text:
    Joseph B. Pennell et al., App’lts, v. Charles L. Bucki, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    1. Contract—Building—Specifications.
    Whére the engineer has the right to modify or amend the specifications of a building contract, work done pursuant to such modifications is not extra work, unless the general character of the work is thereby altered.
    2. Compromise—Part payment.
    In the absence of any dispute as to the fact that one person owes another a certain sum of money, a part payment does not constitute a consideration for an agreement, by which the creditor surrenders the right to the payment of the balance.
    3. Building contract—Right of contractor to withhold money from sub-contractor.
    In a case in which the sub-contractors might become liable to the contractor under a provision in their agreement that the former “shall assume all liabilities for damages to property or to life or limb, caused by or resulting from the prosecution of their work,” such contingent liability is sufficient to support an agreement that the contractor should retain certain money due the sub-contractors until they had settled with a person who claims that his property has been injured.
    Appeal from a judgment dismissing the complaint.

      Joseph F. Daly, for app’lts; Leopold Wallach, for resp’t.
   Brown, P. J.

The defendant contracted with the Otis Elevating Railway Company to construct an elevating railroad in the Oatskill mountains. The plaintiffs were sub-contractors with defendant for a part of the work. Under their contract, they were to do “ the clearing, grabbing, masonry, and grading, also the drilling of holes for anchor bolts, in fact all the work (except trestle timber work and track laying) shown by drawings and specifications, and as directed by T. E. Brown, Jr.,1’ etc.,, for $47,500. This action was for a balance claimed to be due on the contract, and for extra work. At the close of the testimony, the court dismissed the complaint, on the ground that there had been an accord and satisfaction proven between the parties.

So far as the claim for extra work is concerned, we agree with the trial court that none was proven. The plaintiffs undertook by their contract to do all the work that defendant had agreed to do by Ris contract with the company, with the exceptions already stated. It was not disputed that defendant told the plaintiffs that there must be no extra work. Defendant testified that he said that he would not pay for extra work, unless he ordered it in writing. This was denied by plaintiffs, but it was conceded that he said there must.be no extra work, and that he never directed any to be done. It is very clear, we think, that defendant is not in any event liable for the grading done west of the station designated “ 0.” If that work was included in defendant’s contract .with the company, then it was within plaintiffs’ contract, and they were bound to do it. If it was not within defendant’s contract, then, if the plaintiffs have any claim for it, it is against some other person than defendant All the other work, we think, was incidental to the performance of the contract. The engineer had the right to modify or amend the specifications, and, unless the general character of the work was thereby altered, work done pursuant to such modifications was not extra work.

But as to all claims for extra work, the plaintiffs are concluded by the settlement. The engineer gave his final certificate of the amount due the plaintiffs. No extra work was cla-imed-by them, and, from the amount of the engineer’s certificate, certain deductions were made by defendant, and the balance paid and accepted by the plaintiffs. Excepting the items deducted in that settlement, the-acceptance of the final payment-bars any claim for extra work.

As to the claim for the balance due on the contract, we are of the opinion that the case was for the jury. After the plaintiffs had completed their contract, and the engineer had given his final certificate, the parties met at defendant’s office, to effect a settlement. According to defendant’s testimony, the gross amount of the plaintiffs’ work was $47,492.50. The defendant withheld $1,000, that he had paid for building a trestle over a part of the road, where the original plan called for a fill; $2,650, for damages claimed to have been caused to the property of the Oatskill Mountain Association; and $251.40, the amount of a bill due from plaintiffs to Mairs & Lewis, other contractors on the road. He paid to plaintiffs a check for $1,291.10, the balance due on their contract, after making such deductions, and delivered it with a letter, of which the following is a copy :

“New York, August 4tk, 1894.
“ Messrs. Pennell, O'Hern & Co., Yonkers, N. Y—Gentlemen: Inclosed I hand you check for $1,291.10, being final estimate on Otis Elevating Railway Co.’s work. It is understood that I am retaining the’ following moneys under the following conditions : $1,000, which I will pay you in case I am allowed my bill for extra work on the middle trestle; $251.40, for the bill of Mairs & Lewis for work said to have been done for you, and which, if you can agree, I will pay you, unless stopped by law ; also the sum of $2,650, being for bill for use of roads and damage to property of the Catskill Mountain Association, which I will pay you as soon as you deliver to me the receipt in full of the Catskill Mountain Association for any damage done their property, and for use of other such property, as you can agree upon between yourselves.
“Yours, very truly, Chas. L. Bucki.”

It is the defendant’s contention that this paper and the acceptance of the check constituted a compromise of disputed claims, and that it is a bar to the prosecution of this action. We cannot concur in that view of the testimony. The amount paid to the plaintiffs did not represent a compromise of any kind. Defendant was indebted to them in the sum of $5,192.50, and he claimed that they were liable to him in the sum of $3,901.40. There was no dispute about the difference between these two amounts. That was due to the plaintiffs in any event, and its payment could not constitute a consideration for an agreement by which the plaintiffs surrendered the right to the payment of the balance. The items named in the paper are not connected together, either in the paper itself or by the oral testimony. Each stands upon its own facts. The paper is evidence of an agreement only, and the utmost effect that can be claimed for it is that it tends to corroborate the defendant’s testimony that an agreement was entered into with reference to the items named in it, by which plaintiffs surrendered the right to present payment upon conditions which, at the time of the commencement of this action, had not been fulfilled.

With reference to the item of $251.40, we are of the opinion that defendant was bound to pay that sum to the plaintiffs on demand.' That was a claim held by Mairs & Lewis, other contractors on the road, against the plaintiffs. Defendant had nothing to do with it. He had no power to collect or withhold it for Mairs & Lewis. His sole right to retain it was the consent of the plaintiffs : and that consent, assuming it to have been given, as defendant testified, was revocable, and defendant was bound to pay it to plaintiffs on demand. For that amount, therefore, plaintiffs were entitled to a judgment in this action.

As to the other two items there was a dispute, and the question presented with reference to them was one of fact for the jury. It is unnecessary for us to refer with any particularity to the testimony. It is sufficient to say that the plaintiffs denied that they had agreed that their liability for the construction of the trestle was made dependent on the result of an action to be brought against the railway company by the defendant, and, if tbe jury had adopted that view, then the question whether the plaintiffs were bound under the.contract with defendant to construct the trestle, or, if not, whether the contract price was subject- to reduction, from the fact that the amount of their work was lessened by the construction of the trestle, and, if so, how much, were all questions that should have been determined in this action. With reference to the other item, there was a claim against the plaintiffs of liability only, and a liability that it is apparent was contingent on many facts and circumstances. The defendant had no enforceable cause of action against them for damages. The plaintiff’s contract contained the following provision:

“ Sixth. It is further understood and agreed that the contractors shall assume all liabilities for damages to property or life or limb caused by or resulting from the prosecution of their work.”

And a similar provision was contained in defendant’s contract with the railway company. Until thé defendant had paid some damages caused by the prosecution of the work by the plaintiffs, he had no cause of action against them. He had paid none, nor had he been sued for any. He, therefore, had no claim against the plaintiffs, and no right to retain the money. But plaintiffs might become liable to the defendant, and that contingent liability was sufficient to support an agreement that he should retain the money until plaintiffs had settled with the mountain association. Whether such an agreement was made or not was in dispute, and the jury should have been permitted to determine the fact.

The judgment must be reversed, and a new trial granted; costs to abide the event.

All concur.


source: Caselaw Access Project

author: Merwin, J.

license: Public Domain

text:
    Frank McClanathan et al., Resp’ts, v. William Friedel, et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed February 1895.)

    1. Contract—Construction.
    If the language of a writing is ambiguous or indefinite, the practical interpretation of it by both parties is a consideration of importance.
    2. Same.
    Under a contract guaranteeing plaintiff to average a certain sum'for running a machine seven days or one week from July 1, to September, 1893, to be paid every Monday of every week, it is a question for a jury whether it was the intention of the parties that the machine should he run on Sundays.
    Appeal from a judgment, entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial.

      Wm. Nottingham and Costello & Welch, for app’lts; Waters, McLennan & Waters, for resp’ts.
   Merwin, J.

One of the defenses set up by the defendants is that the consideration of the weekly payment to be made or guarantied by the defendants was in part for services to be performed on Sunday, and that the agreement in substance required the service to be so performed; and that, therefore, the contract under which plaintiffs claim is illegal and void. It is not disputed that this result follows provided the agreement is to be construed as requiring the machine to be run on Sunday. It was held by the trial court, as matter of law, that the agreement should not be so construed, and that the contract, so far as this question was concerned, was a legal one. The appellants claim that this ruling was erroneous. The contract is dated June 25, 1893, and that day was Sunday. It is, however, shown that it was in fact executed on Monday, June 26. The defendants had a pavilion and a saloon or restaurant near Salina pier, on Onondaga lake, and it was understood by the parties that the plaintiffs’ machine was to be placed near the defendants’ place of business, and it was so placed. It was run by steam power,—an engine; and there was an organ connected with it. The machine commenced to run, according to the evidence on the part of plaintiffs, on Sunday, the 2d of July, and continued to run every day, including Sundays, up to about the 18th July, when practically it stopped, by reason of the failure of the defendants to furnish coal for the engine. Whether the plaintiffs were without fault, and were ready to perform on their part for the time covered by the claim in this action, were questions litigated at the trial, and found by the jury in favor of the plaintiffs. On the 5th July the defendants paid the plaintiffs $150 for the first week’s payment. The defendants assisted in running the machine to the extent of selling tickets. By the contract, it was, in effect, agreed that for the work of every seven days, constituting a week, from a certain time to a certain time, the plaintiffs should be guarantied and receive a certain compensation. This was to be paid weekly, and therefore it must necessarily have been the intention that every day in the week should be occupied. It was seven days’ work in a week the earnings of which were guarantied at a certain amount, and to be paid for weekly. In this view the contract could not, consistent with the intent of the parties, be construed to give an option to plaintiffs to work on Sunday or not, as they chose. The number of days that the machine ran was a material element in the guaranty, and effect should be given to the words “seven days.” If the language of a writing is ambiguous or indefinite, the practical interpretation of it by both parties is a consideration of importance. Woolsey v. Funke, 121 N. Y. 92; 30 St. Rep. 768; Dodge v. Zimmer, 110 N. Y. 48; 16 St. Rep. 657. As said in Insurance Co. v. Dutcher, 95 U. S. 273, “There is no surer way to find out what parties meant than to see what they have done.” In the present case it is undisputed that the machine was in fact run upon Sundays during the time it was run under the contract We are of the opinion that the trial court erred in holding, as matter of law, that, so far as this question was concerned, the contract was legal. The judgment must therefore be reversed.

