text:
    Isaac B. Ellsworth et al., Resp’ts, v. The Ætna Insurace Company, App’lt.

      (Court of Appeals,

      Filed March 25, 1887.)

    Evidence — Insurance (fire) — Best evidence possible — Inventory BOOK.
    In order to prove value of goods lost by fire, plaintiffs were allowed to introduce an inventory made by the firm from whom they had purchased the business (aided by plaintiff), ten months before the fire; also, the footings of an inventory, made by themselves a few days before the fire, entered in pass books, and transferred to the inventory book referred to. The trial occurred nine years after the fire. Held, no error.
    Appeal from order and judgment of supreme court, general term, fifth department, affirming an order of special term denying new trial.

      James M. Humphrey, for app’lt; Joel L. Walker, for resp’ts.

       Affirming 37 Hun, 638, mem.

   Per Curiam.

The principal errors alleged relate to the admission in evidence against the objection of the defendant. First, of the inventory made in November, 18-72, about ten months before the fire, on the sale made by-Bennett & Bean to the plaintiff Isaac B. Ellsworth of the, stock of goods and fixtures of Bennett & Bean; and, second, of the footings of the inventory made by Ellsworth & Son, September 10, lS^S, a few days before the fire, of the stock then on hand. The admissibility of this evidence is to be determined in view of the circumstances. Upon the issues as found, it was incumbent upon the plaintiffs to show the amount and value of the goods burned.

The plaintiffs, after the purchase from Bennett & Bean, continued the business to the time of the fire, selling from the stock purchased of that firm, and from new stock purchased from time to time, which was mingled with the old stock. The Bennett & Bean inventory was taken by the members of that firm, assisted by the plaintiffs and one Bowie, and was entered in a book, the articles being stated in detail, with the cost price. The sale to Ellsworth was made, upon this inventory, for the net costs, $7,710,07. The book containing the inventory was delivered to and kept by the plaintiffs in the safe in the store. The inventory of September 10, 1873, was entered in pass-books, the goods being classified, and the cost of each article in each class was given, and footings of the aggregate cost of each class were made. These footings, aggregating $6,325.25, were transferred by the plaintiffs, and entered in the inventory book containing the Bennett & Bean inventory. The pass books and the bills of purchase were kept in a desk, and were, with other books and papers, destroyed by the fire. The inventory book kept in the safe was not burned. The trial occurred nine years after the fire. The plaintiffs were severally sworn as witnesses in their own behalf, and testified as to the particulars of the loss, so far as they could recall them. It appeared from their testimony that many of the goods purchased of Bennett & Bean, and specified in the inventory of 1872, were in the stock at the time of the fire; and they enumerated a large number of articles bought'of Bennett & Bean then on hand; but they were unable to specify the exact quantities, or the exact cost from recollection. The same is true as to the new goods. Under these circumstances the court admitted the Bennett & Bean inventory in evidence as bearing upon the value of the classes of goods embraced therein, which were in the stock and were burned at the time of the fire, and the court also admitted the footings of the inventory of September 10, 1873, to be read from the Bennett & Bean inventory book. The admission of the Bennett & Bean inventory was not, at the time it was admitted, restricted in terms to the purpose named, but it was so limited in the charge. We think both this inventory and the footings of the second inventory were properly admitted.

The plaintiffs labored under great embarrassment in making out their case, owing to the burning of papers and memoranda, and the lapse of time, and seem to have given the best evidence bearing upon the issue at their command. The Bennett & Bean inventory showed what goods were purchased by Ellsworth, and their cost to Bennett & Bean, and also the prices paid by Ellsworth,—matters as to which the plaintiffs had no certain specific recollection. The price paid ten months before the fire for goods burned was some evidence of their value at the time of the fire. The footings of the inventory of September 10, 1873, were authenticated by the testimony of both the plaintiffs as correct footings of the inventory contained in the passbooks, and that they testified that they represented the cost of the goods. It is true that the evidence, as to the quality or value of the goods burned, was not very satisfactory, and the jury, as their verdict indicates, were of this opinion. But we think the rules of evidence were not violated.

There are no other questions requiring special notice

The order appealed from should be affirmed.

All concur.


source: Caselaw Access Project

author: Danforth, J.

license: Public Domain

text:
    Mary Jane Ward, Individually and as Ex’rx, Resp’t, v. De Witt Clinton Ward, App’lt.

