author: WARD, J.

text:
    William H. H. Smith et al., Pl’ffs, v. Henry Homer, Def’t.

      (Supreme Court, Erie Special Term,

      Filed January 20, 1896.)

    Pleading—Answer—Sham.
    A verified answer, which sets up an affirmative defense cannot be stricken out on motion as sham.
    Motion to strike out defendant’s answer as sham.
    George Wing, for pl’ffs; George W. Cothran, for def't.
   WARD, J.

—This is an action where the plaintiffs seek to recover upon a promissory note executed by the' defendant to them for $766.19. The defendant answered, alleging that the note was paid, which answer he verified, as required by the Code. The plaintiffs, upon this motion, produced several affidavits which tended strongly to show that the answer was false. Ho affidavit was read in opposition to the motion. The defendant relied upon his answer as verified, arid insisted that the court had no power to strike out this answer, or, if the power existed so to do, the court should not exercise it in the any case where a defense properly pleaded was sustained by the verification of the defendant. An interesting question is thus presented. A review of the decisions upon the subject leaves the question in considerable doubt.

The plaintiffs 'rely upon the case of Robert Gere Bank v. Inman, 51 Hun, 97; 24 St. Rep. 160. In that case the action was brought by an indorsee of a promissory note, and the maker defended. The answer contained simply a denial of any knowledge or information sufficient to form a belief as to the truth of the allegations of indorsement and ownership of the note set forth in the complaint, and was verified. The special term refused to strike out the answer, which was affirmed at general term, and the court, by Follett, J., states, after reviewing the cases to some extent in this state, as the result of those- cases:

“That an affirmative answer or defense which raises a material issue may be stricken out as sham, but a general or specific denial which raises a material issue cannot be stricken out as sham if pleaded in a form permitted by the Code.”

Whether this general statement of the law by the learned court can be sustained as to affirmative defenses is the question here. It will be observed that in that case the only question before the court was whether what was equivalent to a general denial should be stricken out as sham; and the remark, therefore, as to affirmative defenses, was not necessary to the determination of that case, and was therefore obiter. This case went to the court of appeals, and that court affirmed it, upon the opinion of the general term. 115 N. Y. 650.

In People v. McCumber, 18 N. Y. 315, it was held that an answer denying a material allegation in the complaint might be stricken out as sham, though duly verified, and that an answer the falsity of which is apparent is sham, irrespective of its form as affirmative or negative. But in Wayland v. Tpsen, 45 N.Y. 281, it was held that the court had no power to strike out as sham an answer consisting of a general denial of the material allegations of the complaint; and the court there (Grover, J.), in commenting upon the practice of trying issues upon affidavits, and inferentially disapproving of it, says:

“ The moving party has only to satisfy the court by a preponderance of evidence of this character of the falsity of the plea; and it may be struck out, although specially verified by the party interposing it, notwithstanding such party may insist upon his right to a trial, when he can have the privilege of cross-examining the affidavits, and having their credibility passed upon by a jury. I think that, by the true construction of the section, the power of the court to strike out pleadings was not extended beyond what it was under the pre-existing law. That, we have seen, extended only to such affirmative defenses as were not verified by the oath of the defendant or other equivalent evidence. It may be said that a motion to strike out a pleading is not the trial of an issue joined thereby. This is literally true, but in substance, the .difference is scarcely perceptible. It calls for a determination whether the • pleading be true or false; and if found false and struck out, the defendant is as effectually deprived of any benefit therefrom as if found false upon a verdict, although he can derive no benefit from a failure to find it false, for the plaintiff will still be entitled to a trial of the issue. It will thus be seen that all the plaintiff hazards by the motion is the costs, while the defendant is precluded by an adverse result. It may be said that the power claimed will only be exercised in clear cases, where it is manifest that the desire of the defendant is only for delay, and that he is practicing a fraud for this purpose by putting a falsehood upon the record. Concede the construction of the section claimed by the respondent,- as we must to sustain the order, and its exercise cannot be confined to this class of cases. The judgment of the court must be exercised upon -the affidavits; and if satisfied of the falsity of the pleading, although sustained by opposing affidavits, it becomes a duty so to decide by granting the motion. It is in the power of the plaintiff, in every case, as was done in this, to preclude the defendant from interposing either a general denial or a denial of specific facts by verifying his complaint. * * * If the defendant commits pe,rjury in verifying the answer, he ought to be prosecuted therefor. * * * I am satisfied that the intention of the legislature in enacting the section of the Code under consideration [the Code of Procedure being the same as in the present Code] was not to confer any new power upon the court, but t,o give legislative sanction to that exercised under the existing law.”

That power, as shown in the case, was simply to strike out unverified answers alleging affirmative defenses which were shown clearly to be false. The court, in 51 Hun, 97 ; 24 St. Rep. 160, seems to have overlooked the distinction here made between a verified, affirmative answer and one not verified. The difference is manifest. In one case the plaintiff’s affidavit discloses the absolute falsity of the answer, with no counter affidavit to sustain the answer, while in the other case, and the case at bar, the answer is sustained by the affidavit of the defendant, and I am called upon on this motion to try this issue by affidavits. The danger of such procedure is well pointed out in the clear and terse language above quoted. The principle once admitted that the court may pass upon affirmative defenses upon motion where they are duly verified will leave it in the power of the court at all times, upon motion, where an affirmative defense, such as payment, satisfaction, usury, or any other affirmative defense is alleged, to deprive the defendant of his right to have his issue tried by the methods pointed out by the statute, and before a jury or a court, as the •case may warrant.

In Farnsworth v. Halstead, 10 N. Y. Supp. 763, the defendant pleaded in bar a judgment recovered for the same cause of action set forth in the complaint. An attempt was made upon affidavits to strike out this answer as sham, and the court (O’BEIEN, J.), in a well-considered opinion, held that this could not be done, and ■denied the motion.

In Webb v. Foster, 45 N. Y. Supr. Ct. Rep. 311, the action was for rent, and the answer, among other de'fenses, pleaded payment, and the superior court, general term, held that this answer could not be stricken out as sham. SEDG-WICK, J., says:

*■ I further agree with the learned counsel for the respondent that the principle stated in Wayland v. Tysen, 45 N. Y. 281, and Thompson v. Railroad Co., id. 468, prevent an affirmative defense from being struck out as sham upon affidavits. If it could be, there would be no reason why a defendant should not have the right to strike out a complaint as sham.”

It w.ill be observed in this case the question was directly up whether the defense of payment could be stricken out as sham. I hold that this cannot be done, both upon reason and authority. While it may be conceded that the case before us in an exceedingly strong one for the exercise of this power, still, if exercised, it will be like the entry of the wooden horse, full of danger, and ingraft a principle upon our jurisprudence which should be sanctioned, which would be productive of mischief, and would lead to judicial usurpation, and seriously impair the right of trial by jury and the right of defendants to that procedure in the courts of justice which entitles them to be confronted by the witness who seek to destroy their defense, and have the privilege of cross-examination.

The motion to strike out must be denied, but, as the question is not free from difficulty, without costs.


source: Caselaw Access Project

author: BARRETT, J.

license: Public Domain

text:
    The People, Resp’t, v. John O’Connell, App’lt.

      (Supreme Court, Appellate Divison, First Department,

      Filed January 24, 1896.)

    License—Master plumbers.
    A chief engineer of a hotel, who is authorized to hire plumbers to assist him in performing work which he is unable to do by himself, is not “an employing or master plumber,” whom section 5, chapter 602 of 1892, as amended by chapter 66 of 1893, requires to submit to an examination by the examing board of plumbers.

      Appeal from a judgment confirming the conviction of defendant
    William J. Fanning, for app’lt ; John R. Fellows, for people.
   BARRETT, J.

—The defendant was convicted of violating the provisions of chapter 602, Laws 1892, as amended by chapter 66, Laws 1893. Section 1 provides for the formation, in each city of the state, of a board to be known in this county as the “Examining Board of Plumbers,” and specifies how it shall be composed. Section 5 compels “any person desiring or intended to conduct the trade, business or calling of a plumber or of plumbing, in any of the cities of this state, as employing or master plumber,” to submit to an examination by the board, and makes it unlawful for him to conduct such trade, business, or calling without a certificate of the board as to his competency. Any violation of the provisions of the act is made a misdemeanor. Section 13. This act has been declared constitutional, People ex rel. Nechamcus v. Warden of City prison, 144 N. Y. 529 ; 64 St. Rep. 51 ; and the only question for us to consider is whether the defendant has violated it.