Judgment and order reversed on the exceptions, and a new trial ordered; costs to abide the event.

All concur.


text:
    Frederick W. Webster, Resp’t, v. Elmira, Cortland and Northern Railroad Company, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 1895.)

    Negligence—Presumption.
    The fact that a passenger is injured by derailment of a car, furnishes presumptive evidence of negligence on the part of the company.
    Appeal from an order granting a motion for a new trial, made by plaintiff on a case and exceptions after the verdict had been rendered in favor of defendant.

      Frederick Collin, for app’lt; Parsons, Shepard & Ogden, for resp’t.
   Merwin, J.

The defendant claims that there was no good reason for granting a new trial. The order does not state the particular ground on which it was made. Both sides, however, have addressed themselves mainly to the question whether the court at circuit erred in its charge as to the presumption .that arises from the fact of .derailment, and that is the main question here. The accident happened on the 16th March, 1887. On that day plaintiff purchased a ticket for passage over defendant’s road from Canastota to Elmira. The train consisted of an engine, tender, baggage car, passenger coach, and a smoker. The plaintiff was in the smoking car. The train proceeded safely until it passed Park station. Between that station and Erin 'station, there is a four-degree curve in the track for the. continuous distance of about 1,400 feet, a portion of which is over a bridge which is 34 feet long. As the train passed round this curve, the ear in which the plaintiff was riding left the track, and, after proceeding a short distance on the ties, was overturned, and the plaintiff was injured. The engine passed along safely, but all the cars were derailed to some extent, the derailment commencing at or near the north end of the bridge. There was evidence on the part of plaintiff tending to show that the train was going very fast; that the ties were defective, and the rails spread. On the part of the defendant there was evidence tending to show that the speed was about 24 miles an hour; that the track was in good order, and the rails did not spread.

The court, in the course of its charge, said :

“ The fact that the accident occurred under the circumstances that it did is not necessarily presumptive of negligence, but it is a fact which you have a right to take into consideration, under all the circumstances of the case, and see whether it leads you to think that there was some negligence, either in the running of this train or in the condition of this roadbed, in order to cause that train to jump the track where it did.”

At the close of the charge, after a request by the counsel for plaintiff as to certain expenses, and a ruling and an exception, the following occurred:

“ Plaintiff’s counsel: We also except to the charge that the accident does not necessarily furnish presumptive proof of negligence. The court: I have charged them that it is for them to consider how far, under the evidence in this case, it is evidence of negligence. Defendant’s counsel: We ask your honor to charge the proposition, the mere fact that the train left the track raises no presumption whatever of negligence. The court: I have already chai'ged that it was not presumptive, but proper evidence for them to consider on the question of the defendant’s negligence. Plaintiff’s counsel: We desire to except to the remarks of the court to that request of the defendant. Defendant’s counsel: We request the court to charge that, although the train left the track, the burden is on the plaintiff to show that the derailment of the train was due to the negligence of the defendant, and to show that by a fair preponderance of evidence. The court: Yes, by a fair preponderance of evidence. Defendant’s counsel: If the accident was the result of the action of frost or the elements, azrd human agency was not responsible for it, the plaintiff cannot recover. The court: Unless the defendant could have provided against it by care, that is true. Plaintiff’s counsel: We except to the requests of the defendant that the court has charged against us.”

From this statement it is quite apparent that the court intended to charge, and did in substance charge, that the mere fact that the train left the track raised no presumption of negligence. The general proposition which the court had previously stated was perhaps broad enough to include all the circumstances of the accident, and relate to the general burden of proof, but the request made by defendant called the attention of the court to a particular fact, and the presumption to be derived from that alone. So that the question is, not where the burden of proof is generally, but what significance is to be given to a particular and material fact.

In Edgerton v. N. Y. & H. Railroad CVo., 39 N. Y. 227, it is said by Judge Grover :

“ The evidence showed that the car in which the defendant was riding in part ran off the track, and was broken, by means of which the plaintiff was injured. This was prima facie evidence of neg, ligence of the defendant. The latter not only had the entire control of the vehicle, but also of the track upon which it was run, and it owed a duty to the plaintiff to keep both in a perfect and safe condition for the transportation of passengers with entire safety, so far as human prudence can accomplish these results. Experience proves that when the track and machinery are in this condition, and prudently operated, the trains will keep upon the track, and run thereon with entii’e safety to those on board. Whenever a car or train leaves the track, it proves that either the track, or machinery, or some other portion thereof, is not in a proper condition, or that the machinery is not properly operated ; and presumptively proves that the defendant, whose duty it is to keep the track and machinery in the proper condition, and to operate it with the necessary prudence and care, has, in some respect-violated this duty.”

This language was approved in Seybolt v. N. Y. L. E. & W. Railroad Co., 95 N. Y. 562, 568, and the general rule was said to be that in an action by a passenger against a carrier for negligence, where the plaintiff has shown a situation which could not have been produced except by the operation of abnormal causes, the burden then rests upon the defendant to prove that the injury was caused without his fault. A like view was taken in Caldwell v. N. J. Steamboat Co., 47 N. Y. 282, 293, where it was said to be a rule of the common law that, where an act takes place, which usually, and according to the ordinary course of things, would not happen if proper care was exercised, it is presumed, that such care was not observed. Murphy v. Coney I. & B. Railroad Co., 36 Hun, 200. In Feital v. Railroad Co., 109 Mass., 398, which was an action against a street-railway corporation for injuring a passenger, it was held that proof that the injury was caused by a car running off the track at a place where the track and the car were under the exclusive control of the defendants was sufficient to charge them with negligence, in the absence of any evidence that the accident happened without their fault. In Railroad Co. v. Williams, 74 Ind. 464, it was held that when the fact has been established that a passenger in a railroad car has be.en injured, without his fault, by the car in which he was ridingbeing thrown from the track and upset, the law will presume negligence on the part of the railroad company, unless the evidence shows there was not. The doctrine of the Fdgerton Case was approved, and numerous other cases cited as sustaining the same view. See, also, 2 Wood, Ry. Law, 1095, 1096; 2 Am. & Eng. Enc. Law, 768; Hutch. Carr. § 800.

We are of the opinion that the court erred in charging that the fact that the train left the track raised no presumption of negligence. This error furnished a sufficient reason for granting a new trial. We cannot fairly say that the charge in this respect did not influence to plaintiff’s disadvantage the jury. The order, therefore, should be sustained.

Order affirmed, with costs.

All concur.


author: Mayham, P. J.

text:
    Warner E. Sprague et al., Resp’ts, v. William B. Cochran et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed February 12, 1895.)

    1. Parties—Reformation of mortoase.
    The mortgagee, who is liable on his representation to his assignee that the mortgage covered the whole premises, is a proper party plaintiff with the assignee, in an action to declare the mortgage a lien on such omitted portion and to enforce it.

      % Same.
    The mortgagor, who is a party to the fraudulent conveyance of the mortgaged premises to his daughters, and is also in possession with his fraudulent grantees, is a proper party defendant.
    Appeal from an order, overruling a demurrer to the complaint, and from an interlocutory judgment entered thereon.

      Geo. H. Carpenter, for app’lts; T. F. Bush, for resp’ts.
   Mayham, P. J.