      (Court of Appeals,

      Filed March 15, 1887.)

    1. Will—Construction—Executors when deemed trustees.
    Where testator by his will appointed his wife executrix, and his brother executor, and by a codicil says: “I do nominate and appoint 'them’ as-my trustees for the purpose of carrying out any of its provisions,” and it would be difficult, if not impossible to carry into effect the plan devised by the testator, except through the intervention of some third person who might collect, manage and retain his property until the time arrived for final distribution, and the executors are to pay debts and disburse the income with power to change investments, etc. Held, that the executors, will be deemed trustees for the performance of their duties to the same extent as though declared to be so by the most explicit language.
    3. Same—Suspension of power of alienation.
    The will contained the following clause. “And upon my wife’s decease, the use and income of all my estate, subject to the above provisions, to my two sons, share and share alike; and upon the decease of my sons, I give, -bequeath and devise to their heirs, should both have heirs, their father's portion only, share and share alike; and in case of one having no heirs, then to the heirs of the other, share and share alike; and if both should have no heirs then as the law directs. Held, that this was a suspension of the power of alienation for more than two lives, and thus void.
    Appeal from judgment of supreme court, general term, first department, affirming judgment of court below, with costs to all parties out of the fund.
    The action is brought for the purpose of obtaining the direction of the court in regard to certain questions arising on the will of Mortimer Ward, deceased. The plaintiff is his widow and the executrix of the will, and in both capacities interested in its construction. The defendants are De Witt Clinton Ward, executor and brother of the deceased, Walter Edmund Ward and De Witt Clinton Ward, his only children, and Abby P. Ward, the mother, Sarah. Brindley, the aunt, and Henrietta B. Ward, the sister, of the testator, and beneficiaries under his will.
    The defendants appeared and answered separately. A trial was had at the special term, and from the judgment there DeWitt Clinton Ward, the son, alone appealed to the general term, and from its judgment he appeals to this court.
    The following is a copy of the will and codicil. The will bore date November 20, 1870, the codicil March 27, 1882: “First. I commend my immortal being to Him who gave it, and my body to the earth, to be buried, with as little expense or ostentation as maybe necessary, by my executors hereinafter named; and as to my Worldly estate and all the property, real and personal or mixed, of which I shall die seized and possessed, or to which I shall be entitled at the time of my decease, I devise, bequeath, and dispose thereof in the manner following, to wit:

      “My will is that all my past debts and funeral charges shall, by my executors hereinafter named, be paid out of my estate as soon after my decease as shall by them be found convenient. I give and bequeath unto my beloved wife, Mary Jane, all my household furniture, and to her the use and income of all my real and personal estate during her natural life, should she not marry again, subject to the necessary expenses of living, which includes everything that may be required for my two sons, DeWitt Clinton and Walter Edmund, until they arrived at the age of twenty-óne years, if it should be necessary, and the necessary expenses for good schooling and a collegiate education, if either or both of them should desire it, without any reference to their intention of following a profession. And further, upon their arriving at the age of twenty-five years, I desire that each should have in real or personal estate equal to $10,000, or instead an equivalent in money of $10,000; and my executors are authorized to dispose of any of my property to pay these legacies. In case I should have other heirs, they are to be treated the same as those mentioned, and share and share alike. And, further, I desire that such sums, from time to time, as may be necessary and deemed advisable, be paid to my mother, Abby P. Ward, my aunt, Sarah Brindley, and my sister, Henrietta B. Ward, should she remain single, that they, or either of them, may not want for the necessaries of life. And, upon my wife’s decease, the use and income of all my estate, subject to the above provisions, to my two sons; share and share alike; and, upon the decease of my sons, I give, bequeath, and devise to their heirs, should both have heirs, their father’s portion only, share and share alike; and, in case of one having no heirs, then to the heirs of the other, share and share alike; and, if both should have no heirs, then as the law directs. And, should my wife marry again, I give and bequeath to her, in lieu of all dower, $10,000 in money, to be paid to her by my executors, hereinafter named, and they are authorized to dispose of any of my property to pay the amount.
    “Should my executors deem it necessary and advisable, for the better security and interest of my estate, to change the investment of my property, they may dispose of all or any part of it, and invest the proceeds in United States government, New York state, or New York city, bonds, registered, or on good bond and mortgage, or New York city or Brooklyn city improved property, in sums of not more than $10,000 each, upon property at a moderate value worth at least double the amount.
    “ I hereby appoint my beloved wife, Mary Jane, executrix, and by brother, De Witt Clinton Ward, executor, of this, my last will and testament, hereby revoking all former wills by me made, without giving security.”
    This will was dated November 24, 1870; and on March 27, 1882, the the testator duly executed the following codicil thereto:
    “I, Mortimer Ward, the testator named in the above will, do hereby make, publish, and declare the following r codicil thereto: I desire that my sons shall each receive the sum of $10,000, either in property or money, when they arrive at the age of thirty years, instead of twenty-five, as mentioned above. I do nominate and appoint my executors named in the above will as my trustees, for the purpose of carrying out any of its provisions.”