The facts are simple and undisputed. Plaintiff is, and long has been, chief engineer of the Fifth Avenue Hotel, and receives a fixed salary, as such. Among his other duties is that of hiring plumbers and steam fitters to assist him in performing work which he is unable to do by himself. Between June 1 and 19, 1894, defendant hired some five or six journeymen plumbers to make repairs on the hotel property. He was in' control, and directed the work, but, on the other hand, the men, as well as himself, were paid by the hotel. • It is admitted that he had not obtained the certificate required by section 5 of the act. Is this, within the meaning - of that section, conducting the business of “a plumber or of plumbing, * * ' * as employing or master plumber ” ? The plain reading of the statute shows that the defendant did not come within its terms. It applies only to one who—First, pursues the trade of a plumber; and, second, is engaged in such trade as an employing or master plumber. Defendant was not engaged in the trade of a plumber. That was not his business, trade, or calling. He was the engineer of a building; and although it was part of his duty to do such jobs of plumbing as might arise in that building, and, if necessary, hire others to assist him in the work, yet this did not change his real calling, or make it that of a plumber. It is a plain misuse of terms to say that, because of this incident to his real calling, he was engaged in the “ trade, business or calling of a plumber or of plumbing.” Still less was he so "engaged as employing or master plumber; not certainly as employing plumber, In view of the fact that the journeymen were employed and paid by the defendant’s own employer. But he was not even engaged as “ master plumber,” for the reason that the supervision contemplated by the statute was not called for by the character, of the work actually done. In a broad general sense, there was, undoubtedly, selection and supervision, but such supervision was not that of a master plumber. It was, in substance, the supervision of a fellow journeyman, clothed temporarily by the common master with the power of direction with regard to ordinary repairs. It was quite as though the proprietor of the hotel had himself directed the journeymen what to do, and had looked after them to see that they did it. Such an employment is clearly not within the mischiefs which the act aimed to correct. The act was intended to protect the public against people who jeopardized its health, by ignorantly pursuing a calling which called for expert knowledge. It was certainly not intended to prevent a householder or a householder’s servant from sending for and employing a • journeyman plumber to stop a leak until such householder or servant had passed a civil-service examination.

The judgment of conviction should be reversed. All concur.


author: WILLIAMS, J.

text:
    Hyman Bernstein, App’lt, v. Joseph Singer, Resp’t.

      (Supreme Court, Appellate Division, First Department,

      Filed January 24, 1896.)

    1. Slander—Character—Cross-examination.
    Cross-examination oí the plaintiff as to his reputation and character before the time of the speaking of the slanderous words, is proper, as bearing upon the credibility of the plaintiff as a witness and the amount of actual or compensatory damages, if any.
    2. Same—Rebuttal.
    Evidence of the general good character and standing of the plaintiff before the time the slanderous words were spoken, is' improper on rebuttal, but should be given as a part of the plaintiff’s case, if desired to be given, at all.
    3. Same.
    The exclusion of such evidence cannot affect the result, where the jury finds that no slanderous words were spoken.
    Appeal from a judgment for defendant, and from an order denying a new trial.
    Joel M. Marx, for app’lt ; David Leventritt, for resp’t.
   WILLIAMS, J.

—-The evidence as to whether the slanderous words were spoken as alleged was conflicting, and the verdict of the jury upon this question of fact should not be disturbed. We find nothing in the exceptions taken on the trial calling for a reversal of the judgment. The appellant complains that the defendant’s counsel was permitted to cross-examine the plaintifi as to his reputation and character before the time of the speaking of the slanderous words. Such examination was proper, as bearing upon the credibility of the plaintifi as a witness, and the amount of actual or compensatory damages, if any. The plaintifi further complains that he was not allowed, in rebuttal, to give evidence of the general good character and standing of the plaintifi before the time the slanderous words were spoken. This evidence, under the pleadings, should have been given as a part of the plaintiff’s case, if desired to be given at all. The defendant had given no evidence of the general bad character and standing of the plaintiff. In any event, this evidence could only effect the question of damages, and, the jury having found that no slanderous words were spoken, the exclusion of this evidence could not have affected the result.

The judgment should be affirmed, with costs. All concur.


author: DYKMAN. J.

text:
    In the Matter of the Petition of William Keegan for the Appointment of Commissioners in Grading Fifth Ave.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    1. Municipal corporation—Assessments—Review.
    Where no misconduct or misapprehension is charged upon the commissioners, and there is no claim that they adopted any illegal rule in making their assessments, appellate tribunals refuse to interfere upon mere questions of amount, unless the sums awarded are so inadequate or so large as to be palpably unjust.
    2. Same—Town officers.
    Commissioners, appointed to grade a street in a town, are not town officers and will not go out of office, under the statute annexing the town to an adjoining city.
    Appeal from an order, confirming the report of the commissioners appointed pursuant to the petition.
    Hubbard & Rushmore, for app’lts ; C. Fergueson, Jr., for resp’t.
   DYKMAN. J.

—This is an appeal from an order affirming the report of grading commissioners, and the controlling facts are» these : By a resolution of the board of supervisors of the county •of Kings, passed September 13, 1893, in pursuance of the authority of chapter 289 of the Laws of 1892, provision was made for the opening and draining of Fifth avenue, in the town of New Utrecht. Commissioners were appointed, and the streets were opened. Thereupon grading commissioners were appointed. When fhe presentation of their report for confirmation took place, objections were made thereto by the appellants, who were the owners of property within the assessment district. The objections were overruled, and the report confirmed, ai)d from the order of confirmation the property owners have appealed to this court. The objections are: First, in relation to the amount of the assessment ; second, as to the legality of opening a portion of the .avenue ; and, third, that the commissioners have been legislated out of office.

No misconduct or misapprehension is charged upon the commissioners, and there is no claim that they adopted any illegal rule or principle in making their assessments. Under such circumstances, appellate tribunals refuse to interfere upon mere questions of amount, unless thesumt awarded are so inadequate or so large as to be palpably unjust. No such case is presented by this record. The second objection requires no consideration. It is plainly frivolous. The third objection presents no error. These proceedings are special, and the commissioners appointed therein are not town officers, and cannot properly be denominated town ■officers. * ^

The order should be affirmed, with $10 costs and disbursements, '

All concur.


author: DYKMAN, J.

text:
    Andrew J. Nutting, Resp’t, v. Kings County Elevated Railroad Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    1. Corporations—Agents.
    _ A person who relies upon the,promise of an agent to bind the corporation must prove the agent’s authority or a ratification o£ his promise.
    3. Appeal—Evidence.
    A verdict may be set aside on appeal as contrary to evidence, though it is the second one in favor of the same party.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    Vanderpoel, Cuming & Goodwin, for app’lt ; Grout, De Fere & Mayer, for resp’t.
   DYKMAN, J.

—This action is for the recovery of the sum of $9,000, which it is claimed the defendant agreed to pay the plaintiff for his damages for the construction and operation of its railroad in Fulton street, in the city of Brooklyn, in front of his premises, and for the postponement of an argument in the court of appeals. There is no allegation in the complaint, and no proof in the evidence, of the value of the easement, or of the ■damage resulting from the construction and operation of the defendant’s railroad. The action is not based upon an impairment ■of the easements appurtenant to the plaintiff’s property, but is founded solely upon an agreement of the defendant to pay the plaintiff! the sum of $9,000. While it may be tine that the consent of the plaintiff to the construction of the road operated as an irrevocable license, and an abandonment by him of the easements appurtenant to his property, and that he was entitled to payment therefor, that fact does not affect the case as it is now presented. The plaintiff did not abandon his claim for damages, and is entitled to compensation for the consequential injury resulting to his property from the acts of the defendant, if any injury has resulted therefrom. But the damages must be liquidated and fixed in some legal mode. He might have sued the company for his damage, but he has not done so. He has brought a suit for the" recovery of $9,000, based upon a special agreement to pay him that sum. The cause was tried at the circuit before a jury, and at the close of, the testimony the trial judge submitted this, question to the jury:

“I want you to answer the following question: Did the defendant agree with the plaintiff that it would pay him $9,000 in settlement for its right of way in front of his property on Fulton street, and for his damage from the construction and operation of its road if he would consent to the adjournment of his appeal in the condemnation proceedings until such time as the appeal in the Union Elevated Case was reached? If so, you will say ‘Yes’ on that paper; if not, you will say ‘No.’ ”

