordway, for resp’ts.
   McCarthy, J.

This is an appeal from a judgment on a verdict directed by the trial justice. It appears that on June 29, 1893, the plaintiffs in this action were by an order made in the circuit-court of the United States for the southern district of New York, duly appointed the receiver of Behr Brothers & Company, a corporation existing under the laws of the state of New Jersey and among other things doing business in the city of New York. The receivers gave the necessary bonds, which were approved, and duly qualified. The receivers then took possesion of the property of Behr Brothers Company and continued to conduct the business for the benefit of all the creditors. On August 22, 1893, the plaintiffs received from the defendant an order for one Boudoir upright piano, at $600, less sixty per cent, and five per cent, discount, which would make the net price $228, the amount claimed in this action. This piano was delivered in accordance with instructions. The defendant attempts to defeat this action on the ground: First, that he supposed he was dealing with a firm of Behr Brothers & Company, second, that, in accordance with an agreement previously made with such firm, he should be permitted to counterclaim or off-set the amount due him by said firm for certain advertising amounting to $150. Bebr Brothers & Company appears to have been a corporation and not a co-partnership. The difficulty throughout this case is that the defendant has mistaken his forum. This court has no equity jurisdiction and therefore cannot entertain nor grant such relief as asked for here. These plaintiffs are the principals, and this piano was, in the ordinary course of business, sold and delivered to the defendant and shipped, as said before, in accordance with his instructions. There is no dispute as to the delivery or value nor is there any-claim to the ownership of such piano by either a. co-partnership or corporation known as Behr Brothers & Company. The defendant is clearly liable. The claim upon which the off-set or counterclaim is based is one admitted to have been made with Behr Brothers & Company, either as a co-partnership or corpoiation, during its existence and long before its insolvency. This cannot be used against these plaintiffs, and the trial justice was correct in ruling out all evidence of such transaction. The question of the counterclaim was presented and was one of the issues passed upon, for defendant attempted to introduce evidence in regard to the same and, under objection, it was ruled out; to which defendant excepted. Whether these were correct, and whether this was a proper counterclaim in this action can only be determined by appeal. We are. satisfied that the trial justice was correct, and, finding no errors, judgment must be affirmed, with costs.

All concur.


text:
    Henry Behr et al., as Receiver, etc., Resp’ts, v. Jose M. Menendez, App’lt.

      (New York City Court, General Term,

      Filed April 23, 1894.)

    Appeal—Remedy.
    Where the trial court rules out the evidence offered to prove defendant’s counterclaim and passes on the remaining issues, his remedy is an appeal from the judgment and not a motion to set it aside.

      Roger M. Sherman, for app’lt; Sticlcney, Spencer & Ordway, for xesp’ts.
   McCarthy, J.

This is an appeal from an order denying a motion to vacate and set aside a judgment entered herein in favor of plaintiffs, on the ground that the same is irregular in that the issues arising on an alleged counterclaim were not tried or disposed of according to law. The judgment was entered on a verdict directed by the court. We have passed on this question in our opinion (at this general term) on the appeal from the judgment. At most, the contention set up by the defendant could have gone only to a reduction of plaintiffs’ claim as conceded by the defendant’s answer. The trial justice, having ruled out the evidence offered to prove defendant’s counterclaim, passed on the issues presented and thus there was no off-set or deduction to be made and the plaintiffs became entitled to a verdict for the full amount. The proper course left, then, for defendant, was by appeal from the judgment and not by the method here adopted, ■v-The order should, therefore, be affirmed, with costs.

All concur.


author: Conlan, J.

text:
    Bernard B. Christ, Resp’t, v. Bradbury C. Chetwood, App’lt.

      (New York City Court, General Term,

      Filed April 23, 1894.)

    Appeal—Order granting costs.
    An order allowing full costs on affirmance, by the general term, of an order, denying a motion for a. new trial on the ground of newly discovered evidence, made on a case and exceptions, will he affirmed on appeal.

      Edward Bartlett, for app’lt; Herman Q. Loow, for resp’t.
   Conlan, J.