The demurrer is solely based upon the misjoinder of parties plaintiff. In order to determine whether, upon the face of the complaint, there is or is not a misjoinder of parties plaintiff, a brief resume of the allegations of the complaint may be necessary. It alleges, in substance, that William B. Cochran, one of the defendants, was the owner of certain real estate, which he undertook to mortgage to Appley, to secure a loan of money made by her to him. In making the mortgage, a valuable portion of the real estate which was to have been embraced therein was by mutual mistake omitted from the same. Without knowledge of that omission, Appley assigned the mortgage to Sprague, representing and believing that it embraced all of the mortgagor’s land intended to be included therein. Sprague foreclosed the mortgage, and became the purchaser of the land covered by it, and as, in that action, the. mortgage had been reformed so as to cover the land omitted from the mortgage by mistake, the whole of the land was sold, and Sprague, the assignee of the mortgage, became the purchaser, and took the referee’s deed. The complaint also alleges that before the foreclosure, Cochran, the mortgagor, fraudulently conveyed the land left out of the mortgage by mistake to his two daughters. It also alleges that Cochran, after the making of the mortgage, married, and that his wife has, or claims to have, an inchoate right of dower in the premises left out of such mortgage by mistake; that at the time of the commencement of the action to foreclose the mortgage the deed to the daughters had not been recorded, and their claim under the deed was unknown to the plaintiff in the foreclosure proceeding, and they were not parties to that action; that on the foreclosure of the mortgage there was a deficiency; that the grantees under the deed from Cochran are in possession of the premises so left out of the mortgage, and refuse to surrender to Sprague, the purchaser, under an assignee of the mortgage, or the person or persons having his interest. We are inclined to think that, under the facts alleged in the complaint, both the mortgagee and assignee of the mortgage are proper, if not necessary, parties plaintiff in this action. Appley, by her assignment of the mortgage, representing to the assignee that it covered all of the premises which by mistake were left out of the description, was clearly liable to the assignee to make good that representation. Sprague, who had purchased and foreclosed the mortgage, had a right to the complete title to the entire mortgaged premises, as well that included in the actual description of the mortgage as that left out by mistake. As the daughters of Cochran were not parties to the action of foreclosure, and not, therefore, bound by the judgment reforming the mortgage, their deed, though fraudulent, was a cloud upon the title of the purchaser under the mortgage, which was not discoverable by a mere inspection of the record, and which Sprague in this action would be interested in having removed.' Both of the plaintiffs therefore had a direct interest in the relief demanded in the complaint Mrs. Appley had parted with her legal title to the mortgage by the assignment. She had a direct interest in having the mistake corrected so as to relieve her upon her warranty as to the extent of the mortgaged premises. In Malins v. Brown, 4 N. Y. 404, it was held that when a party had conveyed by deed free from incumbrance, relying upon a mortgagee to release, upon a sufficient consideration paid therefor, a portion of the land conveyed from the lien of the mortgage, a grantor of such land might maintain an action to compel such release, although he had no interest in the land, he having conveyed away his interest by warranty deed. The ground of such right was his liability to his grantee on bis covenants of warranty. Applying the doctrine of that case to the one at bar, and Mrs. Appley is clearly a proper party plaintiff in this action. See, also, Pendergast v. Greenfield, 127 N. Y. 23; 37 St. Rep. 222. We think that Sprague also had an interest in the subject-matter of this action, which arose out of the same transaction. In the languge of section 446 of the Code of Civil Procedure, he has “ an interest in the subject of the action and in obtaining the judgment demanded.” It is difficult to see how a complete determination of the right of both of these plaintiffs can be had without their presence before the court, and we can see no possible harm to the defendant, under the rules relating to parties in equitable actions, by having them united as plaintiffs in this action. Murray v. Hay, 1 Barb. Ch. 59 ; Kennedy v. City of Troy, 14 Han, 312 ; Haines v. Holister, 64 N. Y. 1-4. By having the rights and interest of both of the plaintiffs adjusted in this action, a muliplicity of actions may be avoided, which in equity, is always desirable. Shepard v. Man. Railroad Co., 117 N. Y. 442-447; 27 St. Rep. 705; Townsend v. Bogert, 126 N. Y. 374; 37 St. Rep. 488. We think the defendant William B. Cochran isa proper party defendant, and the demurrer as to him cannot be sustained. He is charged in the complaint with being a party to the fraudulent conveyance to his daughters. He is also in possession of the lands with his fraudulent grantees, as appears by the complaint, which is admitted by the demurrer,. Hubbell v. Merchants’ Nat. Bank, 42 Han, 200; 4 St. Rep. 495 ; Miller v. Hall, 70 N. Y. 250. As the rule on demurrer in the construction of the pleading demurred to is to allow all reasonable intendment in support of the pleading demurred to, we think the demurrer in this case must be overruled. Demurrer overruled, and judgment on demurrer ordered for the plaintiff, with costs, with leave to the defendants to answer on payment of costs of demurrer.

All concur.


author: Dykman, J.

text:
    Lewis Roberts, Pl’ff, v. Edward V. Carey, Def't.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    1. Trusts—Validity.
    Where a married woman conveys her land to trustees to pay the income to her for life and, after her death, to convey it to her husband in fee, and gives them power, in their discretion, to sell the laud and invest the pro'ceeds and, in case of a sale during the husband’s lifetime, to pay the proceeds to him, the trustees take the legal estate and retain it so long as the purposes of the trust require such retention, and when the design is consummated, it vests absolutely in the husband.

      %. Same.
    Where the owner of the fee is the beneficiary of the power and competent to convey, his grant annuls the power.

      3. Same.
    In every scheme of trust or executory limitation, every valid provision will he upheld, unless such a course defeats the clear wishes of the grantee or testator.
    Controversy submitted, without action, on an agreed state of facts.

      Henry C. Griffin, for pl’ff; Yale & Davison, for def’t.
   Dykman, J.

This is a submission of a controversy without action, and the basal facts, which are all admitted, are as follows : On the 31st day of July, 1894, the plaintiff contracted to sell and convey to the defendant certain land and premises in the town of Gfreenburgh, Westchester county, known as a part of the Eockwell farm and a part of the Page farm. A deed in form complying with the contract of sale was tendered to the defendant, and rejected by him, by reason of alleged defect in the title to the land.

The facts upon which the contention of the defendant is based are these : Prior to March 21, 1887, Harriet E. Eoberts, the wife of the plaintiff, was the owner of the Page farm and another tract of land called the Miller farm. She was also entitled to the benefit of certain policies of insurance upon the life of the plaintiff. On that day of March, Harriet E. Eoberts, with her husband, the plaintiff, executed and delivered a trust deed purporting to convey the Page and Miller farms, and to assign the policies of insurance to Albert P. Allinson, George H. Eoberts, and John H. Hall, trustees, in the following language :

“ All those certain tracts or parcels of land known as the Page and Miller farms, in Westchester county, aforesaid, also all the said policies of assurance and all benefits to me inuring or to inure hereafter upon the death of the said Lewis Eoberts, in trust to collect the rents, income, and profits of the said real estate, and, after the expenses for care and maintenance are paid, to pay over the balance of said income to the said Harriet El Roberts during her natural life, and, in the event of the death of the said Harriet E. Eoberts prior to that of the said Lewis Eoberts, then to convey and assign the said land to him in fee, with full power, however, in said trustees, at any time when they shall deem it to the advantage of their" said trusts so to do, to sell all or any part of said real estate for cash or on credit, and proper deeds and conveyances therefor to make, without liability on the part of the purchaser to look to the application of the purchase money, and the proceeds of such sales to pay to the said Lewis Eoberts if he be living at the time of such sale. The proceeds of any sale or sales of real estate to form part and portion of the fund created by the payment of the various policies of insurance above mentioned, which said fund or proceeds shall be invested by the said trustees in good bonds and mortgages in the state of Hew York or other states, or in the legal trust investments or any productive real estate in the county of Westchester, or the state of Hew York, Philadelphia, or Chicago, and to collect and pay over the net rents, issues, and profits thereof to the said Harriet E. Eoberts, wife of Lewis Eoberts, during her natural life, and, upon her death, to collect and pay over the ■said income, rents, issues, and profits in equal shares to her children, Harriet E. Roberts, Anna Gr. Allinson, Lillie C. Roberts, Frank Roberts, Lewis Roberts, Jr., and Addison F. Roberts, and, upon the death of each of said children, to pay over the respective snare or shares to which said deceased child or children shall be entitled to the children of such deceased child or children, and, in the event of any of my said children dying without leaving • any lawful children him or her surviving then the share of such deceased child to be divided equally among his next of kin.”

On the same day, and by way of further assurance, the same -grantors executed a second deed to the same trustees, relating only to the Page and Miller farms, which were conveyed in trusts for the issues declared by the first indenture. We will consider these deeds as one instrument.

Harriet E. Roberts died intestate, on April 1, 1892, leaving'the plaintiff, Lewis Roberts, surviving her. On the 16th day of June, 1892, the surviving trustees executed and delivered a conveyance of the Page and Miller farms to the plaintiff. The trustees made no other conveyance of any part of the trust estate, nor have they in any way exercised the power of sale contained in the deed of trust. The defendant rejected the deed tendered to him by the plaintiff, upon the ground that the fee of the Page farm .did not vest in the plaintiff upon the death of Harriet E. Roberts, and was not conveyed to him by the trust deed above set forth to Allinson and others, and that the trust deed of Lewis Roberts and wife to Edward P. Allinson and others was void, and conveyed no title, and for such reason the title attempted to be conveyed by the deed tendered by the plaintiff was invalid and defective, and not in accordance with the contract The plaintiff here demandsjudgment that the defendant be directed to receive the deed tendered to him, and to pay the balance of the purchase price of $58,101.51, and interest from October 23, 1894, upon provisions being made for outstanding incumbrances. The defendant demands judgment, that he -be relieved from his contract, and that the sum of $6,500, paid on account thereof to plaintiff, be refunded. The question submitted relates to the title of Lewis Roberts to the Page farm, •and the defendant’s objection is directed exclusively to the validity of the trust deed executed by Harriet E. Roberts to the plaintiff in March, 1887.