There was an exception taken by the defendant to this manner of submitting the case to the jury, but the jury retired, and returned with the word “Yes” written on the paper. Thereupon the justice directed the jury to find a verdict for the plaintiff against the defendant for $9,000, with interest from November 26,1888. The verdict was then directed against the defendant for $12,000. To the direction of the verdict an exception, was taken, and a motion was made for a new trial upon the minutes, which' was denied. . The special finding of the jury is that the defendant agreed to pay the $9,000 in settlement for the right of way in front of the property of the plaintiff, and for his damages resulting from the construction and operation of the railroad, provided he would consent to the adjournment of his appeal (meaning, doubtless, the argument of the appeal) in the condemnation proceedings. Upon the appeal from the order denying the motion for a new trial on the minutes of the court, we must, examine the testimony, to find whether it is sufficient to justify the finding of the verdict. The law imposed upon the plaintiff the burden of establishing the cause of action set up in his complaint by a preponderance of proof. Having affirmed "the agreement, he was required to sustain his position with reasonable certainty by evidence which justified the court and jury in deciding in his favor. We will see if he did. But two witnesses gave testimony respecting the agreement.—the plaintiff and his lawyer. The latter said nothing about the agreement, except that Judge Shea gave him a letter, and told him to meet Judge Russell,, and tell him the agreement had been made. Of course that proved nothing, and the sole support of the verdict must be sought in the testimony of the plaintiff, to which we will now turn. He states his ownership to the property, the construction of the railroad in front of it, and that he signed a written consent therefor, and the paper was read in evidence. It left unaffected the plaintiff's right to and the extent of his compensation.

He next stated what he said to the person who solicited his signature, whose name he did not get.

He said:

“I inquired if they were paying any of the Fulton street property owners. He said they were not. I said, ‘ I am willing to sign, but if they pay any of the others I want the railroad company to pay me the same.’ He said they would.”

Subsequently he had conversation with Mr. (roodwin, the vice president of the railroad company, in which he stated to him that they had paid others, and named persons who had been paid ten per cent, on the assessed valuation of» their property, and asked that they should pay him. He said that Goodwin stated that one or two of the directors were in Europe, but at their first meeting the plaintiff’s case would be brought up, and he could rest assured that they would treat him fairly and right. That was in 1887. He saw Goodwin again some time after, and the very same thing was said then, — that they were to get together, — and finally that the plaintiff had better see Judge Shea; that he had the matter of the settlement with the property owners along Fulton street in his hands. He says he went to see Shea a few days thereafter, and told him he was going to Europe; that they had put him off from time to time; that Goodwin had promised him that they were going to treat him right. He says Shea said:

“ I understand all that. Now, you go right along to Europe and you will be paid the same as we pay the other Fulton street property owners. As much as we have paid the others, we will pay you. I asked him about ten per cent, of the valuation, and he said ten per cent, was the highest that they, had been paid.”

Then he said he went to Europe, and on liis return he saw Goodwin again. He said they had no money; “We will sweep up here, and if there is anything left we are going to do something for you.” He says he then commenced a suit to enjoin the road. That was in December, 1887. The plaintiff further testified that in the latter part of 1888 he went with his attorney to a law office in New York City, and had a conversation with Judge Shea,who told him he was ready to settle the plaintiff’s case and any others. He wanted to have the argument in the condemnation proceedings in the court of appeals postponed. This is his language:

“The case was coming on at Albany, and it came up at the" same time the Union Elevated Railroad Case was to come up; and I was to be paid, no matter how my case went, as much as anybody on Fulton street had been paid. That was his argument all through. I was to receive as much as anybody on Fulton street had been paid. The rate per cent, was named,—ten per cent, of the assessed valuation of my property. I told him how much the assessed valuation of my property was, to wit, $90,000. He said he would pay me $9,000, ten per cent, on that. I said that anything my attorney assented to I would do.”

That completed the testimony of the plaintiff on his direct examination, and it was not varied upon his cross-examination, except to make it somewhat doubtful whether the $9,000 spoken of was for the adjournment or the damages. We shall assume, in the further consideration of the case, that it was for the latter ; and that will obviate the necessity of an examination of that question, and do the plaintiff no injustice. There is nothing in the testimony which tends towards the formation of an agreement with the plaintiff, down to the second interview between him and his counsel with Judge Shea, in the latter part of the year 1888. Let us see. The unknown man who procured the plaintiff’s signature said the company would pay the plaintiff if it paid any others. That was a promise. Who made it? There is no proof either of his identity or his status. Can liability be imposed upon a corporation in that way ? The admission of the testimony was plainly erroneous, unless the authority of the person to make the statement was to be thereafter shown, and as that was not proven the testimony can have no effect in the action. In the first con-versation with Goodwin he said nothing of importance, except that the company would treat the plaintiff fairly. In the second conversation he referred the plaintiff to Judge Shea, who said nothing about payment, except that ten per cent, was the highest the company had paid. In the second conversation with Goodwin he said, if there was anything left, they were going to do something for the plaintiff. In the second conversation with Shea, in the presence of the lawyer of the plaintiff, Shea said he would pay the plaintiff $9,000; and the plaintiff then said, anything his attorney assented to, he would, and his attorney gave no consent. That testimony fails to prove an agreement. At most, all Judge Shea said constituted only an offer, which was not accepted, and in his cross-examination the plaintiff gave the reason why he did not accept the offer. He said:

“Judge Shea agree to give ten per cent., the same as the others. I was going to try and find out if there was anybody who got twenty per cent. If there was, I wanted twenty per cent. He was going to give me as much as anybody else.”

The plaintiff did not intend to close with -Judge Shea at that time. He intended to ascertain if any one got twenty per cent., and, if there was, he wanted the same, Yet he never saw Judge Shea thereafter, and never accepted his offer in any way, and he-did not find that any one had received twenty per cent, or ten per cent. It does not appear that any one was paid anything. Even between Judge Shea and the plaintiff, therefore, there minds never' met. No arrangement between them ever received the assent of both parties, and that essential requisite to a valid contract is en- - tirely wanting in this case.

Moreover, there is no proof of authority vested in Judge Shea to make any agreement that would be binding against the company. He was a lawyer, and acted as such for the defendant, but in that capacity he had no power to make contracts; and the plaintiff failed to show that he sustained any relation to the company that authorized him to make or accept any proposition which could be enforced against the company. Neither was there any proof that the company ever acquiesced in or ratified any act done or promise made by Shea in this or any other matter. There is no evidence in the case to show any action by the company in relation to the plaintiff or his property, and it cannot be made responsible without proof of corporate action of some sort, and the absence of any such action is an insurmountable obstacle in the pathway of the plaintiff. The plaintiff could not rest upon the simple offer or promise of Shea. He was bound to know the extent of his authority. Jemison v. Citizens’ Sav. Bank, 122 N. Y. 140 ; 33 St. Bep. 335 ; Wilson v. Kings Co. E. Railroad Co., 114 N. Y. 487 ; 24 St. Rep. 81. And nay, more, he was bound to prove his authority (Martin v. Farnsworth, 49 N. Y. 555), or a ratification of his acts by the company, and he made no effort to do-either. Plainly, therefore, the testimony failed to prove an agreement by the defendant, and the verdict is entirely destitute of support.

We are requested to spare this verdict because it is the second one that has been rendered in favor of the plaintiff in this action, and there are cases where such a plea has been respected. In fact, judges have said they interfere with verdicts of juries with hesitation, but such reluctance is the product of education, and not of reason. A respect amounting almost to veneration of trial by jury has been inculcated upon the minds of lawyers and judges. It has been the theme of unbounded panegyric and exalted encomium. It has been termed the “ palladium of civil rights." Judge BL AOKSTONE bestowed upon it an extravagant eulogium. But in his own country, through the reign of Queen Elizabeth and her predecessor and successor on the throne, the juries rarely withstood the crown lawyers and the partisan judges. The historian Hume says:

“ There scarcely occurs an instance during these reigns that the soverign or the ministers were ever disappointed in the issue of the prosecution. Instead of standing between the crown and the accused, the juror sought his own safety in the surrender of his victim.”