This is an appeal from an order granted at special term, December 21, 1893, allowing full costs on affirmance by the general term of an order made at special term on the 19 th day of May, 1893, denying a motion for a new trial on ground of newly discovered evidence. The motion was made on a case and exceptions and also the affidavits as appears from the order of the-general term at fol. 8. We think this case is within the rule laid down in Whitney v. Saxe, 15 Civ. Pro. 450 ; 18 St. Rep. 1020, and the order appealed from should be affirmed, with costs.

All concur.


text:
    Augustus P. Dudley, Resp’t, v. Caroline Brinck, App’lt.

      (New York City Court, General Term,

      Filed April 23, 1894)

    Default—Opening—Discretion.
    The discretion of the court is fairly exercised in requiring the defendant to give security on opening a default, where application therefor was not made till after the granting of an order in supplementary proceedings.

      E. F. James, for app’lt; Shepard & Prentess, for resp’t.
   Conlan, J.

This is an appeal from an order entered March 5, 1894, opening a default upon the terms that the defendant, within three days after the service of a copy of the order, give a bond in the sum of $1,000 with two sufficient sureties, conditioned for the payment of any judment the plaintiff may recover in the action, said bond to be approved as to form and sufficiency by a justice of this court, and the sureties to justify on two days’ notice, if excepted to, said notice to be given within two days after notice of exception and, on failure to justify, new sureties to be substituted and justify as aforesaid, and also pay $10 costs of this motion. In case of failure to give bond as required, motion denied, with $10 costs. If bond given and sureties justify, then the order in supplementary proceedings to be vacated and cause to be placed on calendar for trial In this case the default was taken January 18, 1894, and the costs taxed January 23, 1894; the defendant’s attorney appeared on the taxation and objected to certain items in the bill, and judgment was entered on that day for $863.65 ; execution was thereupon issued and returned unsatisfied on March 1, 1894, thirty-six days after entry of judgment. An order to examine the defendant in supplementary proceedings was granted, ■returnable the 3d day of March, 1894, and was served on the defendant on. the 1st day of March, 1894. The motion to open the default was not made until after the granting of the order in supplementary proceedings. The claim on the part of the attorney for the defendant that the default was the result of business engagements and inadvertence appears to exist more in imagination than in fact; the time occupied in opposing taxation could be more usefully employed in moving to open the default. If the terms imposed appear harsh to the defendant they are the • natural and reasonable result of what appears to be inexcusable delay. We think the justice at special term fairly exercised his discretion in making the order of March 5th, and, also, in denying the application for a re-settlement of said order March 8, 1894.

Both orders affirmed, with costs.

All concur.


text:
    John Duggan, Resp’t, v. The Third Avenue Railroad Company, App’lt.

      (New York City Court, General Term,

      Filed April 23, 1894.)

    Damages—Personal injuries—Prospective.
    In an action for personal injuries, the plaintiff is entitled to recover compensation for all damages resulting from the injury, whether present or prospective.

      Eoadley, Lauterbach & Johnson, for app’lt; Louis J. Grant, for resp’t.
   McCarthy, J.