      James M. Hunt, for app’lt; George G. Be Witt, Jr., for resp’ts.

       Modifying and affirming 39 Hun, 658.

   Danforth, J.

The testator died in August, 1884, leaving a will and codicil, which were duly admitted to probate as a will of real and personal estate. These, under established rules, are to be taken as one instrument, and construed together as expressing the intent of the testator. If in one, therefore, the omission of certain technical words gives color to the contention of the appellant that no express trust is created, the other declares the design of the testator that the executor and executrix shall take the residuary estate for the object declared and set forth in the will, and it is sufficient if from the two instruments it can be implied that his intent was to establish a trust. Morse v. Morse, 85 N. Y., 53.

By the will he appoints his wife executrix, and his brother executor, and by the codicil he says: “Ida nominate and appoint ” them ‘ as my trustees for the purpose of carrying out any of its provisions.” In the first place, it would be difficult, if not impossible, to carry into effect the plan devised by the the testator except through the intervention of some third person who might collect, manage, and retain his property until the time arrived for final distribution. Such functions are imposed on the executors. They are to pay the debts of the testator out of his estate as soon “as shall by them be found convenient.” Each son is to have in property or money $10,000 on arriving at the age of thirty years. It was also the intention of the testator to provide for the support of his mother, his aunt, and his sister out of the property, and that so much as might be necessary should be paid to them for that purpose. To his wife the testator gave all his household furniture, “and the use and income ” of all his real and personal estate “ during her life,” or “until, after” his “ death, she marries;” but in that case, “in lieu of all dower, $10,000 in money to be paid ” by his executors, and they are in terms authorized to dispose of any of his property to pay this sum, or to pay the legacies given to his sons. And although, as we have seen, his wife was to have the income of his estate, the executors are authorized in their discretion “to change the investment of” the testator’s property, or dispose of all or any part of it, “ and invest the proceeds ” in United States government, or New York state, or New York city, bonds, registered, or .on bond and mortgage.

Upon his wife’s decease the testator gives the “ use and income ” of his estate, subject to diminution by the support of his relatives above named, and the' payment, when due, of the legacies to his sons, to those sons, “ share and share alike; and, upon the decease of his sons, to their heirs, should both have heirs, their father’s portion only; and, in case of one having no heirs, then to the heirs of the other, share and share alike; and, if both should have no heirs, then as the law directs.” It is plain, therefore, that the executors are to have the management and direction of and title to the property not specifically bequeathed, until the children attain the age of thirty years, and upon their death only the residue goes to whomsoever shall be entitled to it in remainder. The executors may not only invest, but re-invest; and in whose name, if not their own, shall the government, state, or city securities be registered? They may also sell any part of the estate as in their judgment becomes necessary. They are to divide, therefore they are to receive, the income. By these incidents the case seems to be brought within the rule that when the duties imposed are active, and render the possession of the estate convenient and reasonably necessary, the executors will be deemed trustees for the performance of their duties, to the same extent as though declared to be so by the most explicit language. Tobias v. Ketchum, 32 N. Y., 319; Robert v. Corning, 89 N. Y., 225.