In this country the experience in criminal prosecutions has been the converse, and verdicts of acquittal have been the theme of just criticism. Modern times have witnessed an unwonted increase in actions for negligence against corporations, and experience and observation teach us those suits are instituted in reliance upon the disposition of juries to find verdicts against corporate bodies. That disposition is the weak point in the jury'system, and, with the knowledge of its existence, the appellate courts are called upon to scrutinize verdicts which are destitute of support in the evidence, or which are against the preponderance of proof, even though they are the second of their kind. Appellate tribun ials cannot abdicate their functions. The law has clothed them with the power of review, and it should be exercised with freedom. Like all human tribunals, a jury is liable to err. Jurors take no notes of testimony. They rely upon their memory, and their conclusions are usually reached in a few hours. Misconception is liable to ensue for a want of time for deliberation. In actions against corporations, the verdicts of jurors are often unsatisfactory, and plainly the result of misconception, prejudice, or partiality. We find no reason why the review of a judgment based upon the verdict of a jury should be approached or conducted with hesitation. The power vested in this court is unlimited, and what has been said is sufficient to show that it should be fearlessly exercised. There is little danger that a judgment will be reversed by an appellate court, upon a question of fact, where it is supported bv evidence, whether it be based upon the verdict of a jury or a decision of any other tribunal. Careful examination of this case, under the control of the usual respect entertained for the verdict of a jury, leads us to the conclusion that the verdict is unsupported by the evidence; and the judgment and order denying the motion for a new trial should be reversed, and a new. trial granted, with costs to abide the event.


author: PRATT, J.

text:
    John J. Leonard et al. Resp’ts, v. W. A. Whaley et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    Assignment—Claims against United States.
    Section 3477 of the United States Be vised Statutes applies only to claims that can be presently made and disputed, and will be given effect only so. far as it may be invoked, by the government to prevent a prejudice to the rights of the government. So held, in case of an agreement between contractors with the Federal Government and a creditor that the, contractors will not receive payments except in the presence of such creditor, and will immediately transfer the same to him.
    Appeal from a judgment in favor of plaintiffs.
    H. C. King and H. B. Titus, for app’lts ; J. T. Marean, for resp’ts.
   PRATT, J.

—This is an appeal from a judgment entered upon a trial before the court without a jury. The facts appear to be as follows: Whaley & Taylor, the appellants, had a contract with the United States government for the erection of two buildings at Willets Point, and the respondents, Leonard, Scofield, and Hammond, had each furnished them materials' or performed labor for them in and about the erection. Whaley & Taylor became involved, and were unable to go on. They then owed Leonard $8,741.67, Scofield $656.75, and Hammond $2,500. These three creditors then entered into the agreement in question with the appellants, Whaley & Taylor, whereby they agreed to finish up the buildings, and the appellants assigned to them, not the payments coming from the government under this contract, but the proceeds of such payments when received,—i. e. the money or checks which might be paid to them by the government; and they further made these executory promises : “That they would not receive payments except in the presence of the respondents, or some of them; that they would attend in person, upon notice to do so, at the quartermaster’s office at Willets Point, and receive payments or drafts, and would immediately indorse and deliver the same over to the respondents.” They further agreed that such promises might be specifically enforced in equity or by injunction or other appropriate process. The respondents were to apply the .moneys received by them to their reimbursement for the expense of completion. The value of their services was also to be retained, and the remainder applied pro rata to the old debts above mentioned, and any residue over to the appellants. The respondents completed the buildings. All payments except the final one were -collected by the appellants, and paid over to the respondents, and applied by them towards the expenses of completion, except some portion thereof, which they, as matter of grace, paid to the appellants,- and a considerable sum, as yet unascertained, is still due the respondents, besides the old-debts, which are wholly unpaid. The final payment of $18,350 was due from the government, and the money was in the hands of the quartermaster at Willets Point on November 10, 1893, ready to be. paid. All parties attended on that day at the office of the quartermaster, who was about to draw and deliver checks for the amount due, when the appellants declared that they would not indorse and deliver them to respondents, as agreed.

The court below gave no effect to the agreement as an assignment, but directed a specific performance of the contract. This was in accordance with the contract, as there was contained in it -an executory promise to immediately indorse and deliver all checks which might be received, and the contract was one that in ■equity might be specifically enforced. This could be done for the protection of the plaintiffs, without giving any effect to the agreement as an assignment of the claim.

The appellants claim that the court below had no' jurisdiction of the subject-matter of the action, and that the contract of assignment was void, as coming within the prohibition of section 3477, Rev. St. U. S. We do not think the matter to be fully within the purview of the statute. The intent of the purview was for •the convenience and protection of the government, and not as a shield for those who would break their contracts and defraud their ■creditors. o It applies only to claims that can be presently made and disputed (Hobbs v. McLean, 117 U. S. 569-575), and will be given effect only so far as it may be invoked by the government to prevent a prejudice to the rights of the government. Bailey v. U. S., 109 U. S. 432 ; Trust Co. v. Shepherd, 127 U. S. 494, 505, 506 ; Goodman v. Niblack, 102 U. S. 556. In the latter case, the court, in rendering the opinion, said the sections were passed “in order that the government might not be harassed by multiplying the number of persons with whom it had to deal, and ■might always know with whom it was dealing, until the contract was completed and settlements made. Their purpose was not to dictate to the contractor" what he should do with the money received on his contract after it had been performed.” This case •seems to render nugatory the authority of Spofford v. Kirk, 97 U. S. 484, as favoring the contention of the appellants.

This judgment in no manner interferes with any government ■officer, but only orders the defendants to turn over to plaintiffs, as they had agreed, the final payment when paid to them.

Perhaps it .was not necessary to appoint a receiver of the fund, but we see no just cause of criticism in that, as it protects the rights of all parties, and is really a favor to appellants.

The judgment is just,' and in the interest of good morals, as preventive of an outrageous fraud.

Judgment affirmed, with costs. All concur.


text:
    Emily Moses, App’lt, v. Newburgh Electric Railway Company, Resp’t,

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    1. Deposition—Physical examination of plaintiff.
    Where, in an action to recover damages for personal injuries, the moving affidavit states, that defendant is ignorant of the nature and extent of plaintiff’s injuries, which is not contradicted, it makes a good cause for allowing the physical examination of plaintiff before trial.
    2. Same—Affidavit.
    The affidavit for such examination need not allege that the defendant intends to use the information on trial.
    Appeal from an order directing that plaintiff submit to a phyiscal examination.
    Guggenheimer, Untermyer & Marshall, for app’lt ; William D. Dickey, for resp’t.
   PRATT, J.

—The action is to recover damages for personal injuries, and the moving affidavit states that defendant is ignorant of the nature and extent of plaintiff’s injuries. That is not contradicted, and it makes a good cause for allowing the examination. The objection that there is no allegation that defendant intends to-make use of the examination upon the tfial is frivolous. ■ Obviously, a party cannot have any intelligent purpose as to whether-he will use testimony until he knows what it is to be. If it proves favorable to the party by whom it is taken, it will ordinarily be read by that party; if unfavorable, it will ordinarily be read by the other party. In the present case, if, on the trial, the plaintiff’s witnesses testify to the same facts that this examination discloses,, there will be no need to produce it.

Order appealed from affirmed, with $10 costs and disbursements.


text:
    Daniel Mahoney, Resp’t, v. James McWalters et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    1. Fraudulent conveyances—Mortgage.
    A mortgage, taken by a contractor in his wife’s name for money to become due under a building contract, is void as against subcontractors and material men.
    2. Mechanic’s lien—Rights between defendants.
    In a proceeding to close a mechanics’ lien, one defendant can have no relief against his codefendant, unless he serves him with notice of trial.
    Appeal from a judgment in favor of plaintiff.
    Charles L. Pashley, for app’lts Reddington and McWalters ; Cannon & Atwater, for app’lts John C. Orr & Co. ; Michael J. Scaulan, for app’lts Fitzpatrick & McCauley ; Robert J. Mahon, for resp’t.
   DYKMAN, J.

—This is an appeal from a judgment entered upon a decision of the court after trial at special term, setting aside a bond and mortgage executed by the defendant Reddington and wife to the defendant McWalters. The facts are these: The defendant Reddington is the owner of the premises on the corner of Washington and Vernon avenues in Long Island City. In the spring of 1894 he employed the defendant James McWalters to erect the building on those premises at the agreed price of $6,000. During' the progress of the work he paid McWalters $2,000 in cash. In order to raise the other $4,000, he made application for a loan for that amount, to be secured by his bond and mortgage covering the same premises. That application was rejected, and thereafter McWalters agreed to take a mortgage on the premises for $4,000 in satisfaction of the balance due him on the contract. By Me Walter’s direction this mortgage was executed to his wife, Mary McW alters, on the 26th day of September, 1896, and a receipt in full was given to Reddington by McWalters. The plaintiff is a subcontractor who did the plastering on the building under the contract with McW alters, and claims the sum of $521 to be still due him for his work. The defendant Mathews is a subcontractor, and filed a lien for $252.42 against the premises. The defendants John 0. Orr & Go. had-furnished McW alters with material which he used in the erection of this building, amounting to $849.72. The mortgage of Reddington was made and received in payment of the balance remaining unpaid upon the contract for building his house, and the insertion of the name of Mary McWalters was by the direction of James McWalters, the creditor, and he thereupon satisfied his claim. That transaction would have been valid, as between the parties, if the rights of creditors had not intervened; but it operated as a fraud upon other creditors, and as to them it was void. It put $4,000 of the property of Keddington beyond the reach of the creditors of McWalters, of whom the plaintiff is one. McW alters had built a house for Reddington at a cost of $6,000. The plaintiff did the plastering, and Mathews and John 0. Orr & Oo. furnished materials for the house. They were all creditors of McWalters, and were also entitled to acquire liens upon the property ; and the postponement of them, and their subordination to the mortgage, was a fraud upon their rights, and the wrong was aggravated by placing tho mortgage itself beyond their reach. Under such circumstances, the mortgage was inequitable, and could not be permitted to .stand in the way of the creditors. Its destruction let in the liens in their regular order, and justice was wrought out.