This is an appeal from a judgment recovered by the plaintiff for injuries claimed to have been received on the 18th day of April, 1888, by reason of the carelessness and negligence of the defendant in permitting a certain rail in their building at One hundred and twenty-eighth street and Tenth avenue to become loosened and raised so as to become dangerous to the life and li mb of persons passing over it. The plaintiff was in the employ oE the defendant at the time, and, while lawfully in said building, his foot caught beneath said rail and he was. thrown violently to the ground and injured. The jury found a verdict for the plaintiff for $300. There was sufficient evidence on all the questions of negligence to justify a refusal to dismiss the complaint and also to permit, at the close of the case, the same to go to the jury. They, having found against the defendant, their verdict will not be disturbed unless for good cause or errors of law. The defendant •claims that the court erred in permitting the following question and answer at folio 53 of the case : “ Q. Can you state whether, in consequence of that fracture, Mr. Duggan has or has not lost the perfect power of the member ? Defendant’s counsel objects that there is no allegation in the pleadings of permanent injuries ; allowed. Defendant excepts. A. That was what we call a permanent partial disability.” I have examined all the cases cited by the appellant on this point, and think they are neither illustrative nor analogous. See Feeney v. L. I. R. R. Co., 116 N. Y. 375-382 ; 26 St. Rep. 729 ; Schuler v. Third Ave. R. R. Co., 48 St. Rep. 663 ; Sheehan v. Edgar, 58 N. Y. 631. In Filer v. N. Y. C. R. R. Co., 49 N. Y. at page 445, Allen, J., says : “ Successive actions cannot be brought by the plaintiff for the recovery of damages as they may accrue from time to time, resulting from the injury complained of, as would be the case for a continuous wrong or a continuous trespass. The action is for a single wrong, the injury resulting from a single act, and the plaintiff was entitled to recover not only the damages which had been actually sustained up to the time of the trial, but also compensation for future damages ; that is, compensation for all the damages resulting from the injury, whether present or prospective, The limit in respect to future damages is that they must be such as it is reasonably certain will inevitably and necessarily result from the injury. To exclude damages of that character in actions for injuries to the person, would necessarily, in many cases, deprive the injured party of the greater part of the compensation to which he is entitled. Curtis v. Rochester & S. R. R. Co., 18 N. Y. 534; Drew v. Sixth Ave. R. R. Co., 26 N. Y. 49. Any evidence therefore, tending to show the character and extent of the injury and its probable results, as well as the probability of a return of the disease induced by the injury, in the ordinary course of nature, and without any extrinsic superinducing cause, was competent to enable the jury to determine the compensation to which the plaintiff was entitled. In the case of a fractured limb it was thought that the present and probable future condition of it were proper matters of inquiry.” Lincoln v. Saratoga & S. R. R. Co., 23 Wend. 425. We cannot see any harm in the answer of the court to the thirteenth request, the plaintiff called it a fracture of the radius near the wrist, the jury had all the evidence before them and, as argued by appellant, would have the right to disregard the evidence of the physician and accept the evidence of the other. We think the case was fairly and fully presented and that the trial justice substantially charged as requested. Finding no errors that would warrant a reversal of the judgment, the same is affirmed, with costs.

All concur.


author: O’Brien, J.

text:
    Maximilian J. Towler et al., Resp’ts, v. Blanche Towler, App’lt.,

      (Court of Appeals,

      Filed April 10, 1894)

    Deed—Reservation—Power in trust.
    The reservation in. a deed of a power to create a life estate in an undivided third of the land granted, in favor of a proposed life tenant, imposes no obligation upon the grantor, or upon the land, in favor of such life tenant, and creates no power in trust which a court of equity will enforce.
    Appeal from supreme court, general term, fifth department.
    Action under Code Civ. Proc. § 1638, to compel the determination of claims to real property.

      A. P. Rose, for app’lt; Charles A. Hawley, for resp’ts.

       Affirming 48 St. Rep. 39.

       Note. This decision simply‘determines the case in bar, but establishes no authoritative principle, as one of the judges dissented and three of them concur only in the result.

   O’Brien, J.

The plaintiffs are the children and sole heirs at law of John Towler, who died in the year 1889, and who, at the time of the conveyance in question, was seized of the real property described in the complaint. This action was brought to determine conflicting claims to this property under the provisions of § 1638 of the Code. On the 20th of June, 1881, the deceased was the owner in fee of the property, and in possession and enjoyment. On that day he executed and delivered to the plaintiff a conveyance of the land, to have and to hold as tenants in common, subject to a life estate which he reserved to himself, declaring that the estate conveyed to the plaintiffs should only vest in possession upon his death. The conveyance was also subject to the following reservation: v And further reserving to the party of the first part the power to devise, by last will and testament, an undivided one-third part of said premises unto any hereafter taken wife of him, the party of the first part, for and during the term of her natural life, or (at his option) to give and grant, by deed, to-said hereafter taken wife, or to any person in trust for her, the same undivided third part of said premises, for and during the term of her natural life.” On the 6th of August, 1881, after making this conveyance, John Towler, the deceased, married the defendant, and died on April 2,1889, without having, in any way, executed the power reserved to him in the deed. The sole question in the case arises upon these undisputed facts. The defendant claims that, by the reservation in the deed, her deceased husband created in her favor a special, imperative, trust power, the performance of which will be decreed in equity, and, since it was never executed, it may now be considered as decreed for her benefit, and, therefore, that she is now entitled to a life estate in aii undivided third of the premises. By section 96 of the article in the Revised Statutes in relation to powers, it is provided that “ every trust power, unless its execution or non-execution is made expressly to depend on the will of the. grantee, is imperative, and imposes a duty on the grantee the performance of which may be compelled in equity for the benefit of the parties interested.” 4 Rev. St. (8th Ed.) p. 2448. When the donee of a power such as is referred to in this section dies without executing it, equity will regard as done what it was the duty of the trustee to do, and so> the title vests in the person for whose benefit the power was created. Smith v. Floyd, 140 N. Y. 337; 55 St. Rep. 735. In this case the grantor to the plaintiffs granted or conferred no power to any third person to create, by means thereof, any future estate, but reserved that power in himself. By § 105 of the statute, the grantor in any conveyance may reserve to himself any power, beneficial or in trust, which he might lawfully grant to another ; and every power thus reserved shall be subject to the provisions of this article, in the same manner as if granted to another. We think that this reservation in the deed, at most, created nothing more than a mere power, not coupled with any trust. It is not a special, imperative, trust power, within the meaning of the statute, but a power which the grantor reversed, and could execute, or not, at his pleasure. He could not have been compelled to execute it in his life-time; and had he, before his death, conveyed all his interest in the estate to the plaintiffs, they would have taken the whole title in fee simple, unfettered by any trust or interest of any kind in favor of the defendant. An instrument creating a power, like all other instruments, must receive a reasonable construction; and the intention of the party executing the instrument is to be ascertained from the language used, the situation of the parties, and all the surrounding circumstances. Perry, Trusts, § 248.