The general purpose of the trust is easily perceived. Harriet E. Roberts owned the real property, and was also entitled to the avails of insurance policies upon the plaintiff’s life. Under the trust deed, she was to have the income from death. On her death, the plaintiff, if surviving, was to take the realty in fee. If he died before her, the proceeds of the realty, with the insurance money, were to form a fund, the income of which was to be paid on the death of Mrs. Roberts, in equal shares, to her six children; the trust as to each share to cease with the death of the child entitled thereto, when the proportionate part of the corpus was to pass to the children or next of kin of such decedent, as the cases might be. A power of sale and of investment was given to carry out ■the purpose of the trust, with the proviso that, if the property was sold in his'lifetime, the proceeds were to be paid to the plaintiff. Lewis Roberts survived his wife. The power of sale had not been exercised, and the surviving trustees conveyed to him, pursuant to the direction of the trust deed. The deed established a trust of realty and a trust of personalty, but our concern is with ■the realty more especially. In respect to that the deed is:

“In trast to collect the rents, income, and profits of the said real estate, and, after the expenses for care and maintenance of the same are paid, to pay over the balance of said income to the ■.said Harriet E. Roberts during her natural life.”

That is a valid trust, under subdivision 3 of § 55 of the Revised Statutes, respecting uses and trusts. Then follows this: “And, in the event of the death of said Harriet E. Roberts prior -to that of said Lewis Roberts, then to convey and assign the said land to him in fee.”

Under that clause, Lewis Roberts took or retained a valid vested ■remainder upon the death of his wife. The trustees took the ■lega], estate, and retained it so long as the purposes of the trust required such retention; and, when that design was consummated, 'it vested absolutely in Mr. Roberts. Nicoll v. Walworth, 4 Denio, 388.

Where a testator directed that his residuary estate should be ■divided into shares, and gives to his executors one share in trust for each surviving child during his life, with the direction, upon his death, that his share should be conveyed to his lawful issue, •it was held by the court of appeals that:

“Upon settled rules of construction, the issue of any child of the testator living at his death took under the will a vested remainder in the share held in trust for the parent for life, subject to open and let in after-born children, and to be divested, after their death, by the death of their parent.”

The court further said:

“The direction that the trustees, on the death of the parent, should convey, transfer, and pay over and deliver the parent’s share to his or her issue, was inserted to emphasize the right of the remaindermen, and was not the foundation of their title. This intestate under this will, as remainderman, took, not because the power of division was given to the trustees, but independently thereof, as primary devisees in remainder under the will. * * * The issue living are presumptively entitled in remainder, and, during the life of the parent then living, have a vested after remaiiidei’, in the parent’s share.” Campbell v. Stolces, 142 JSÍ. T. 23: 58 St. Rep. 451.

The power to convey to the remaindermen was not essential, but, if in any way important, it was duly given and duly executed, for the trustees actually did “convey and assign said land to him in fee.” The portion of the deed which invests the trustees with full power at any time when they shall deem it to the advantage of the trust to sell all or any part of the real estate for cash or on credit, and proper deeds and conveyances therefor to make, without liability on the part of the purchaser to look to the applicatian of the purchase money, and the proceeds of such sales to pay to the said Lewis Roberts if he be living at the time of such sale, the proceeds of any sale or sales of real estate to form part and portion of the fund created by the payment of the various policies of insurance above mentioned, which said fund or proceeds shall be invested by the trustees in good bonds, has not been followed, and that power with which the trustees were so invested has not been exercised, and the event has happened upon which the real property was to go absolutely to the plaintiff. In the event of the execution of the power of sale during the lifetime of the plaintiff, it is expressly provided by the instrument that the proceeds were to be paid to him. This provision is valid, and is not repugnant to the trust for his wife, for the exercise of the power in his lifetime would simply terminate that trust, according to the will of its creator. Such intention is clear, and it is hot unlawful. Belmont v. O'Brien, 12 N. Y. 394. In that case it was said in the opinion of the court as follows:

“Here the owner in fee gave the power by the same instrument that conveyed the estate; and, suppose it has been the absolute power to sell and terminate the present use and appoint the money it could never have been the intention of the legislature, not only' to frustrate the intention of the grantor, but to make an entirely different conveyance, one giving a- larger estate to the present cestui que use, at the expense, perhaps, of some other individual beneficiary or appointee. Where a sale is directed in the instrument creating the trust, such sale is not in contravention of the trust. Nor is it repugnant to the grant or devise, for that provides the defeasance, new use, executory limitation, or whatever it may be."

If, however, notwithstanding those words, it could be said that the power might be exercised after the death of Mrs. Roberts, her husband surviving, he alone, in such event, would have been the beneficiary of its execution. It is clear that, if the power was exercised in his lifetime, he was to have the proceeds; and it would not be seriously claimed that in case the plaintiff survived his wife, and took the fee, the power could be exercised after his death for the benefit of the children. The clear intent was that the plaintiff was to have the fee after his wife’s death, and that the trust as to the realty was to end in case he survived. In this event there was no reason why the power of sale should continue, and, if it did continue, he alone was the beneficiary. In such a case a conveyance by Lewis Roberts would annul the power. Where the owner of the fee is also the beneficiary of the power, and competent to convey, bis grant annuls the power, as he has no longer an interest in its exercise. Thus, it was held in the court of appeals that where two-thirds of an estate was devised to daughters, subject to a power of sale, the proceeds of which were to be paid them when they reached the age of twenty-five years, and after they came of age, but before either was twenty-five years old, they conveyed two-thirds by warranty deed, and thereafter" the donee of the power attempted a conveyance, it was held that the deed of the daughters conveyed the title and annulle.d the power, and tliat the deed oí the donee was ineffectual. This was upon the obvious ground that there was no restraint upon alienation by the daughters, and, had there been, it would have been inconsistent with the fee which they held. They were at liberty to convey; by their conveyance they ceased to have any interest in the exercise of the power. Hetzel v. Barber, 69 N. Y. 1.

It is a general principle that, where the beneficiary under the power is also vested with the title to the real estate as heir or devisee, he may, before the power has been exercised, convey the. real estate, and then defeat and annul the power of sale. Hetzel v. Barber, supra; Garvey v. McDevilt, 72 N. Y. 556. Here the power of sale had not been exercised during the life of Mrs. Eoberts. Lewis Eoberts had a vested remainder in fee, and the possibility of its defeasance was cut off by his surviving his wife. To confirm his title, he received a conveyance from the trustees. There can be no plausible claim that the power of sale could be exercised thereafter. Beyond doubt, the conveyance of Lewis Eoberts now tendered would destroy the power to the benefit of which, if it could be held to exist after the death of Mrs. Eoberts, he alone was entitled.

We have not noticed the apparent ellipsis in the trust deed, because we think the scheme of the trust is sufficiently manifested by the language inserted. At the same time it is quite apparent that something has been omitted before the words, “the proceeds of any sale or sales of real estate to form part and portion of the fund created by the various policies of insurance,” where we have placed an asterisk in the extract from the trust deed in the foregoing opinion. The following words at that place would seem to have been omitted: “But if he shall die before the said Harriet E. Eoberts, and shall not be alive at the time of such sale." We think the intention of the trust deed is not obscured by the ellipsis, because we have the positive statement that the land was to go to the plaintiff in fee if he survived his wife, and the equally clear statement that, if the power was exercised during the life of the plaintiff, he was to have the proceeds. If the plaintiff was to have the fee in case of his survival of his wife, and the proceeds in case of a sale in his lifetime, obviously another and alternative disposition of the proceeds arising from a sale of the fee was to be made only in case that he predeceased his wife, and the power was exercised after his death. Such a construction seems to follow as a matter of course, and it is not opposed by the remainder of the deed.

The foregoing consideration leads us to the conclusion that the trust created by the instrument in relation to the realty was for the life of Mrs. Eoberts only, except in the event of its prior termination by the exercise of the power of sale for the benefit of her husband. Upon the death of the wife there was provided an alternative disposition. The land was then to come to the husband, if he survived. If he was dead, the proceeds of the land were to be held upon separate trusts for each of the children of the wife. In the first event the trust terminated with the death, ■of his wife, and in the latter it could not extend beyond two lives in being. There is no difficulty, therefore, in sustaining the trust-to that extent. The instrument, therefore presents an intelligible scheme, and no valid objection appears against the trust after the life of the wife, nor of the provision which vests the fee in the husband if he survives her. It may even be admitted, if necessary, that the power of sale is invalid, the trust in respect to the personalty ineffectual, and that the ultimate disposition of the property in the event of the death of the husband prior to the wife is illegal; yet the vested remainder of the husband remains unaf'fected. Trusts only fail absolutely when vice permeates the entire scheme so effectually that no part thereof can be saved and preserved. Not only do courts frequently uphold a disposition of property upon a certain event, while rejecting a void alternative, but in any scheme of trust or executory limitation every valid provision will be upheld, unless such a course defeats the clear wishes of the grantor or testator.' The test is whether the upholding of one part and the rejection of another will defeat the presumed wishes of the "owner; that is to say, whether to give effect to the valid part in a given contingency will be inconsistent with his intent. If not, the legal will be separated from the illegal, and carried into effect. Kennedy v. Hoy, 105 N. Y. 134; 6 St. Rep. 787; Cross v. U. S. Trust Co., 131 N. Y. 339; 43 St. Rep. 254; Underwood v. Curtis, 127 N. Y. 523 ; 40 St. Rep. 255; Woodgate v. Fleet, 64 N. Y. 566. In the case at bar the primary intention of the creator of the trust was that Lewis Roberts was to have the absolute fee if he survived his wife. Any other disposition of the real estate was simply in the alternative of his death before that of his wife. The ulterior disposition may be disregarded, and the power of sale ignored, without in any way interfering with the wishes of Mrs. Roberts; for, in the event' that her husband survived her, she had but one wish, and that was that he was to take the property.