There is also an appeal from an order denying a motion to amend the judgment entered into the action canceling the lien of the Ulster Bluestone Company, one of the defendants in the action. Ueither the appellants nor any party to the action, except the plaintiff, served notice of trial upon the stone company. They were not, therefore, in a position to make any move against that company'upon the trial. The plaintiff made none, and asks nothing now, except to have the judgment stand as entered. There is no authority for cancellation of a lien in this way, and the motion was properly denied.

The judgment must be affirmed, with costs, and the order must be affirmed, with $10 costs and disbursements.


author: BROWN, P. J. PRATT, J.

text:
    Paul Halpin, App’lt, v. Mutual Brewing Company et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    1. Corporations—Receivers.
    The creditors of a corporation for which a receiver has been appointed will not be enjoined from suing the corporation, where such receiver does not proceed within a reasonable time to liquidate its indebtedness.
    2. Same.
    An appeal for the purpose of endeavoring to effect some settlement of the claims of creditors affords no justification for the continuance of a receivership, or of an injunction against creditors’ prosecuting their just ■ claims.
    Appeal from an order, permitting the receiver to pay out of corporate funds in his possession the amount of a certain mortgage and also certain judgments, and providing that, if such payments were not made in sixty days, the sheriff may proceed under such execution theretofore issued on such judgments and permitting foreclosure of said mortgage.
    Benjamin Yates, for app’lts ; C. J. G. Hall, for resp’ts.
   BROWN, P. J.

—The point made by the appellants, that the original orders authorizing the receiver to pay the judgments in favor of the West Side Bank and Nr. Nester, and the mortgage held by Mr. Tietjen as trustee, were granted ex parte, needs no consideration, for the reason that the order appealed from was made after the hearing of a motion to vacate said ex parte orders, upon which motion all parties entitled to notice were heard, and the facts were fully presented to and considered by the court. That motion was treated as an original application, and the order made thereon is the one from which the appeal now before us was taken. We are of the opinion that the order is fully warranted by the facts of the case.

The counsel for the appellants has directed his main argument to the justification of the appointment of the receiver, and to the demonstration that distribution of the corporate property among the credits can also be made in this action. It is sufficient answer to the latter proposition that- no attempt has been made in this action by the plaintiff or the receiver to provide for the payment of the creditors. Although the decision in this action was filed in March, 1894, the judgment was not entered until the order appealed from was made; and during this period of fifteen months the creditors were restrained from compelling payment of their claims, while the business was being conducted by the receiver. It is very evident from the moving affidavit that this delay was for the purpose of endeavoring to effect some settlement of the claims of creditors. But such a purpose affords no justification for the continuance of a receivership, or of an injunction against creditors’ prosecuting their just claims. If it was the purpose of the directors that the corporate property should have been distributed among its creditors, they could at any time have applied for a voluntary dissolution of the corporation. The validity or propriety of the appointment of the receiver is not assailed. It was justified before the trial of the action by section 1810 of the Code, and properly continued after the trial to carry the judgment into effect. Section 713. But the action did not contemplate a distribution of the corporate assets among its creditors, nor a dissolution of the corporation. It was authorized under sections 1781 and 1782 of the Code of Civil Procedure. The complaint alleged waste of corporate assets, and wrongdoing and mismanagement on the part of three of the directors, and others confederating with them, and sought an accounting from said directors, and a restraint of the alienation of corporate property. Before the case was decided the offending directors had retired from office, and others had been elected in their place, and the judgment affords all the relief that the corporation can have against its offending officers. There is no finding in the decision that the corporation is insolvent, and no adjudication of that fact, and there is no statement to that effect in the affidavit of the receiver. Under this condition of affairs, it is difficult to see why the receivership is continued. The object of the action has been accomplished. Creditors should now be permitted to assert their claims, and pursue such remedies as the law affords them. .

The case of Duncan v. George C. Treadwell Co., 82 Hun, 376 ; 63 St. Rep. 790, is quite like the case before us, and sustains the order appealed from.

It should be affirmed, with $10 costs and disbursements.

DYKMAU, J., concurs.

PRATT, J.

(dissenting). —This action is brought under sections 1781 and 1782 of the Code, and the appointment of a receiver was therefore within the power of the court. Section 1810. Under section 1806, the court had power to restrain the creditors from maintaining actions which may lead to inequitable results; and, under section 1807, it may require the creditors to present their claims for adjustment, and may distribute the assets of the corporation. That the action is not brought to dissolve the corporation does not determine that its property may not be sold, and the proceeds distributed. Code, §§ 1784-1793. See, also, People v. Ballard, 134 N. Y. 269 ; 48 St. Rep. 166 ; Osgood v. Maguire, 61 N. Y. 524. As the court has the power to distribute the corporation property equitably, and has already interfered by injunction to prevent its appropriation by certain, of its execution creditors, we think it should continue that .course, and restrain the other execution creditors. As the orders now stand, certain creditors who. recovered judgments and executions in due course of law are restrained from enforcing their claims. Other creditors, no more meritorious, and whose judgments are subsequent, "have been allowed to issue and levy executions on the property in the receiver’s hands. We do not think this orderly or equitable. In effect, it works a preference, and probably full payment, of certain creditors, while others, equally meritorious, are in effect postponed, and incur the risk of remaining entirely unpaid. Property in the hands of a receiver is in the custody of the law, and it is not easy to see why another officer of the court should be called in to dispose of it. A question somewhat similar is discussed in White v. Frankel, 33 N. Y. Supp. 1, and a conclusion reached that the-possession of the receiver should be maintained. The reasoning of the case is applicable here. We think that, so far as the orders appealed from sanction the levy of executions upon property in the hands of the receiver, they should be modified. Whether the foreclosure of such part of the chattel mortgage as'was found valid shall be allowed to proceed is a different question, and, after some hesitation, we think that, so far as the orders appealed from allow its enforcement, they may be affirmed.


text:
    Bank of Port Jervis, App’lt, v. Charles T. Darling et al., as Executors, etc., Resp’ts.

      (Supreme Court, General Term,, Second Department,

      Filed December 2, 1895.)

    1. Banks—Defective incorporation.
    The state alone can object that an affidavit of the payment of. capital stock of a bank was not filed as required by law.
    2. Bills and notes—Endorsement.
    A person, who endorses a promissory note for the purpose of' giving credit with the payee, becomes liable to such payee.
    3. Same—Protest.
    The sending of a notice of .protest by mail, addressed to the estate of a deceased endorser at the place where he resided at the time of his death, is sufficient.
    Defendant appeals from a judgment in favor of claimant, enterered on the report, and claimant appeals from an order denying costs and an additional allowance-to the claimant, and from part of the judgment.
    Thos. J. Ritch, Jr., for claimant ; Thomas S. Mount (Thomas Young, of counsel), for def’ts.
   DYKMAN, J.

—The plaintiff in this action presented a claim to the defendants, based upon a promissory note, of which the following is a copy:

“ $2,900. Port Jervis, New York, Jan. 2, 1894.
“Thirty days after date, I promise to pay to the order of Bank of Port Jervis twenty-nine hundred dollars at the bank of Port Jervis. Value received,
WILLIAM 0. GOULD.”