Applying these rules of construction to the reservation in the deed, we think that the grantor never intended to, and did not in fact, create a special trust power, which was imperative, within the meaning of the statute. Had he granted this power to another, his intention to create a trust, and to make its execution imperative, would be a reasonable inference from the language, as well as from the circumstances, and the statute would then operate upon it. But here he simply reserved to himself a certain estate in the land and certain powers over it, which he always had, and never conveyed or surrendered to any one. As to every interest in the land, and as to every power over it, which was not conveyed to the plaintiffs, the deceased held it as before, unfettered by any trust power or other limitation. By reserving power to create a life estate in an undivided third of the land, be limited the operation of his grant to the plaintiffs; but he imposed no obligation upon himself, or upon the land, in favor of the defendant, that did not exist before the execution of the instrument. Any other view would require us to hold that the reservation by the grantor of this power was equivalent to the creation of a life estate in favor of the defendant. This would be giving to the deed an effect never contemplated by the grantor, and creating an imperative trust power in a manner not intended by the statute. But it is said that the power is imperative unless its execution or nonexecution is made expressly to depend upon the will of the grantee. If that section has any application to such a case as this, it may be observed that, where the reservation is read in the light of all the circumstances, it does appear that its execution or non-execution is made expressly to depend upon the will of the grantor. In conveying to his children, he reserved certain interests and powers which he always had,—that he could execute or relinquish at his pleasure, just as he could convey his life estate. He created no obligation against himself, but was left perfectly free to do what he would with his own. From the very nature of the transaction, the situation of all the parties, and the origin of the power itself, its execution necessarily depended upon the will and discretion of the person who reserved it. To say that, by reserving it, he imposed a duty upon himself with respect to its execution, is to assert that he could be compelled by a court of equity to abridge his own life estate in case its execution had been provided for by deed alone. The words of a power of this character are not always confined to what they necessarily import in their strictest legal sense,- but they are to be construed according to the intention of the party using them. Wilson v. Troup, 2 Cow. 196. This was a bare power to creat a future estate reserved by the grantor as a part of his old dominion over the lands. Such powers, as I understand it, are never imperative, hut their execution depends entirely upon the will of the donee. 2 Hill. Real Prop. 617. It is only when the power is a trust that a court of equity will decree the execution. That this was a mere power reserved, uncoupled with any trust, is shown by the fact that the deceased husband could have extinguished it by conveying his life estate to the children already entitled to the remainder. 4 Kent, Comm. 847. He could have exercised this reserved power so as to confer a life estate in one-third upon the defendant, but it was optional with him to do so, or not; and, as he died without executing the power, the defendant has no interest in the lands.