We thus find the title of the plaintiff free from reasonable doubt. There is no dispute about the facts, and the validity of the title tendered depends upon a question of law. That question will-be retired by the decision of the court, which will constitute an effectual bar to any future objection thereto.

The plaintiff is entitled to judgment directing the defendant to receive the deed of conveyance tendered to him by the plaintiff in pursuance of the contract, and pay the balance of the consideration, $58,101.51, and interest thereon from October 23,1894, upon payment of the several mortgages outstanding upon the property as mentioned in the submission. The plaintiff is entitled to the costs of this action.

Pratt, J., concurs. Brown, P. J., concurs in the result.


author: Per Curiam.

text:
    Jose Gomez et al., App’lts, v. William Hagaman et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed February 11, 1895.)

    Fraudulent conveyances—Preference.
    A failing debtor may prefer any of his creditors by a bill of sale to such an extent as his property will permit; the statute, limiting the amount of preferences, applies only to a general assignment for creditors.

      Appeal from a judgment, dismissing the complaint on the merits.

      Montignani, Mallory & Elmendorf (George H. Mallory, of counsel), for app’lts; George H. Stevens, for Samuel G. Wooster, Stedman, Thompson & Andrews (Arthur L. Andrews, of counsel), for resp’ts.
   Per Curiam.

It is now settled that a failing debtor may prefer any of his creditors by a bill of sale to such an extent as his property will permit; that the statute limiting the amount of preferences only applies to a general assignment for creditors. The conclusion reached by Parker, J., in London v. Martin, 79 Hun, 229 ; 61 St. Rep. 24, is clearly supported by the authorities cited in his opinion.

The only questions, then, to be considered, are of fact. After reading and carefully considering the evidence contained in the case, and the elaborate points presented by counsel, we have-reached the conclusion that we cannot properly reverse the findings, of the referee on the facts. There was testimony from which he was justified in determining that the firm of Samuel Stevens & Co. assumed the debts of Samuel Stevens, in his business, existing on April 1, 1887. Such an assumption may be established by facts- and circumstances, although there was no express agreement between the parties to that effect Peyser v. Myers, 135 N. Y. 599 ; 48 St. Rep. 825; Hannigan v. Morrissey, 37 St. Rep. 138. The facts and circumstances appearing in this case were sufficient to sustain the conclusion reached by the referee, and the evidence also upholds his finding that the bill of sale which this action is. brought to set aside was not executed with intent to hinder, delay, or defraud creditors. If the White debt mentioned in the bill of sale was not a copartnership, but an individual, debt of Samuel Stevens, that fact would not,, in our judgment, avoid the bill of sale as to Wooster and Hagaman; the evidence showing that they received it in good faith, to secure honest debts, and without any knowledge that White’s claim was not a firm debt.

We think it unnecessary to enter into a discussion of the questions of fact involved, and conclude that the judgment should be affirmed, with costs.


author: Cullen, J.

text:
    George H. Heath, Resp’t, v. New York Building Loan Banking Company.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.

    Judgment—Amendment.
    An amendment, which corrects no clerical error nor mistake of computation in a judgment, but changes the substantial rights of the parties, is improper.
    Appeal from an order, resettling the findings in the action.
    Booraem, Hamilton Beckett & Ransom, for app’lt; A. J. Perry, for resp’t.
   Cullen, J.

This is an appeal from an order of the special term resettling the findings in an action tried before the court without a jury, and modifying the judgment granted therein. The action was brought to set aside a mortgage, and to rescind a deed and agreement, upon plaintiff paying to the defendant the amount of its advances. It resulted in a judgment which purported to dismiss the complaint on its merits, and at the same time allowed the plaintiff to redeem within a given period, on payment of a specified sum ; and, on his failure to redeem, it decreed a sale for the payment of defendant’s,lien. The decree adjudged that there was due and owing to the defendant and a lien on the land, the sum of $8,014.60. Of this amount, $3,800 was the premium bid by the plaintiff to secure the loan; In this judgment the defendant acquiesced. Two months after it was rendered, the plaintiff, on an affidavit that there was no consideration for this item of $3,800, and that it was either imaginary and void dr usurious, applied to the court to strike the allowance of the item from the findings, and to reduce the amount fixed by the judgment accordingly. The order appealed from granted the application to the extent that it reduced the amount allowed for the premium from $3,800 to $211.12.

We think the order of the special term erroneous. The power of this court to correct its records is unquestionable Bohlen v. Met. E. Railroad Co., 121 N. Y. 546 ; 31 St. Rep. 888. The case cited, while it affirms the existence of this power in its broadest extent, also enunciates the principles upon which the power should be exorcised :

“ I am not aware that the courts have ever been denied the inherent power to correct their records where the correction relates to mistakes or errors which may be termed ‘ clerical ’ in their nature, or where it is made in order to conform the record to the truth. They should not, after the final judgment, by amendment, change a ruling upon the law, or alter the decision upon the merits ; for, by so doing, the substantial rights of the adverse party would be really affected. But where the amendment is in the line of the correction of a mistake or of an omission obviously due, as in this case, to the trial judge’s oversight, the power to make it is a general and incidental one.”

In the present case the amendment corrected no clerical error nor mistake of computation, but it changed the substantial rights of the parties. _ The defendant, in its answer, sets up a counterclaim, alleging that this sum of $3,800, with others, was due to it, and prayed for a sale of the land to satisfy its claim. The judgment and findings allowed this claim to the defendant. By the amendment, the claim is disallowed, except to the extent of $211.12. This does not arise from arithmetical mistake, but from a substantial difference in the rulings of the court between the original and amended findings as to the legal rights of the defendant. Nor is the amendment made to conform the record to the actual decision of the court. The plaintiff, in his affidavit, does not claim that the judgment and findings do not accord with the decision made. His allegation concerning this disputed item is not that the court did not allot it, but that the court should not have allowed it. It may very well be that the original award to defendant was erroneous, and the present award is correct; but the error was to be corrected either by appeal or by the grant of a new trial. Ir may be, also, that the plaintiff presented such a case of surprise or neglect upon the part of his attorney as to justify granting him a new trial. If a proper case is made, he may still obtain that relief; but the judgment should not have been changed, except after a new trial, upon which the defendant would have had opportunity to produce additional evidence and justify its claim. The order appealed from should be reversed, and the motion denied, with $10 costs and disbursement.

All concur.


author: Putnam, J.

text:
    Edward D. Irish, Resp’t, v. Elizabeth C. Horn, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 12, 1895.)

    1; Evidence—Boons op account.
    A party’s book of account is not admissible in evidence in his own favor, unless he shows that he had no clerk and kept fair and honest books of account, etc.
    2. Same—Memorandum.
    To render a memorandum competent in connection with the testimony of a witness, he must testify that the memorandum was correctly made, and that he is unable to recollect the facts independently of the entries therein.
    Appeal from a judgment of the county court affirming a judgment of the justice’s court.

      A. Armstrong, Jr., for app’lt; Robert Imrie, for resp’t.
   Putnam, J.

Plaintiff, on the trial before the justice to prove the claim set out in his complaint, read in evidence pages 83 and 84 of his book of account. It is urged by appellant that, although defendant’s objections to such book of account were overruled, plaintiff neglected to actually read said pages 83 and 84, and hence there was no evidence whatever before the justice to establish plaintiff’s cause of action. The learned county judge, however, reached the conclusion that plaintiff’s book was on the trial treated and regarded as in evidence, and hence on the appeal it should be deemed that pages 83 and 84 of the book were read. We will assume that the conclusion reached by the court below in that regard was correct.

We think, however, that the justice erred in overruling the objections of defendant to the reception of the book in evidence. It was not properly admitted as a book of account. The necessary and preliminary proof required to make it competent evidence as such was not given. It was not shown that plaintiff had no clerk ; that he kept fair and honest books of account, etc. See Dooley v. Moan, 33 St. Rep. 118. Nor was it properly received as a memorandum, for the same reason. To render a memorandum competent, in connection with the testimony of a witness, such witness must testify that the memorandum was correctly made, and that he is unable to recollect the.facts independently of the entries therein. Nat. Ulster County Bank v. Madden, 114 N. Y. 280-284; 28 St. Rep. 220.

Judge Selden, in Russell v. Hudson River Railroad Co., 17 N. Y. 134-140, says:

“ It is, however, an indispensable preliminary to the introduction of such a memorandum in evidence that it should appear * * * that the witness is unable, with the aid of the memorandum, to speak from memory as to the facts. It is as an auxiliary to, and not as a substitute for, the oral testimony of the witness, that the writing is admissible. It is the duty of the court, in all such cases to see, before receiving the memorandum in evidence, that it was made at or about the time of the transaction to which it relates ; that its accuracy is duly certified by the oath of the witness, and that there is a necessity for its introduction, on account of the inability of the witness to recollect the facts.”

Plaintiff neglected to testify that the account on pages 83 and 84 of his book contained a true and correct statement of materials and labor furnished defendant, entered on said book at or about the time of said transaction, and that he was unable to remember the items independently of the entries in the book. On the contrary, plaintiff testified that he had other means than the items set forth in the book of showing what goods were sold and labor performed for defendant, except what Mr.- Black got. To. render pages 83 and 84 of plaintiff's book competent as a memorandum, plaintiff should have sworn, in substance, that he made the charges therein of materials sold to and labor performed for defendant at the time the several items were furnished; that the account was correctly kept; and that he was unable to remember such items independently of the memorandum. In the absence of such testimony, we think the justice erred in overruling the objections of defendant to the book of account, and also that such book read in evidence failed to establish plaintiff’s cause of action. "

We think the justice also erred in excluding evidence offered by the defendant of conversations between plaintiff and Black as to clapboards, in overruling defendant’s objections to testimony offered by plaintiff as to conversations and transactions between him and Black, and fell into other errors which we deem unncessary to discuss, as, for the reason above stated, the judgment must be reversed. Judgment reversed, with costs in this court and the court below. All concur.


text:
    William Bennett, App’lt, v. Greenwich and Johnsonville Railroad Company, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed February 12, 1895.)