Before the note was. delivered to the plaintiff, it was indorsed by the defendants’ testator, Jeremiah Darling, for the purpose of giving the maker credit with the bank. Darling died on the 18th day of January, 1894, and letters testamentary were issued to the defendants, as his executors, on the 12th day of February, 1894. The note fell due on the 5th day of February, 1894, and was protested for nonpayment on that day, of which the maker was duly notified. The notices of protest were made by the notary who protested1 the note,— one to J. Darling, and one to the estate of J. Darling. Both notices were inclosed 'in an envelope, and directed to the estate of J. Darling, Stony Brook, L. I., his place of residence before he died. The president of the bank had knowledge of the death of the indorser, but failed, upon inquiry, to ascertain whether he left any will or had any personal representative. The notices of protest were not received by the defendants. On the loth day of February, 1894, the cashier of the bank called upon Charles T. Darling, one of the executors; and, after ascertaining that he was one of the executors, left with him a notice of the protest of the.note. When the note became due, the maker, Gould, had a general deposit balance in the bank of $123.78; and on February 14, 1894, he deposited $302.40, without any special direction as to the application thereof. On the 15th day of February, 1894, the bank applied both of these sums to the payment of notes indorsed or made by Gould, which fell due after February 14, 1894, and checks of Gould were given therefor. The claim was rejected by the executors, and referred to a referee for a determination, under the statute. The referee decided in favor of the plaintiff, but deducted the sum of $123.78 from the claim, and directed judgment for $2,776.22, with interest. Costs were denied to the plaintiff by the court, and the plaintiff 'has appealed from that order, and also from so much of the judgment as fails to allow the plaintiff $123.78, applied by it to payment of other paper of Gould. The defendants have appeal from the judgment.

The first question presented by the defendants has reference to the corporate existence and capacity of'the plaintiff, the contention being that the bank has ceased to exist. The facts upon which this contention is based are these : In the year 1889 all acts requisite and essential to the organization of a state bank were done by it, except the filing in the Suffolk county clerk’s office, within the year, of an affidavit of the payment of the capital stock, as required by the statute. Such an affidavit was filed with the bank superintendent on the 18th day of July, 1889'; and thereupon the bank commenced business, and has continued to do the usual business of banking, such as receiving deposits of money, discounting notes and bills, and making collections. The bank had many transactions with both Gould and Darling besides the one involved in this case. It was a de facto corporation, and neither the defendants nor any other persons who have contracted obligations with it can be permitted to attack any defect in its organization to affect its capacity to sue thereon. Such objections are only available on behalf of the sovereign power of the state, and cannot be raised by private persons to avoid a just liability. McFarlan v. Insurance Co., 4 Denio, 392 : Ang. & A. Corp. § 80; Bill v. Turnpike Co., 14 Johns. 416. The filing of the affidavit in the office of the county clerk of Suffolk county is-not made a prerequisite to the assumption and exercise of corporate powers. The statute itself contemplates such exercise for a whole year before such filing is required. The defendants cannot' therefore escape liability upon that ground.

The next question has reference to the peculiar form of the note. It is made payable to the bank, and upon the face of the paper itself, the presumption would arise that Darling intended only to assume the liability of a second indorser. For the purpose of overcoming that presumption, the plaintiff proved, and the referee found that, before the delivery of the note to the bank, the testator of the defendants indorsed the same for the purpose of giving credit to the maker, Gould, with the bank, and that thereafter the bank discounted the note. The defendants* testator, therefore, became liable to the bank as indorser of the note.

The defendants further insist that no sufficient notice of protest of the note was given. The facts upon which the question depends "for determination have been recited. The demand of payment was sufficient, and no personal notice of the nonpayment could have been given, because the indorser was dead. The notice was sent to his place» of residence, and although, in such cases,- notice is required to be left at the domicile of the-deceased, we are not prepared to hold the notice made here as insufficient. Stony Brook was the domicile of the deceased indorser, and notice was sent there. True, it was directed to his; estate, but no other direction would be more likely to bring it to his family. His executors were not known to the bank, and, as soon as they were ascertained, they were notified. The law never requires impossibilities. Reasonable diligence is all that is required. Ho evil has resulted from the course pursued, and the-law does not exact every possible exertion which might have been made to effect notice of the dishonor of the paper.

In the case of Willis v. Green, 5 Hill, 232, which was much like this case, it was said in the opinion :

“ If the notice relied upon for that .purpose had been sent to-the proper place, no doubt it would have been sufficient, under the circumstances of this case, though directed to Johnson after his death.”

Stewart v. Eden, 2 Caines, 121; Bank v. Birch, 17 Johns. 25.

Upon reason and authority, the notice must be deemed sufficient.

In relation to the appeal of the plaintiff, our conclusion is that the sum of $123.78 was improperly deducted from the amount, due, and the judgment must be modified by the addition of that, sum to the amount thereof. Costs were properly refused to the plaintiff.

The judgment is to be modified in accordance with this opinion, and, as so modified, affirmed, with costs.

All concur.


author: DYEMAIST, J.

text:
    Ernest F. Bliss, Jr. et al., Resp’t, v. Frank C. Raynor, Impleaded, etc., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    Exempt pbopebty—Insubance.
    The proceeds of a policy^ of insurance on exempt property are exempt/ though the debtor at one time assented to its application to the debt.
    Appeal from an order, requiring the insurance company to pay to the receiver of the property of defendant one-half of the amount-due on a judgment, and from an order denying the application, of said defendant to vacate and set aside such order.
    Timothy M. Griffing, for app’lt ; Walter H. Jaycox, for resp’ts.
   DYEMAIST, J.

—This is an appeal from an order of the county court of Suffolk county requiring two insurance companies to pay to the receiver all the property of the defendant, the amount due from each company being over and above one-half of the amount-due upon a judgment in favor of one Henry Sayre, and from an. order of the county court denying the application of the appellant to vacate and set aside the first-mentioned order. The sole question involved is whether the sum of $149.90 due the defendant-Frank 0. Baynor from two insurance companies upon an insurance of exempt property shall he paid to the receiver in supplementary proceedings in this action or to the judgment debtor. The pretense for paying the money to the receiver is that the judgment debtor, once expressed his willingness to have it so applied. A sufficient answer to that position is that the defendant has repented, and now claims his legal rights, and no ocie has been or will be injured by the change. The exemption from seizure and sale of certain property of a householder is "a humane provision in favor of families and it is the duty of courts to enforce its execution. The family of the judgment debtor is entitled to the protection and benefit of this benign statute, and these orders defeat that intention.

The orders should be reversed, with $10 costs and disbursements, and the money in question directed to be paid to Frank 0.. Baynor.

All concur.


text:
    Philadelphia Griffith, Resp’t, v. Staten Island Rapid-Transit Railroad Company, App’lt.

      (Supreme Court, General Term, Second Department.

      Filed July 26, 1895.)

    Appeal—Motion to dismiss.
    The failure of defendant, at the close of plaintiff’s case, to move for a dismissal or for direction of a verdict, is a concession that there is then evidence sufficient to carry the case to the jury.
    Appeal from a judgment entered on a verdict in favor of plnintiff, and from an order denying a motion for a new trial.
    Tracy, Boardman & Platt, for app’lt; Grout, DeFere & Mayer, for resp’t.
   PRATT, J.

—The only points made by appellant relate to the sufficiency of the evidence to prove freedom from negligence by plaintiff, and the fact of negligence by itself. These points arise upon appellant’s motion to dismiss the complaint when plaintiff rested, and the motion to set aside the verdict and for a new trial. There was no motion to dismiss at the close of the case, nor was there any request for a direction. If plaintiff’s evidence was insufficient on the question of her own or defendant’s negligence, the point is not available, provided the case on all the evidence was for the jury. It seems to have been regarded by defendant. Its failure .to move to dismiss, or for direction of a verdict, has been held to be a concession that there was then evidence sufficient to carry the case to the jury. Barrett v. Railroad Co., 45 N. Y. 632. This rule seems to make out a waiver of the exception for denial of the motion to dismiss; that is to say, it is a concession that the case was so changed since that motion was made that the case had come to be one for the jury. Id. See, also, Sternwald v. Siegel, 27 N. Y. Supp. 375; Eckensberger v. Amend, 7 Misc. Rep. 452; 57 St. Rep. 569; Id., 10 Misc. Rep. 145; 62 St. Rep. 479. With this concession before us, we cannot review the denial of the motion to set aside the verdict. Even if it were otherwise, we think that, although the case was a close one on the questions of negligence, it was properly, as it certainly was fairly and carefully, submitted to the jury by the learned trial judge.

The order of judgment is affirmed, with costs.


text:
    People ex rel. John A. Fuhry, App’lt, v. Board of Excise of City of Brooklyn, Resp’t.

      (Supreme Court, General Term,. Second Department,

      Filed December 2, 1895.)

    Excise—Refusal to issue license.
    If the court cannot determine that the application for a license has been arbitrarily denied, or has been denied without good and valid reasons therefor, the issuance of the license will not be commanded. So held, in the case of a refusal of the commissioners to permit the assignee of a license to sell liquors at a place different from that named in the license.