I have thus far treated the instrument as a power, within the meaning of the statute, though not imperative. The seventy-fourth section defined a “power” as an authority to do some act in relation to lands, or the creation of estates therein, or of charges' thereon, which the owner granting or reserving such power might himself lawfully perform. It is not by any means clear that the reservation in question is a power. It is true that it is such in form, as it professes to confer authority to do some act in relation to lands, or the creation of an estate therein. But his right to do all that can be referred to his original estate, and the power growing out of that title, a part of which he still retained. In this view the writing cannot be said to confer any new power, but simply retains in the grantor the part of the estate not granted, and is a reservation of a part of the estate, and not in the nature of a “power,”, as that term is used in the statute. In any view, however, that may be taken of the technical character of the instrument, the creation of a futher estate in favor of the defendant was not an imperative duty imposed upon the deceased, but remained as before the execution of the instrument, purely discretionary. These views lead to an affirmance of the judgment appealed from.

All concur.

Andrews, C. J., and Gray and Bartlett, JJ.,in result, except Earl, J., who dissents on ground that the conclusion reached in the opinion nullifies § 105 of the Code. Judgment affirmed.


author: CoNLAN, J.

text:
    Elwood S. Hand, Resp’t, v. Charles P. Rogers et al., App’lts.

      (New York City Court, General Term,

      Filed April 23, 1894.)

    1. Pleadings—Denial—Failube of peoof.
    Where the answer puts in issue the co-partnership of the defendants at the time the contract in question was made, a failure on plaintiff's part to establish such fact entitles the defendants to a dismissal of the complaint.
    2. Evidence—Co-paetnebship.
    In an action against a firm, where such relation is denied, one of the defendants may be asked on the part of the defense, as to who constituted such firm at the time in question.

      John Henry Hull, for app’lts; Charles He Hart Brower, for resp’t.
   CoNLAN, J.

This is an appeal by the defendants from a judgment entered upon a verdict directed by the trial judge. The action is brought to recover upon a contract to pay $205 in trade on the-order of the plaintiff, the consideration therefor being the delivery of five copies of the book descriptive and illustrative of the Hotel Iriquois at Buffalo, New York, containing an advertisement of the business of Charles P. Rogers & Co. the contract bearing date November 30, 1889. The allegation in the complaint charging the defendant with default is as follows: “ On information and belief that at all the times hereinafter mentioned the defendants were and still are co-partners, doing business in the city, county and state of New York, under the firm name and style of Charles P. Rogers & Co.” The answer, verified February 7,1894, admits that the defendants are co-partners under the name of Charles P. Rogers & Co., but denies each and every other allegation in the complaint; thus denying that they were co-partners in November 1889, when the contract was made. The evidence shows that Charles P. Rogers & Co., subsequent to the making of the agreement, sent to the plaintiff a copy of the matter for advertisement and it was inserted in the book, and that in May 1890, the five books called for by the contract were sent to Charles P. Rogers & Co. at New York city by the American Express Company, and the charges for transportation prepaid, and the evidence of the express company’s driver shows that the goods were delivered to Charles P. Rogers & Co. at Seventeenth street and Sixth avenue. The plaintiff offered no evidence, on the trial, to prove the partnership of the defendants and appears to have relied solely upon the admission in the answer that the defendants are co-partners as admitting the truth in the averment of the complaint that “ at all the times hereinafter mentioned the defendants were and still are co-partners ” and there is no evidence to show that •the defendants were co-partners at the time the contract was made between the plaintiffs and Charles P. Rogers & Co. or who composed the firm at that time. The answer clearly puts in issue the allegation in the complaint that the defendants were co-partners at the time the contract was made, and the failure of the plaintiff to establish the fact of co-partnership, by evidence, was such a failure of proof as to entitle the defendant to a dismissal of the complaint, and the denial of the motion made by the defendants’ counsel for that purpose, at the close of the plaintiff’s case, was, therefore, error. Charles P. Rogers was called as a witness on behalf of the defendants and asked (fol. 32): “ who constituted the firm of Charles P. Rogers & Company, at the time this agreement was made, March 30, 1889 ? This question was objected to and excluded, on the ground of the admission in the answer. This was error, the evidence was competent, under the issue framed by the' pleadings, and should have been received. The respondent insisted that the joinder of unnecessary parties, either plaintiff or defendant, is immaterial; but the authorities cited by him to sustain his proposition do not bear upon the case at bar.