    Master and servant—Appliances—Question op pact.
    It is a question for the jury whether a railroad company, which uses cars with drawheads of different heights, fails, in not providing crooked links suitable to the coupling of such cars, to furnish reasonably safe appliances.
    Appeal from a judgment of nonsuit..

      Frank B. Hull (T. F. Hamilton, of counsel), for app’lt; Gibson & Van Kirk (C.C. Van Kirk, of counsel), for resp’t.
   Mayham, P. J.

Theplaintiff was injured while attempting to couple cars on the defendant’s railroad. The proof shows that the cars, in attempting to couple which he was injured, were cars from other railroads than that of the defendant’s ; that there was a difference in the height of the drawheads, in which the coupling link was to be inserted, of about four inches; that the plaintiff was ordered by the conductor of the train to couple the cars, and when the cars were within four feet of each other, one' moving slowly and the other stationary, the plaintiff discovered the difference in the height of the drawheads, and that there was no crooked link provided for such conditions; that the link was in the lower draw-head, and at about the time of the discovery of the difference in the height of the bumpers the conductor directed him to change the link from the lower to the higher drawhead, but he was unable to do so, by reason of the near proximity of the cars to each other; that in his attempt either to couple the cars in the condition in which they were, or to change the link from the lower to the upper drawhead, the plaintiff’s arm caught between the bumpers, and was so injured as to necessitate amputation. The evidence discloses that the defendant kept no car inspector, and had no printed, written, or other rules for the government of its employes, or the management or equipment of its cars. The proof showed that it was customary for railroads to carry crooked links with which to couple cars of different height. There was also evidence tending to show that a crooked link was safe, and in many cases necessary, in coupling cars of different height of drawheads. The evidence also tended to show that other railroad companies generally, if not universally, provided inspectors for cars, and rules for the government of their trains. To meet that contention, it was shown by the defendant that its railroad was but a single track, extending but a few miles, with few cars and small capital, and that the strictness of management and completeness of equipment was not required of it that would be exacted for more important and extensive railroad systems. At the conclusion of the evidence the judge nonsuited the plaintiff, mainly, as appears, upon the' ground that the defendant had not been proved to have been guilty of negligence which caused the injury. Nor was the plaintiff chargeable with contributory negligence, but the accident was the result of the dangerous character of the plaintiff’s employment, the risk of which was incident to the employment, and was assumed by him. It is conceded by the learned trial judge that he did not place the nonsuit on the ground of the plaintiff’ scontributory negligence. In Goodrich v. N. Y. C. & H. R. Railroad Co., 116 N. Y. 404; 26 St. Rep. 767, it was held that when the defendant failed to show that it provided a car with bumpers in good order, and the injury was traceable to defective bumpers, it was liable, unless the proof showed that the plaintiff was in some way responsible for that condition. It is not pretended in the case at bar that the plaintiff had anything to do with the difference in height of these bumpers, or with the furnishing of the straight links. We are inclined to think that failure to provide an inspector for its cars, or to furnish a crooked link suitable to the coupling of this class of cars, was a question of fact for the jury to say whether or not the defendant had furnished for the use of the plaintiff reasonably safe tools and implements for the performance of his work, and that it was error to hold, as matter of law, that the defendant had performed its whole duty to the plaintiff, in requiring him to couple cars in the condition in which these were proved to have been. The defendant, in receiving these cars on to its road, was bound to use reasonable care in the inspection of the same, and in adapting them to the use of its employes, so as not to subject such employes to undue hazard in their use. Gottlieb v. N. Y. L. E. & W. Railroad Co., 100 N. Y. 462. Without stopping to examine the question of the increased obligation resting upon the defendant, growing out of the alleged incapacity of the plaintiff, we think there was enough in the case, independently of - that question, to have required its submission to the jury, and that it was error to take it from the jury. Judgment reversed, and a new trial ordered, costs to abide the event.

All concur.


text:
    Elizabeth Kelly by Guardian, etc., Resp’t, v. Cohoes Knitting Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 12, 1895.)

    NESLieENCE—Independent contractor.
    Where, in an action for negligence, there is also evidence that the injury was caused by the negligence of the servant of the contractors, over whom defendant had no control, it is error to refuse to charge that, if the accident happened through the negligence of such contractor’s servant, defendant is not liable.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Charles F. Doyle, for app’lt; J. F. Crawford, for resp’t.
   Putnam, J.

The action was brought to recover damages for an-injury to plaintiff resulting from defendant’s alleged negligence. Plaintiff claimed that on April 14, 1891, while she was passing along one of the public streets of the city of Cohoes, a box of goods was negligently pushed out of a door of defendant’s mill by its servants upon the sidewalk and injured plaintiff, who was then lawfully passing along the street. The principal question between the parties on the trial was as to whether plaintiff was injured by the box as it was shoved out of defendant’s mill or by the tailboard of the truck standing in front of the building to receive said box. It is not claimed that defendant was liable for any negligence on the part of Simmons, the driver of the truck. He was an employe of Thompson & Hildreth, contractors in the work of removing goods from defendant’s premises to the Citizens’ Line Steamboat Company. Simmons was not an agent or servant of defendant, but represented independent contractors. We will not undertake to discuss the evidence produced on the trial by the “parties. After carefully considering it, we are of the opinion that whether defendant’s servants were negligent in shoving the box of goods into the street in the manner they did, whether plaintiff was struck and injured by the box, and whether plaintiff's negligence did or did not contribute to the injury, were all questions of fact, which the trial court properly submitted to the jury, and as to which the verdict is conclusive. Nor, under the circumstances of the case, can the damages awarded to the plaintiff be regarded as excessive. We should therefore be in favor of an affirmance of the judgment were it not for certain refusals to charge by, and rulings of, the trial judge, which we think were erroneous, and which may have affected the result. On the trial defendant requested the court to instruct the jury as follows: “That, if the accident happened by the negligence of Simmons, the defendant is not liable.” Also: “For any commission of wrong by Simmons, or omission of duty by him, the defendant is not liable.” The court declined to so charge, and the defendant duly excepted. As we have seen, Simmons was not a servant of defendant, but of independent contractors, and it is not claimed that defendant was liable for any negligent act on his part. It was a question of fact for the jury whether defendant was liable by reason of the negligence of its servants in loading the box into the truck in the way they did. There were three persons engaged in the business,— two servants of the defendant, and Simmoris, the servant of the contractors. From the evidence the jury could have found that defendant’s servants were negligent. They could also have determined that Simmons, the servant of the contractors, was guilty of greater negligence; that he, standing in the wagon, where he must have seen the children passing along the street, and allowing the plaintiff to come under the descending box, which he was assisting to load, without warning, was guilty of gross negligence. Defendant’s servants, knowing that Simmons was in the wagon to receive the box, may, without being necessarily negligent, have regarded him as a watchman, who would warn travelers on the street as to the box about to descend, and have relied on him to give such warning; and hence may not have been in fault themselves in pushing the box as they did into the wagon. At least, under the evidence, it was possible for the jury to so find. We think, therefore, that the court should have charged, as requested, that defendant was not liable for any omission of duty, wrong or negligent act of Simmons. The question before the jury was, was the injury to plaintiff caused by a negligent act on the part of defendant? Defendant was liable if a negligent act of its servants produced or contributed to the injury. It was not liable if the injury was alone caused by the negligent act of the contractors or their servant. It was a question of fact for the jury. By the charge, and the refusal of the judge to give the instructions asked for, the jury were allowed-to believe, and may have concluded, that the defendant was liable for the act of Simmons. They may have reached a conclusion which they would not have arrived at had they been informed that the defendant was not responsible for the negligent action of the contractors or their servant. It ig true, as suggested by the learned counsel for respondent, that the jury were instructed by the court that plaintiff could not recover unless it were established that- the injury to plaintiff was caused by the negligence of the defendant, But he should have charged - further, as requested, that the act of the contractors was not that of the defendant. As the court left it, the jury may well have determined that the defendant was liable for the negligent omission of Simmons to give proper warning to the children passing along the street. The refusal of the trial judge to instruct the jury as above suggested was a material error, which necessitates the granting of a new trial.

We also doubt the correctness of the following instruction to the jury:

“ If you find the wagon was standing, as is claimed on the part of the defense, backed up against the building, and this plaintiff attempted to crawl through or to go through there when the end board was up within three inches of the building, and hit the end board, then it is a question for you to determine whether she was guilty of negligence or not, talcing into consideration her age. If she were an adult, had been at the time, and attempted to pass through such a place, I should charge you as matter of law it was negligence, and gross negligence, and if she got injured she ought to suffer the consequences. I will leave that question with you to determine whether this girl, being ten years and a half, or a little older, at the time,—whether she was guilty of negligence if she attempted to pass through there, when the truck was standing within three inches or up against the building, -or not.”

Although plaintiff was only 10£ years old, if she attempted to pass defendant’s building when the truck was only three inches from it, and under the circumstances stated in the charge, we doubt whether, as matter of law, she was not guilty of contributory negligence. See Wendell v. N. Y. C. & H. R. Railrad Co., 91 N. Y. 420. But, as there should be a new trial for the reason above stated, we will not consider this question, as well as other questions raised on the appeal.