' The remaining question has been presented with much earnestness on the part of the learned counsel for the appellant, and is of greater difficulty. His contention is that the power of alienation of a portion of the estate is illegally suspended for a period beyond two lives, and the argument is placed on words already quoted. As before suggested, the trust created by the testator will continue after the wife’s death and during the lives of the two sons. But upon the death of either, the children of the one dying, if he has any, will be entitled to his share, but, if he has none, then the heirs of his brother will be entitled to it; and, upon the death of that brother leaving heirs, the same re-suit follows. On both dying without heirs, the estate must go where the law directs. It follows that the property cannot be sold except for the purposes of the trust during the life of the widow. That is a suspension for life. It must remain undisposed of during the life of the son first dying, that is, the second life, and still undisposed of during the life of the other son; for the time fixed for distribution is the death of both sons. That makes the third life, and it is clear that the suspension of absolute ownership will or may exceed a longer period than the continuance of two lives. All these fives were in being at the time of the death of the testator, and must terminate, not only as a condition precedent to the taking effect of the gift over, but before it can be known who wrill be entitled ultimately to take. This limitation is too remote, and renders the disposition void. 1 Rev. St. 773, section 1; Knox v. Jones, 47 N. Y., 389; Colton v. Fox, 67 N. Y., 348; Smith v. Edwards, 88 N. Y., 92; Bailey v. Bailey, 97 N. Y., 460.

In Monarque v. Monarque (80 N. Y., 320), the widow had the first fife-estate, and at her death the four daughters of the testator took for fife, and upon the death of any daughter the fee of one-fourth part at once vested in her children. In Wells v. Wells (88 N. Y., 323), there was a similar provision, first for the wife, then for the testator’s children; but it was also provided that, upon the death of either child leaving issue, such issue or next of kin should take his proportion. In neither case was the final disposition of the estate suspended beyond the first and second fife; for, that ending, the share of the child dying was at once liberated from the trust. But in the case before us it is otherwise. The testator provides for the devolution of the share of the child dying to the heirs of that child, if any, but if not it is still to be held by the trustee for the children of the other son; and until it is seen that neither has issue does the trust terminate.

Another question is presented by the pleadings, and was considered by the court below—that relating to the mother, aunt and sister of the testator, all beneficiaries under the will; but we understand from concessions of counsel on the argument of this appeal that it was no longer deemed material by either party. Other questions raised by the pleadings, and answered by the court below, become material by reason of the death of the the testator’s widow unmarried, and still others are not presented on this appeal; but on the question argued we think a valid trust was created by the testator, to continue during the life or widowhood of the plaintiff, Mary Jane Ward (and, she having died, that question, even, becomes unimportant); but as to the residuary estate then remaining, it should be divided according to the statute of distributions in cases of intestacy.

The judgment appealed from should be so modified, and, as modified, affirmed; the costs of this appeal to be paid out of the estate.

All concur.


author: Freedman, J.

text:
    Franklin J. Minck, Pl’ff, v. Edward Martin, Def’t.

      (New York Superior Court, General Term,

      Filed February 14, 1887.)

    Husband and wife — Separation—When husband liable for necessaries.
    Where a husband has forced his wife to leave his house and had thereafter refused to provide for her, he is liable for necessaries furnished to her in good faith and in ignorance of the pendency of an action for separation, even to one who was forbidden to trust her on his account. Gatlin v. Martin, 69 N. Y., 393, distinguished.

    Exceptions taken by the plaintiff ordered to be heard at general term in the first instance.

      C liarles Putzel, for pl’ff; O liarles Blandy, for def’t.
   Freedman, J.

This action was brought to recover for necessaries furnished by the plaintiff to defendant’s wife.

The evidence given at the trial would have authorized the . jury to find that the articles furnished consisted of groceries and were necessaries; that they were furnished by the plaintiff on the wife’s application, but on the credit of the defendant, between July 15 and August 15, 1885, during which time the defendant and his wife lived separate and apart from each other, and the defendant refused to provide for her, and that the defendant refused to pay, etc.

But it also appeared that on May 21, 1885, defendant’s wife commenced an action against the defendant for separation and support on the ground of abandonment; that issue was joined in said action; that in it the wife made a motion for alimony during the pendency of the action; that said motion was denied on July 24, 1885, and that in January, 1886, the action was discontinued.

Upon these facts and the decision by the court of appeals of Catlin v. Martin (69 N. Y., 393,) the trial judge directed a verdict in favor of the defendant, and ordered plaintiff’s exceptions to be heard at general term in the first instance.

The view taken was that during the pendency of the action for separation, no authority was vested in the wife to charge her husband’s estate for necessaries, and on the part of the husband no obligation would be implied to pay for such necessaries, and that her remedy was by motion for alimony.