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

All concur.


author: Newburger, J.

text:
    Julius H. Loewenstein et al., App’lts, v. Mac Shiff, Resp’t.

      (New York City Court, General Term,

      Filed April 23,1894.)

    1. Bill of particulars—When granted.
    The granting or denying of a motion for a bill of particulars must be determined by the facts and circumstances in each case.
    2. Same.
    The considerations, which should govern the court in granting or refusing a bill of particulars, stated. -

      Metzgar & Tabor, for app’lts; Blumenstiel & Hirsch, for resp’t.
   Newburger, J.

This action is brought to recover on three promissory notes made by defendant to the order of plaintiffs. The defendant’s answer admits the making of the notes, but sets up as a distinct defense the execution by plaintiffs with other creditors of this defendant of a composition deed. The plaintiffs in their reply, admit the execution of the composition agreement, but allege that they were induced to sign the same by reason of the statements made by defendant, that his creditors agreed to accept the sum of thirty-five cents on the dollar in full for their claims, except those who had claims for less than $100 in amount, and that no creditor was to receive more than thirty-five cents on the dollar. That the defendant entered into a secret agreement with other creditors whose claims were larger in amount than $100 to pay their claims in full, or in greater sum than thirty-five per cent., and that the defendant did pay certain of his creditors more than thirty-five cents on the dollar. The appeal is taken from an order entered herein requiring the plaintiff to serve a bill of particulars setting forth the names of each creditor and the dates and amounts of each of such payments. The order was properly made. The granting or denying a motion for a bill of particulars must be determined by the facts and circumstances in each case, and the considerations which should govern the court in granting or refusing it, are for the purpose of furnishing an adverse party with information which is exclusively in the possession of the other, and which it is proper that such adverse party should have, that he may be prepared for trial and prevent surprise.

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

All concur.


author: Herrick, J.

text:
    In the Matter of the Application of James H. Foley, for a Correction of the Official Ballot in the Town of Watervliet.

      (Supreme Court, Albany Special Term,

      Filed April 27, 1894.)

    1. Town offices—When elected.
    A town officer is elected on the day on which the votes are cast, and not on the day on which the returns are canvassed.
    3 Town meeting—What is.
    The town meeting is the meeting whereat the electors declare, by their ballots, their choice of town officers.
    3. Same—Chap. 344 op 1893.
    Chap. 344 of 1893 does not affect officers elected on the day it was signed.
    This is an application to a justice of the supreme court, under § 88 of the “ Election Law,” chapter 680 of the Laws of 1892.
    The petitioner, James H. Foley, has been nominated for the office of town clerk in the Town of Watervliet.
    The town clerk, whose duty it is to print the official ballot, refuses to print the name of the petitioner thereon, as one of the candidates, claiming that he, Mr. Le Boy, holds office for another year, and that therefore no town clerk is to be elected in the Town of Watervliet this year.
    The claim of Mr. Le Boy is, that he'was elected on the 11th day of April, 1893, to the office of town clerk for said town, and that by virtue of chapter 344 of the Laws of 1893, he holds office for the term of two years, from the time of his election.
    The order to show cause herein was returnable Saturday, April 7th at 9 o’clock A. M. the election to be held Monday, April 9th.

      JSugene McLean, for motion; Charles B. Templeton, in opposition.
   Herrick, J.

The questions arising here are.a little difficult to be passed upon hastily ; but the refusal to grant this motion will prevent any test being made as to whether Mr. Le Boy has been in fact elected for two years, or only for one, unless the electors of the Town resort to the use of a paster ballot; and then will arise the question as to whether these paster ballots are to be counted, -or rather whether the nominees for the office of town clerk printed upon the paster ballot shall be recognized by the several boards of inspectors of elections through the town; of course printing the names of candidates upon the ballots, and a declaration at the close of the election that one of them has been elected, does not deprive Mr. Le Eoy of the office if he was in fact elected thereto for two years; it will place the candidate receiving the greatest number of votes in a position to test Mr. Le Eoy’s title to office, and no one can be placed in such position unless there is a ballot-cast for him for the office.

With these considerations in view, I feel less hesitation in deciding this promptly, because it must be passed upon promptly if at all, than I otherwise would.