Judgment reversed, new trial granted, costs to abide the event.

All concur.


text:
    David Link, Resp’t, v. William Moore, Appl’t.

      (Supreme Court, General Term, Third Department,

      Filed February 12, 1895.)

    Libel—Privilege—Pleadings.
    Allegations in the pleadings in an action, if relevant and material, though false, are absolutely privileged.
    Appeal from an order overruling a demurrer to the complaint, and from an interlocutory judgment entered in pursuance of such order.

      Charles F. Doyle, for app'lt; P. D. & Smith Niver (P. D. Niver, of counsel), for resp’t.
   Putnam, J.

This action was brought to recover damages for an alleged libel. Defendant, on the 22d day of May, 1892, commenced an action against his wife for adultery, and in the complaint alleged adulterous intercourse between her and the plaintiff. In this action plaintiff seeks to recover damages for said allegations in the complaint in the divorce action, which- he claims were false, malicious, and libelous ; and he alleges that the action brought by defendant against his wife was not commenced in good faith, and said libelous matter in the complaint therein was not made in good faith, but maliciously, and with intent to injure plaintiff. The defendant demurred to the plaintiff’s complaint, the demurrer was overruled by the court below, and from the interlocutory judgment entered on such decision this appeal was taken.

It is not claimed that the allegations contained in the complaint in the action of Moore v. Moore, alleging adultery of the defendant therein with the plaintiff in this action, were not pertinent and material. Such being the case, we are of the opinion that such allegations were absolutely privileged, and hence the court below erred in overruling the demurrer. As we understand it, allegations in the pleadings in an action, if relevant and material, although false, are absolutely privileged. If not material or pertinent, they are not privileged. The law on the subject is clearly stated by Andrews, J., in Moore v. Manufacturers' Nat. Bank, 123 N. Y. 420-425 ; 34 St. Rep. 335. A quotation from his opinion seems all that is necessary to be written in this casa He says:

“ There is another class of privileged communications where the privilege is absolute. They are defined in Hastings v. Lusk, 22 Wend. 410. In this class are included slanderous statements made by parties, counsel, or witnesses in the course of judicial proceedings, and also libelous charges in pleadings, affidavits or other papers used in the course of the prosecution or defense of an action. In questions falling within the absolute privilege, the question of malice has no place. However malicious the intent, or howéver false the charge, may have been, the law, from consideration of public policy, and to secure the unembarrassed and efficient administration of justice, denies to the defamed party any remedy through an action for libel or slandei: This privilege, however, is not a license which protects every slanderous publication or statement made in the course of judicial proceedings. It extends only to such matters as are relevant or material to the litigation, or at least it does not protect slanderous publications plainly -irrelevant and impertinent, voluntarily made, and which the party, in making them, could not reasonably have supposed to be relevant. Ring v. Wheeler, 7 Cow. 725; Hastings v. Lusk, 22 Wend. 410 ; Gilbert v. People. 1 Denio, 41; Grover, J., Marsh v. Ellsworth, 50 N. Y. 309 ; Rice v. Coolidge, 121 Mass. 393; McLaughlin v. Cowley, 127 id. 316.”

It will be found that the cases cited in the above-quoted extract fully sustain the views therein stated. Thus in Marsh v. Ellsworth, 50 N. Y. 309, Grover, J., says:

“ The law is well settled that a counsel or party conducting judicial proceedings is privileged in respect to words or writings used in the course of such proceedings reflecting injuriously upon others, when such words or writings are material, or pertinent to the question involved; and that, within such limit, the protection is complete, irrespective of the motive with which they are used.”

Beardsley, J., in Gilbert v. People, 1 Denio, 43, says :

“ If what is said or written is pertinent and material to the controversy, the protection to parties, and those who represent them (for all stand on the same ground), is absolute and unqualified, and no one shall be permitted to allege that it was done with malice.’’

To the same effect, see Hastings v. Lusk, 22 Wend. 417; Garr v. Selden, 4 N. Y. 91; Perzel v. Tousey, 52 Supr. 88.

There is another class of cases where words which are not uttered by parties, counsel, or witnesses in legal proceedings are held to-be privileged,—as words used in giving a character to a servant, or answering an authorized inquiry as to the solvency of a tradesman, and many other instances. In the opinion in Moore v. Panic, at page 425, 123 N. Y., it is said in regard to such utterances :

“In these and like cases the privilege is not absolute, but conditional-; that is to say, the occasion being lawful, the communication is prima facie privileged, and rebuts the inference of malice which would otherwise arise, and imposes on the plaintiff, who prosecutes an action of slander or libel, the burden of proving that the defendant was moved by actual malicious intent in making1 the communication, and, failing in that, he fails in the action.”

The cases where it has been assumed or held that an action of libel may be maintained where the matter alleged to be libelous was privileged are generally of this class. As Klinek v. Colby, 46 N. Y. 427-431; Kine v. Sewell,3 Mees. & W. 297, and many other cases that might be cited. In Dada v. Piper, 41 Hun, 254, to which we are cited by the learned counsel for respondent, the action was brought to recover damages for a libel contained in a complaint brought against plaintiff’s attorney named in the complaint alleged to be libelous, and on the trial the plaintiff,.after introducing the complaint alleged to be libelous in evidence, rested, without offering other testimony,. The court dismissed the complaint on the ground that the statements therein claimed to be libelous were privileged, and the judgment was affirmed on. appeal. The judge delivering the opinion of the general term assumed that the action could have been maintained had the plaintiffs-shown the falsity of the charges contained in the complaint alleged to be libelous, and that said charges were malicious, and made in bad faith on the part of the pleader. But this assumption was obiter and cannot be deemed an authority. Under the authorities above set out, we think the court below erred in overruling the demurrer interposed by the defendant, and hence that the judgment should be reversed, and judgment on the demurrer rendered for the defendant, with costs in this court and the court below.

All concur.


author: Herrick, J.

text:
    Frank N. Wright, Resp’t, v. John A. Robinson & Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 12, 1895.)

    1. Tender—Check.
    A check of a party, if not objected to, is a sufficient legal tender.
    2. Same.
    Where such tender is made before the commencement of the action, it is not necessary to bring the check into court, when the amount in money is. deposited.
    3. Same.
    Where the tender, in such case, is followed by the payment into court,, interest and costs cannot be recovered.
    Appeal from a judgment in favor of plaintiff.

      Joseph G. Behan, for app’lt; L. L. Boyce, for resp’t.
   Herrick, J.

This an appeal from a judgment entered upon* the report of a referee in favor of the plaintiff, and against the defendant, for the sum of $177.05, damages and costs. The facts are undisputed, and were stipulated before the referee. The plaintiff" let and rented a store to the defendant for a term commencing-August 15, 1892, and terminating on the 31st day of March, 1895, at the yearly rental of $300, payable monthly. Ón the 23d day of January, 1894, the plaintiff wrote to the defendant as follows: “I wish you would send me a check for my rent, as I am in need of it.” Pursuant to such letter, the defendant sent plaintiff its check, dated January 26, 1894, for $75, for rent then past due. The plaintiff was put to the expense of fifty cents for the collection of such" check. The defendant received no notice of the expense of such collection. On the 1st day of February, 1894, the sum of $12.50 became due and payable on account of rent of said store. On the 30th day of January, 1894, the defendant sent to-plaintiff its check for the sum of $12.50. Accompanying such, check was a letter, in substance stating that such check was sent in payment of the rent due February 1, 1894. On the 31st day of January, 1894, plaintiff returned said check to the defendant,, with a letter reading as follows:

“Northville, K Y., January 31st, 1894.
“John A. Robinson & Go.—Gentlemen: I herewith return your check for $12.50, as I cannot accept it as payment for anything.
“Yours, etc., F. 1ST. Wright.” •

The letter and check were received by the ■ defendant February 1, 1894. All the payments of rent during the term of said lease were made by the defendant’s checks, which were accepted by plaintiff, and duly paid, except the installment of $12.50, before set forth. At the time the check for $12.50 was drawn and sent by the defendant to plaintiff, there were, and ever since have been, funds on deposit to the credit of the defendant in the bank upon which such check was drawn, more than sufficient to meet the-same had it been presented, and it is conceded that the check would have been paid if presented in the usual course of business. At the time of the rental of said store by plaintiff to defendant, an agreement was entered into whereby the plaintiff agreed to heat the said store for the defendant for the sum of $45 per year, which sum the defendant agreed to" pay on the 1st day of January of each year. On the 2d day of February, 1894, this .action was commenced,, by the service of a summons and notice upon defendant. It does not appear when the complaint was served. The complaint sets forth two causes of action,—one for $12.50, being for the installment of rent due February 1, 1894; and the other for $45, being the amount due January 1, 1894, for heating the store pursuant to the agreement above stated. On the 9th day of April, 1894, the defendant served its answer to plaintiff’s complaint. In such answer the defendant admitted the indebtedness of the $45. As to the cause of action for the $12.50 for rent, the defendant alleged that on or about the Slst day of January, 1894, it tendered and delivered to the plaintiff a check for the sum of $12.50, in payment thereof, and that such tender “was in accordance with the usual custom and practice long established between the plaintiff and the defendant, and at the request of said plaintiff, and that at that time and ever since there have been funds on deposit to the credit of said defendant at the bank upon which such check was drawn, more than" sufficient to meet the payment of said check.” The answer further alleges that the defendant has ever "since been, and still is, ready and willing to pay the plaintiff said amount, “and that said sum of $12.50 has been actually delivered and paid over to the clerk of this court, for the use and bénefit of said plaintiff whenever the said plaintiff shall elect to receive the same, and that notice of the delivery to said clerk has been given to said plaintiff.” Upon the hearing before the referee, it was stipulated between the parties “that on the-9th day of April, 1894, the defendant deposited with the clerk of this court, to wit, the clerk of the county of Fulton, the sum of $12.50, in cash, for the use and benefit of the plaintiff, and that notice of such deposit, was given to and received by the plaintiff at the time the answer herein was served.” Upon these facts, the referee directed judgment for $57.50, with interest from the time the several amounts became due, together with costs, in favor of the plaintiff, and against the defendant.