This view and the disposition made of the case were erroneous. Catlin v. Martin was an exceptional case. The plaintiff was the mother-in-law of the defendant. She brought suit for alleged necessaries, furnished by her to her daughter, the wife of the defendant. But it appeared that the defendant furnished and supplied necessary and suitable maintenance and support for his wife so long as she lived with him; that he never neglected or refused such maintenance or support during the continuance of the marriage contract; that defendant’s wife voluntarily left him, and lived with her mother, who encouraged her in so doing, and induced her to remain away from the defendant by offering to support and maintain her so long as she should continue to live with her. It was with reference to this state of facts that the defendant was held not liable, and that Allen, J., in delivering the opinion of the court of appeals, said, among other things, the following, viz.:

“After the commencement of the action for a divorce there is no evidence that the defendant was called upon, or refused, to supply his wife with necessaries, and had the wife desired support pendente lite, her remedy was by application for alimony, and there is no implied promise of the defendant to pay for necessaries furnished during that period. The board "of the wife by the plaintiff during this time was but the continuance of the voluntary support furnished by her, as found by the referee.”

And this was said in reference to the claim advanced by the plaintiff that, although she might not be entitled to recover her full bill, she ought to be allowed to recover at least for the board of the wife during the pendency of the action for a divorce instituted by her, and for expenses incurred for medical attendance. .

In the case at bar the facts are entirely different. At least there was evidence to the effect, and upon which the jury might have found, that the defendant had forced his wife to leave his house and had thereafter refused to provide for her, although requested so to do;' and that the plaintiff had supplied her with necessaries in good faith and in ignorance of the pendency of the action for a separation.

In such a case a husband is liable for necessaries furnished to the wife—even to one who was forbidden by him to trust her on his account; and such liability continues during the pendency of divorce proceedings—at least up to the time of the actual payment of alimony. Lord v. Thompson, 41 Supr. Ct. R., 115; Sykes v. Halstead, 1 Sandf., 483.

Plaintiff’s exceptions should be sustained, the verdict set aside and a new trial ordered, with costs to the plaintiff to abide the event.

Sedgwick, Oh. J., concurred.


author: Truax, J.

text:
    George W. McLean, as Receiver of Taxes, Resp’t, v. The Manhattan Medicine Company, App’lt.

      (New York Superior Court,

      Filed April 2, 1887.)

    Corporations—Tax on—Complaint—In action to recover tax—What MUST BE ALLEGED.
    The complaint in an action to recover a tax imposed upon an incorporated company, must allege that a demand has been made upon the president, or other proper officer of the company taxed.

      Thorndyke Saunders, for app’lt; John J. Townsend, Jr., for resp’t.
   Truax, J.

The principal reason assigned to us why the complaint does not state facts sufficient to constitute a cause of action is that it does not allege that a demand was made by the receiver of taxes upon the president or other proper officers of the defendant before the commencement of the action.

The general method in which the taxes imposed upon incorporated companies are to be collected is prescribed by title 4, chapter 13, part 1 of the Revised Statutes (Banks’ 6th ed., p. 979).

These provisions are modified in but a slight degree by title 1, chapter 16 of the Consolidated City Act of 1882.

Section 1 of the act first above cited provides that “all money or stock corporations deriving an income or profit from their capital or otherwise shall be liable to taxation on their capital in the manner hereinafter prescribed. ”

Section 18 (17) provides that “the collector shall demand payment of all taxes assessed on incorported companies, and if not paid, shall proceed in the collection and payment thereof in the same manner as in other cases.”

This provision became a part of the Consolidated City Act and is section 848 of that act.

Now the proceeding authorized by this title, and by the title of the Consolidated Act above referred to, is among other things the collection of a tax which has been duly imposed upon an incorporated company and which remains unpaid.

This section says that before the collector—or in the city of New York, the receiver of taxes—shall proceed in the collection of taxes he shall make a demand upon the president or other proper officers of the company taxed.

No such demand has been alleged in this case. Where a statute requires a demand it is a condition precedent to the action, and. the action itself is not a sufficient demand, Thompson v. Gardner (10 Johns. 404); Downs v. Phœnix Bank (6 Hill, 297).