      ■ Certiorari to review the action of the board of excise in the city of Brooklyn in refusing to grant relator a license to sell intoxicating liquors.
    Francis A McCloskey, for app’lt; Jacob Brenner, for resp’t.
   DYKMAN, J.

— On the 25th day of October, 1894, the commissioners of excise of the city of Brooklyn granted a license to F. W. Coddington to sell spirituous liquors at 156 Conover street, in that city, for one yesr. That license seems to have been assigned to the relator, but the fact is clearly stated. On the 24th day of December, 1894, the relator made an application to the excise board for permission to carry on the business under Codding-ton’s license at No. 313 Bedford avenue, in the city of Brooklyn, for the balance of the term of such license, upon discontinuance of the business on the premises for which the license was originally granted. The application was denied, and the relator instituted this proceeding by a certiorari to review the action of the board which resulted in such denial. The writ is authorized by section 24 of chapter 401 of the Laws of 1892. The case was heard before a justice of this court, and decided against the relator who has appealed from the order.

Section 24 of the statute which authorizes the writ closes with these words:

• _‘Tf such court shall upon the hearing determine that such application for a license has been by such board arbitrarily denied, or denied without good or valid reasons therefor, such court may make an order commanding such board of excise to grant such application and to issue a license to such applicant upon the payment of the proper license fee.

Although the converse of the rule is not laid down, yet it is to be assumed that if the court cannot determine that the application for a license has been arbitrarily denied, or has been denied without good or valid reasons therefor, the issuance of the license will not be commanded.

Boards of commissioners of excise are organized for the purpose of regulating the sale of liquors, and they are clothed with power and discretion to determine whether a license shall be issued to a particular person or for a specified locality. So long as their action is within the scope of their powers, and is just and reasonable, and free from oppression, it is subject to no judicial control. It was not the intention of the legislature to transfer the discretion vested in the boards of excise of this state to the courts or judges. The purpose of the statute is to prevent arbitrary and unreasonable action, and afford relief where it has been exercised. There is nothing in the record of this case to show arbitrary, unreasonable, or even inconsiderate action. On the contrary, the proceeding, from first to' last, was marked by- deliberation. A full opportunity was offered for a public hearing, and a case was presented to to the court for the exercise of its judgment. The facts deducted are amply sufficient to exculpate the commissioners from the charge of arbitrary or unreasonable action, and the order should be affirmed, with costs. .

All concur.


text:
    Elizabeth Baldwin, App’lt, v. William Henry Smith, Individually and as Executor and Trustee, etc., et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    Former adjudication—Decree of surrogate’s court. '
    A decree of a surrogate’s court in judicially settling the executor’s account and deciding adversely to plaintiff’s claim, where the surrogate had jurisdiction of the parties and of the subject-matter, bars an action to compel an executor to account for money belonging to his estate.
    Appeal from an interlocutory judgment overruling a demurrer to part of the answer.
    Mansfield Compton, for app’lt; Albert W. Seaman, for resp’t.
   DYKMAN, J.

—This is an appeal from an order overruling the demurrer of the plaintiff to a part of the answer of the defendant. The action is brought against the defendant as executor, and against other persons interested in the estate of Jacob Baldwin, deceased. ■ The plaintiff demands, in her prayer for relief, that tne defendant, Smith, as executor, account for all the property which came into his hands as such executor, both real and personal, and also the proceeds of the sale of real estate sold by him under the power of sale contained in the will of the testator, together with the rents and profits of the land so sold. The facts are briefly these: On the 5th day of December, 1894, thp executor filed a petition in the surrogate’s court of Queens county, praying for a judicial settlement of his accounts as executor, and final discharge. The citation was issued upon such petition, returnable on the 31st day of January, 1895, and directed, among others, to the plaintiff, and it was returned with proof of personal service upon her. On the return of the citation, on the 31st day of January, 1895, the plaintiff appeared by counsel, and filed objections to the account, by which objections the same claims were made as are now set up in the complaint, and such proceedings were had that on the 28th of February, 1895, a decree was entered, by which it was adjudged that the plaintiff had no interest in the estate of the deceased, and the decree also overruled all the objections filed by the plaintiff. In the meantime, and after the commencement of the proceedings, and after the citation had been personally served upon the plaintiff, she commenced this action by a summons and complaint. The defendant, Smith, by his amended answer, denied all allegations of fraud, and, in addition to such defense, he interposed a decree in the surrogate’s court as a bar to the further prosecution of this action. To thai defense the plaintiff demurred, as insufficient in law. The issue of law raised by the demurrer was argued at the special term, decided in favor of the defendant, and the order overruling the demurrer was entered, from which this appeal .is taken.

It is admitted by the demurrer that the plaintiff was one of the parties before the surrogate, represented by counsel, who introduced objections to the account of the defendant as executor, and against who interest the decree was entered. The surrogate had jurisdiction of the parties and of the subject-matter, and his decree had the same-force and effect as the judgment of any other competent court. Garlock v. Vandevort, 128 N. Y, 377 ; 40 St. Rep. 418.

The decree of the surrogate, therefore, constituted a bar to this action as a previous adjudication of the questions involved therein, and the order should be affirmed, with costs to be paid by the plaintiff personally.

BEOWH, P. J., concurs; PEATT, J., dissents, on the ground that the estate in remainder created by the will vested on the •death of the testator.


author: ADAMS, J.

text:
    Cordelia A. Hinckley, Pl’ff, v. William A. Mayborne et al., Def’ts.

      (Supreme Court, General Term, Fifth Department„

      Filed December 28, 1895.)

    1. Wills—Construction.
    The devise of property to two persons for life with an estate in fee is not a suspension of the power of alienation, beyond two lives in being.

      it. Same—Defeasance.
    Where a devise provides that the fee shall vest elsewhere in case the devisee in fee after a joint life estate shall die without heirs before the tenants for life, the fee so vests where such death intervenes between those of the tenants for life.
    Controversy submitted without action on an agreed statement of facts, to determine the ownership of property devised.
    Charles S. Baker, for pl’ff; James L. Weeks, for def’ts.
   ADAMS, J.

— This is a- submission of a controversy upon a •case containing the facts agreed upon, as required by section 1279 of the Code of Civil Procedure, and such facts, so "far as it is necessary to state them, are as follows, viz.: One Selina E. Sheldon died February 27, 1886, leaving a last will and testament containing these provisions:

“ (1) I give and bequeath the brick house and about thirty-five •acres of land connected therewith, which I now own and occupy in the village of Sherman, to Henry and Chauncey L. Sheldon, to be used and occupied by them during the term of their natural life, and at their death the same shall go to my son George in fee simple. (2) I give and bequeath to Henry Sheldon and Chauncey Sheldon all my personal property to be used by them for their support aud maintenance during the term of their natural life, and at their death what is left shall go to my son George Sheldon and his heirs. (3) In case of the death of my son George without heirs before the death of said Henry rend Ghauncey L. Sheldon, I give all my said property equally to William A. May-borne, Joseph H. Mayborne, Henry J. Willing, aud Elizabeth A. Willing.”