The legal question arising in the case is as to whether the defendant’s sending his check for the amount due for rent was a sufficient tender, and, if so, whether such tender has been kept good. No reason was given for the return of the check, as will be observed by reading the letter heretofore quoted. At that time the defendant was owing the plaintiff $57.50, consisting of two separate and distinct claims,—one of $45, and one of $12.50 It was the defendant’s legal right to pay either of these separately, and the plaintiff had no right to reject such payment, because it was not for the whole amount due him at that time from the defendant on both claims. Its return cannot be sustained, there:fore, because it was not for the full amount the defendant owed the plaintiff. The defendant made it applicable to the rent due, as he had a legal'right to do, and it was for the full amount of rent then due; so that it was a good tender, except that it was by check instead of in money. A check may be a sufficient legal tender. “The check of the party, not objected to, is, for the purpose of a legal tender, the equivalent of money.” Mitchell v. Vermont Copper Mining Co., 67 N Y. 280-282. In that case another reason than that it was a check was given for declining it. The defendant had been in occupation of these premises for about eighteen months, and all his payments of rent had been made by check. Only seven days before the sending of the check in question, the plaintiff had written to it requesting it to send a check for the rent then due. Under such circumstances, I think the offer of payment by check was the equivalent of a tender in cash. Of course, the plaintiff had the right at any time to put a stop to that method of payment; but payments by check having been the customary and accepted way of dealing between the parties, and the plaintiff having invited payment in that manner so brief a time before, if he had desired to stop payments in that way he should have notified the defendant that that manner of payment would no longer be accepted, and have given an opportunity to make a strict legal tender. Good faith required such a course on his part. I do not think that he should be permitted to take advantage of the defendant after so long a course of dealing between them, by peremptorily stopping it without notice, and mulcting the defendant with interest and costs. Gray v. Green, 9 Hun, 834-338.

The action was commenced so quickly after the return of the check, with his reason for refusal unexplained, that the defendant did not have a reasonable opportunity to make the required payment in money. The defendant’s practice to keep the tender good was proper. It was not necessary to bring the check into court when the amount in money was deposited. In Becker v. Boone, 61 N. Y. 317, where the defendant had tendered a check before the eónjmencement of the action, the court said : “In order to make the tender effectual for any purpose, it was the duty of the defendant to pay his money into court, and allege that fact in his answer. The tender is thus kept good.” Sections 731 and 732 of the Code of Civil Procedure only apply where a tender is made after the commencement of an action, and do not affect any of the questions raised in this case.

The plaintiff insists that the tender,' if made, was not kept good, because the defendant did not include, in the amount deposited by it in court, interest upon the sum of $12.50, from the time it was due, February 1st, until the time of such deposit in court. If sending the check to the plaintiff was a sufficient tender, it stopped interest from that time forth. “Before interest can be allowed in any case, it must be by virtue of some contract, expressed or implied, or by virtue of some statute, or on account of the default of the party liable to pay, and thus it is allowed as damages for default.” Matter of Trustees of New York & Brooklyn Bridge, 137 N. Y. 95-98; 50 St. Rep. 182. In this case there was no default upon the part of the defendant. It tendered payment in the manner it had been invited and accustomed to pay, and it was, under the circumstances, a legal tender. A legal tender is equivalent to payment as to all things that are incidental or consequential to the debt. The creditor, while not losing his right to the prior debt by his refusal of the tender, does lose all collateral benefit and securities; and, where the tender is followed by the payment into court, interest and costs cannot be recovered. Koriright v. Cady, 21 R. Y. 343, 347, 366. If, on the trial, the defendant establishes the defense of tender, such tender bars the recovery of all interest subsequent to the tender. Kelly v. West, 36 Super. 304. In Riley v. Cheesman, 75 Hun, 387 ; 57 St. Rep. 699 ; and Nelson v. Loder, 132 N. Y. 288; 43 St. Rep. 946, it was held that, for the purpose of barring interest, the tender must be kept good from the time of the tender made up to the time of depositing the money in court. The case of Riley v. Cheesman was an action upon a note, and it was held that an amount sufficient must be kept on deposit to meet the note upon its presentation to-the bank; and in the other case, Nelson v. Loder, which was upon a mortgage, it was said “ that the money must be devoted to the-specific purpose of paying the debt, and to put it within the power of the creditor to receive it at any time.” In this case no question is raised as to the tender not being kept good in the time intermediate between the making of the tender by check and the-deposit of the money in court, but it appears that during all that time there was money in the bank to defendant’s credit sufficient to meet the amount of such check if it had been presented. The effect of a tender is to stop interest and prevent costs, and, to be effectual for such purpose, must be kept good by the debtor; and, whenever he seeks to make it the basis of affirmative relief, it must be paid into court, where the creditor can get it, and that fact alleged in the pleadings. Halpin v. Phoenix Insurance Co., 118 N. Y. 165-178; 28 St. Rep. 788. Here the parties were living at a distance from each other (one in Rorthville and the other in Troy), and the suit was commenced the day after the rejection of the tender; and the defendant was not called upon to make or keep his tender good by an offer in cash, other than that made in-his answer to the complaint, and his notice accompanying the same, when the time came for making his answer to such complaint. The tender being kept good by the defendant keeping himself at all times able to make a cash payment by having the necessary funds in the bank, and by the deposit in court, the effect of it relates back to the time when it was originally made, and bars the recovery of interest from that time. These conclusions lead to a reversal of the judgment. The facts being undisputed, judgment is therefore ordered for the defendant, with costs, together with the costs and disbursements of this appeal, from which amount should be deducted the sum of $45, with interest thereon from «January 1, 1894.

All concur.


text:
    Fitz Boynton, Resp’t, v. Ophelia E. Squires, Impleaded, etc., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 12, 1895.)

      1. Married women.
    When services are rendered for the benefit of the separate estate of a married woman, with her knowledge, the presumption" is that they were rendered at her request.
    3. Same.
    The fact that the goods were charged to the husband, does not necessarily relieve her, if the vendor did not know of her ownership.
    3. Pleading—Joint liability.
    The fact that the complaint charges a joint liability, does not relieve a defendant, if the facts warrant a finding of individual liability.
    Appeal from a judgment of the county court, affirming a judgment rendered in a justice’s court in favor of plaintiffs.

      E. E. Mellon, for app’lt; T. E. Courtney, for resp’ts.
   Merwin, J.

This action was commenced in justice’s court against the defendant and her husband, E. Frank Squires. The complaint was for goods sold and delivered. The main issue was whether the appellant was liable. There was a trial by jury, and a verdict against both defendants. The husband did not appeal. The plaintiffs were in the drug business, and the recovery was for paints and oils sold by plaintiffs at their store, and delivered to the two witnesses Galpin and Mullane in September, 1892, and taken by them onto a farm owned by the appellant, and there used in September, 1892, by the witness Galpin, in painting the buildings on the farm. Mrs. Squires became the owner of the farm in July, 1892, and she, with her husband, moved onto it in December, 1892. She was there about the buildings while the painting was being done. It may be inferred that the painting was being done preparatory to the subsequent occupancy. The husband directed the men to get the goods of the plaintiffs, and they were charged to the husband. There is evidence that the husband did not direct how they should be charged. There is evidence tending to show that the plaintiffs did not know that the wife owned the farm. The witness Mullane worked on the farm from-July to December, 1892, and he testifies that he worked for the defendants, and that the husband hired him and paid him. The witness Galpin testifies that the husband hired him, and that, in getting his pay, he sued both defendants, and recovered a judgment against both.

In Cutter v. Morris, 116 N. Y. 810; 26 St. Rep. 508, it is said that when services are rendered for the benefit of the separate estate of a married woman, with her knowledge, the presumption is that they were rendered at her request. The same doctrine was laid down in Fairbanks v. Moihersell, 60 Barb. 406. This ease was referred to, but not overruled, in the case of Jones v. Walker, 63 N. Y. 612, which is relied on by the defendant. See, also, Mackey v. Webb, 24 St. Rep. 838. In the present case, in view of the presumption referred to and of the evidence in the case, it was for the jury to say whether the painting was done at the appellant’s request, and, if so, it would then also be a question of fact whether the materials were not ordered by her request, and obtained by employes at work either for her alone or for her in association with her husband. The fact that the goods were charged to the husband did not necessarily relieve the wife, as the plaintiffs did not know of her ownership. Meeker v. Claghorn, 44 N. Y. 349 ; Fester v. Persch, 68 id. 400. The fact that the complaint charges a joint liability does not relieve the appellant if the facts warrant a finding of individual liability. Brumskill v. James, 11 N. Y. 294; Stimson v. Van Pelt, 66 Barb. 151. As the case stands, we think that the. judgment should be affirmed. Judgment affirmed, with costs.

All concur.