Section 848, which requires the demand, is not repealed or modified by section 863. Section 848 says that the officer proceed in the collection of a tax, and then section 863 provides the manner in which the officer shall proceed in the collection of the tax, namely: he shall proceed in an action in any court of record in this state, and may recover the tax, with interest and costs, in such action.

Since the plaintiff must amend in this particular point, there is no reason why he should not allege in his amended complaint that the defendant is a corporation deriving an income or profits from its capital or otherwise, and so avoid the other objections to the complaint raised by the defendant.

The judgment and order below are reversed, and the demurrer to the complaint is sustained, with costs, and with leave to the plaintiff to amend the complaint on payment of such costs.

Dugro, J., concurs._


author: Sedgwick, J.

text:
    Annie L. Campbell, Resp’t, v. William Campbell, App’lt.

      (New York Superior Court, General Term,

      Filed May 2, 1887.)

    1. Conversion of personal property—Value how proved—Evidence.
    On the trial of an action for damages for the conversion of personal property witnesses acquainted with market values testified that by use the depreciation of the articles was of different percentages specified by them. Held, that it was not a basis of an estimation of value in the absence of proof of what was the original value.
    3. Same—When insurance policy not evidence of value.
    The defendant ordered a witness to procure a policy of insurance on the property and to have the property insured as belonging to plaintiff, but did not give any directions as to the amount of the insurance but told the witness to have the valuation made by the plaintiff. The plaintiff accordingly made the valuation in the absence of the defendant and it was inserted in the policy In the absence of proof that defendant knew what valuation had been inserted in said policy it was not evidence of the value of the property.
    3. Same—Evidence—When relevant and material.
    The plaintiff and defendant had been husband and wife. The plaintiff claimed that the property in question had been for the most part given to her by the defendant before the marriage had been disssolved. After the gifts had been made she went to a jeweler’s shop and ordered a valuable pair of earrings. The jeweler having been informed by defendant that he. would not pay for articles not bought by himself sent a clerk to the dwell ing of plaintiff who told her that the articles could not be sent to her because of her husband’s instructions. She became very excited and with repeated oaths said she would smash every thing in the house; that she would get even with him. Held, that it was error to strike this from the evidence as irrelevant and immaterial.
    Appeal by defendant from judgment entered upon report of referee.

      William B. Darling, for app’lt; Frank J. Dupignac, for resp’t.
   Sedgwick, J.

The action was for damages for the conversion of personal property. The judgment must be reversed for a want of proof of the value of certain articles, a value of which based upon incompetent testimony was reported favorably to the plaintiff to an important extent. Certain witnesses acquainted with market values testified that by use the depreciation of the articles was of different percentages specified by them. This was not a basis of an estimation of value in the absence of proof of what was the original value. No proof was given unless it was in the testimony of the plaintiff herself. Some of the articles had been bought by her, not in shops, but by private bargain with persons not in trade— that is, the plaintiff did not buy theso articles in the market. What she gave for these she at first testified to, but her testimony on that point did not prove values. Other articles had been gifts to plaintiff, and she was not competent as a witness to their value. Indeed, all the testimony of the plaintiff as to the valuó of articles which she did not buy in shops or stores was stricken out. This testimony being out of the case, the plaintiff should not have recovered, as she did, the value that was assigned to them by the referee.

The force of these objections, it is argued for respondent, does not call for a reversal, because the value of the articles converted was admitted by the defendant to the extent to which there was a recovery. This admission, it is claimed, appears in a policy of fire insurance taken out on the order of the defendant, and the articles insured in it are insured as the property of the plaintiff, tho loss being payable to her. In it, the value of the property is given. The testimony shows that the plaintiff ordered a witness to procure the policy and to have the property insured as belonging to the plaintiff, but the defendant did not give any directions as to the amount of the insurance, but told the witness to have the valuation made by the plaintiff. The plaintiff accordingly made the valuation in the absence of the defendant, and it was inserted in the policy. There is no proof that the defendant ever knew, what valuation had been inserted in the policy. The preponderance of testimony is to the contrary. Although the policy might have been evidence as to the ownership of the property, it was not evidence of its value. I am of opinion that the objections have not been met.