Henry Sheldon, the husband of the testatrix, died July 13,. 1886. George Sheldon, a son of the testatrix, died without heirs, December 10, 1892. Ghauncey L. Sheldon, a brother of the testatrix, died March 22, 1894. At the time of her death, the testatrix was the owner in fee simple, of the property mentioned in the first clause of her will,.which instrument was properly executed, and has since been duly admitted to probate. The defendants are the present owners, by devise or purchase, of the interests of the parties named in the third clause of the will, and insist that, upon the death of Ghauncey L. Sheldon they became the absolute owners of the reai estate, and all that remained of the personal estate left by the testatrix; and this claim is opposed by the plaintiff, as the grantee of George, upon the grounds: First, that the devise mentioned in the first clause of the will is invalid, in that it attempted to suspend the power of alienation for more than two lives in being at the time of the creation of the estate; and, second, that the condition which, by the third clause ■ of the will,, was to defeat the estate of George Sheldon in the premises mentioned in the first clause, has not happened, for the reason that he survived Henry Sheldon. Thus it will be seen that the determination of the controversy requires the construction of certain provisions of the will of Selina E. Sheldon. In so x far as the first clause of that instrument is claimed to be obnoxious to the statute against» perpetuities, it is difficult to see upon what canon of construction the claim is based, or why the aid of the court should be invoked, for its language is clear and unambiguous, and scarcely admits of more than one interpretation. By it the husband and brother are given a life estate in the premises in question, and, of course, the “ absolute power of alienation ” is suspended during the existence of such estate, which it is quite clear should be measured by the life of the survivor of these two life tenants. But upon its termination the absolute fee vested either in George, if he was living, or, if dead, then in his heirs, if he left any, or, in the event of his death without heirs, in the persons named in the third clause of the will. Tills being so, it follows that by no course of reasoning can the suspension be said to extend beyond “ two lives in being at the creation of the estate.” The construction to be given to the third clause of the will appears equally clear. The condition which was to defeat the estate of George Sheldon in the premises of the testatrix was his “ death without heirs before the death of said Henry and Ghauncey L. Sheldon.” It has been shown that it was the intention of the testatrix to create by her will a life estate in her husband and brother, and to make an absolute disposition of her property upon its termination. If George survived the-life tenants, he was to become the absolute owner of the fee, but if he did not,—that is, if he died during the continuance of the life tenancy,—then the fee was to vest elsewhere. He did die before the life estate terminated, although it was subsequent to the death of Henry, one of the life tenants, and he left no heirs. That this was the fulfillment of the condition which the testatrix designed should defeat his estate seems too clear to admit of argument He certainly had no interest in his mother’s estate when he assumed to convey the same to the plaintiff, and. as Chauncey L. Sheldon survived him, the defendants, or the -parties from whom they derived their title, took the absolute fee of the estate upon the death of the last-named person.

The defendants are therefore entitled to judgment, with costa,

■ All concur.


author: BROWN, P. J.

text:
    Kingsland Land Company, Resp’t, v. Benjamin H. Newman, App’lt.

      (Supreme Court, Appellate División, Second Department,

      Filed January 21 1896.)
    Witness—Credibility—Interest,
    The cashier of a bank is not a disinterested witness as to protest by him of a note owned by the bank, and his testimony, though not directly contradicted, should be submitted to the jury.
    Appeal from a judgment entered on a verdict directed by the court in favor of plaintiff.
    Alfred M. Britton, for app’lt; Thornton, Earle & Kiendle, for resp’t.
   BROWN, P. J.

—This action was brought to recover upon a promissory note made by Paul 0. Grening, and indorsed by the appellant, and discounted by the Commercial Bank of Brooklyn, and transferred to the respondent after maturity. At the close of the testimony, the trial court directed a verdict for the plaintiff, to which defendant excepted.

We are of the opinion that the court erred in holding, as a question of law, that notice of the presentation, demand, and nonpayment of the note by the maker had been given to the appellant, That question, upon the testimony, we think, was one of fact, and should have been submitted to the jury. The note was payable at the Commercial Bank, where Grening kept his account; and Mr. Vail, the cashier of the bank and a notary public, testified that he presented it for payment, and protested it for non-payment; that he made an entry of it in his record book of protested paper, and deposited a notice of nonpayment and protest in the Brooklyn post office, postage prepaid, directed to the appellant at his residence, No. 425 Gates avenue, Brooklyn, N. Y. The appellant testified that he resided at the address named, but that he never received the notice of the nonpayment of the note. A certificate of the protest was attached to the note when produced in court, and it appeared on cross-examination of Mr. Yail that it had not been made at the date of the protest, but some time after, at the request of the counsel of the bank, and after the bank had failed and a receiver had been appointed. It was, of course, of no importance whether or not the appellant received actual notice of the nonpayment .of the note. The statute (chapter 416, Laws 1857) provides that, when the indorser of a promissory note resides in the ■city where the note is payable or legally presented for payment, notice of nonpayment thereof may be served by depositing it, with' the postage thereon prepaid, in the post office of the city or town where such note was payable, directed to the indorser at such1 city.

The question presented was whether the notice of nonpayment had been deposited in the post office. Yail testified that he personally deposited it,” properly directed, with the postage prepaid. But the note was then held by the Commercial Bank, and Yail was its cashier and a notary public, who undertook to present and protest the commercial paper held by it. He was not a disinterested witness, and we are of the opinion that the credibility of his testimony was for the jury to determine.

In Canajoharie Nat. Bank v. Diefendorf, 123 N. Y. 191; 33 St. Rep. 389, in speaking of the relation of a cashier to his bank, the court said: -

“The claim that the plaintiff’s cashier was a disinterested witness whose testimony must be regarded as controlling if not contradicted, cannot be sustained. * * * He was the financial agent of the plaintiff, and responsible to his principal for the care, fidelity, and prudence with which he discharged his official duties. His interest in the transaction was coextensive with that of the plaintiff, and brings him directly within the cases which hold that the credibility of such a witness is a question for the jury to determine.”

We are of the opinion that Yail’s relation to the bank was such, that the jury should have been permitted to determine whether his testimony was to be believed. The fact that the notice had not been received by. the appellant, though it would have been of very little weight against the positive testimony of a disinterested person that it had been deposited in the post office, was yet a circumstance which, in this case, the appellant was entitled to have the jury consider.

For these reasons, the judgment must be reversed, and a new trial granted, with costs to abide the event,

° All concur.


author: HATCH, J.

text:
    William N. Dykman, as Receiver, etc., Resp’t, v. William J. Northridge, App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed Jan'y 21, 1896.)

    1. Bills axd notes—Endorsement—Consideration.
    The surrender of an existing valid note is a sufficient consideration to support the endorsement of a new note given in renewal of the first.

      2, Same—Presentment—Presumption.
    A note, made payable at the bank to which it is given and which remains there, is presumed to have been presented for payment when due.
    3. Same—Protest—Notary.
    The cashier of a bank, who is the principal maker of a note belonging to the bank, may legally protest such note as notary public.
    Appeal from a judgment rendered for plaintiff on a verdict, directed by the court.
    Thornton, Earle & Kiendle, for app’lt; James C. Bergen, for resp't.
   HATCH, J.

—On a prior appeal to the general term a judgment recovered herein reversed, upon the ground that it did not appear that the bank parted with value for the note, which its receiver seeks by this action to enforce, and that the entries in the books of the bank were not competent to establish such fact, such entries not supported by the evidence of any witness having knowledge of the transaction. Dykman v. Horthridge, 80 Hun, 258; 61 St. Rep. 863. The present record is essentially different. It now appears, by the testimony of Vail, who was the cashier of the bank, that, some years prior to this transaction, he obtained from the bank a loan of about $4,000, for which he gave his promissory note, procuring an indorser thereon; that from time to time, as the note fell due, Vail renewed the same, making payments thereon. At some period between the giving of the first note and the one now in suit, the first indorser died, and Vail thereupon procured defendant to take his place as indorser. The present note is the last of a series of renewals. The transaction was this: The note in suit was drawn and indorsed by defendant. Vail drew a cashier’s check for the amount of the present note, less the interest thereon, and paid ten dollars on the principal, and gave the new note, check, interest, and payment to the paying teller* of the bank, and took from the bank the old note. This transaction was something more than mere credit entries in the books of the bank. It was possessed at the time of a valid and enforceable obligation against Vail and defendant, which it surrendered when the note in suit was given. It therefore parted with value for the present note; and as against the maker and indorser, this was a sufficent consideration to create liability against them.

Defendant urges that there was no proof of presentment and demand of payment on the due day, or at the place where the note was payable. By the terms of the"note it was payable at the bank; The proof showed that it remained at the bank when it fell due, and it was not then paid. It has been said, in answer to such a claim, that:

Having been discounted by the bank at whose counter it was payable, and belonging to the plaintiff, the law adjudged that payment of the note was then and there duly demanded, and, as the maker had no funds at the bank for its payment, that it thereby became dishonored.” Bank v. Crittenden, 2 Thomp. & C. 121; Bank v. Hollister, 17 N. Y. 46.

It is farther ui’ged that there is no sufficient proof that the note was properly protested. We see no reason why Vail, acting as agent for the bank, could not notify his indorser that he had not paid the note, or why, as a notary, he might not protest the same for nonpayment. Certainly there was no person better posted as to the fact than he, and the act itself is not such as violated any obligation, or was inconsistent with his official duty as a notary. Vail testifies that the note came into-his bands for presentation for payment. This fixes the date when it was. That he then protested it in the usual way, by mailing to defendant’s address a notice stating that the note described was not paid, that it was presented for payment and payment refused, and protested for nonpayment. This complied in all essential respects with the law, ánd constituted a sufficient notice to charge the indorser. Bank v. Warden, 1 N. Y. 413 ; Bank v. Backus, 36 N. Y. 111.

We find no error in the record. The judgment should therefore be affirmed, with costs.

All concur.