The first question that arises is, as to whether Mr. Le' Eoy was-elected on the 10th or the 11th day of April 1893.

The indiscriminate use of the word town meeting in our various statutes, has caused a good deal of confusion to arise, and particularly so in reference to what is called the county law. The original town meeting was a meeting of the town electors at one place for the election of town officers, and for the transaction of other town business.

In course of time it was found inconvenient to have the election at one place and compel all the voters of the town who desired to-participate to vote at one place, and that finally resulted in a’ number of the towns of the state being divided into election districts, for the convenience of the voters ; the elections were held. on one day, and the town officers met at some subsequent day to canvass the result of the election of the several election districts, and also to transact such other town business as might be brought, before them, the latter day, the day when the town officers meet, has still retained the name of town meeting in such towns, although the actual election of town officers takes place at a prior day.

These boards of town officers, so far as they have any duty connected with the election, perform the same functions that, boards of supervisors do in canvassing the returns, from the-several election districts in the county, of the election held for county officers, or that state officers acting as boards of state canvassers perform in canvassing the returns of election made by the several boards of supervisors in the state.

The election is had on the day that the votes are cast, and canvassed by the election officers and not upon the day when the result is announced by the canvassing boards.

The election is the act of the voters of the town, and takes place on the day they deposit their ballots; the town board merely ascertains the result of their acts.

That the town meeting referred to in the law relating to town officers is the meeting at which the ballots are cast, and not the day the town officers canvass the returns of the inspectors from the several election districts, is evident from § 1 of chapter 344 of the Laws of 1892, which reads as follows : “There shall be

elected at the annual town meeting in each town by ballot, one justice of the peace, one clerk, etc.”

It recognizes the fact that generally through the state the town meetings and town elections are one and the same thing, held on. one and the same day, and is the meeting whereat the electors by their ballots declare their choice of town officers. Ho ballots are cast when the town board meets and canvasses the returns from the several election districts.

If I am correct in that construction, then Mr. LeRoy was elected on the 10th day of April, 1893, the day when the ballots were cast, and not on the 11th, notwithstanding chapter 22 of the Laws of 1858 recognize the day when the town officers meet to canvass the returns from the several election districts as the town meeting.

If Mr. LeRoy was elected on the 10th day of April, 1893, he was elected for only one year, and chapter 344 of the Laws of 1893, does not extend his term of office.

But assuming his election to have taken place on the 11th day of April, 1893, then I think the statute does not apply.

Chapter 344, Laws of 1893, was signed April ilth, 1893 about 10.30 o’clock A. M., as appears from the affidavit of Mr. LeRoy.

The law does not take notice of parts of days, the whole day then must be either excluded or included; but acts of the legislature only take effect from and after their passage; as they cannot relate back to time before they are passed, the entire day then must be excluded. That being so the statute in question would not affect officers elected on the day it was signed.

There are authorities holding that the rule that the law does not take notice of parts of days will be disregarded by the courts in the furtherance of justice, and the particulor part of the day when the statute was passed will be inquired into; to illustrate, if a statute was passed before midday, and an act done after midday, it will be held in furtherance of justice that the law which was in fact passed in the morning, will relate to the act done in the afternoon.

How such authorities apply to this case I fail to see, I cannot see where justice is to be furthered by a departure from the general rule in this matter.

Mr. LeRoy sought and was placed in nomination for the office of town clerk, when the term of office was only one year, the peo- - pie of the town so understood it, they were in the act of .electing him for only one year when the statute in question was passed. What injustice or what wrong is done to him, or injustice to the people of the town by holding to the general rule under such circumstances, is difficult to discover.

While as I have said there are authorities holding that the statute will be held to relate under certain circumstances to acts done on the same day of but after the passage of the statute there are none as far as I know that hold that a statute affects an act in process of being performed at the very time of its passage, and unless there is something in the act plainly indicating that it is intended to relate to and affect acts then in process of being performed, I do not think that it can be held to relate to them.

In this case the election was actually taking place at the time the statute was signed. The polls had'been open for some hours, and it seems to me that it would be a strained construction to hold that such statute applied to the electio.n held on the 11th day of April.

For these reasons, hastily considered, I think the application should be granted, and the town clerk directed to place the name of the nominee for town clerk upon the official ballot.