The plaintiff and defendant had been husband and wife. The plaintiff claimed that the property in question had been for the most part given to her by the defendant before the marriage had been dissolved. After the gifts had been made, as she claimed, she went to a jeweller’s shop and ordered a valuable pair of earrings. The jeweller was informed by the defendant that he would not pay for articles not bought by himself. A clerk was sent to the dwelling of the plaintiff, and he there told her that the articles could not be sent to her because of her husband’s instructions. She became very excited, and with repeated oaths said she would smash everything in the house; that she would get even with him. The witness to this testified that he left - her still swearing that she would get even with her husband - if these stones were not sent up at once. The referee, on the motion of counsel for plaintiff, struck this from the evidence as irrelevant and immaterial. .

I am of opinion that the referee should have retained the testimony and used it in arriving at a conclusion from the whole case. For the most part, the plaintiff’s title arose from words of gift, as to which she was in several instances the sole witness. In all cases, testimony as to words should be examined with caution, and especially in this case, where a slight change of words-—almost a difference of intonation—would make a declaration of a gift, when there was none in fact made. Animosity or a vindictive feeling toward the defendant might give the witness a bias, which should be considered in ascertaining the exact weight of the evidence. I think the testimony stricken out was pertinent to proof of such a bias.

Moreover, there was a direct conflict between the parties as witnesses as to whether there had been the gifts claimed by plaintiff. It would have been under the evidence proper for the referee to consider whether the plaintiff proposed in her threats to smash her own property, to get even with the defendant, or to smash his property with such a purpose.

The referee was not bound to any particular construction of her threats. A construction should have been given in connection with all the facts. If, irrespective of the due weight of this testimony, the scales were but slightly in. favor of the plaintiff, they might have been turned in favor- ■ of the defendant if the threats had been considered. As the case stands, I do not perceive such a preponderance of testimony in favor of the plaintiff that a consideration of this testimony could not have changed it.

In determining this appeal, it is not intended to pass one way or the other upon the sufficiency of the facts to show the gifts claimed by the plaintiff. The first impression might be, that it did not appear that the referee applied any rule of law erroneously. Yet the merits of such cases are so dependent upon the specific testimony given, that no aid can be furnished to the new trial in advance of the knowledge of what will then appear.

The judgment should be reversed, the order of reference vacated and a new trial ordered, with costs to abide event.

Freedman and O’Gorman, JJ., concur.


text:
    Bessie Farjeon, App’lt, v. Hugh J. Grant, Sheriff, etc., et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed May 2, 1887.)

    1. Sheriff—Substitution of indemnitors—Conversion — Allegations CHARGING.
    The complaint in this action alleged that the defendants wrongfully and unlawfully, and with malice and with intent to injure the plaintiff and destroy her business, for the profit and advantage of the defendants, they, the said defendants, unlawfully took and carried away, and converted to their own use, and still retain from her, the goods, chattels, etc. Held, that merely a conversion was charged, and that its consequences were not enlarged by an allegation of motive or intent.
    2. Same—Action for is within provisions of Code of Crv. Pro., § 1421.

      Held, that this action was of the kind within the intention of Code of Civil Procedure, section 1421.
    3. Same—Complaint—Service of—Code of Civ., Pro., § 479.
    An application having been made by the indemnitors of a sheriff that they should be substituted as defendants in his place, in an action for the conversion of goods levied upon by him under an execution, and the attorneys of these parties have already appeared in the action for defendants, other than the sheriff. Held, that it was doubtful whether the provisions of Code of Civil Procedure, section 479, relieving the plaintiff from a further service of the complaint on the indemnitors, was applicable.
    Appeal from an order substituting as defendants the indemnitors of the sheriff in the place of the sheriff, under section 1421, Code Civ. Pro.

      James A. Hudson, for app’lt; Wales F. Severance, for resp’ts.
   Sedgwick, J.

The first objection to the order made is that the action is of a kind not within the intention 1421st section, Code Civ. Pro. . It is argued that the code refers to actions' for conversion simpliciter when the sheriff has taken under process property which he is not justified in taking, but that the present action is for a willful and malicious trespass by the sheriff, made with the intention of breaking up the business of plaintiff. In my opinion the complaint claims conversion only, and that under it damages for conversion only can be recovered. The so-called malice and intent to break up the business, as alleged in the complaint, do not alter the act of conversion or give greater damages than those that follow a conversion, for the only thing averred to have been actually done by the defendants was taking and converting and retaining goods.

The complaint charges that “the defendants wrongfully and unlawfully, and with malice and with intent to injure the plaintiff and destroy her said business for the profit and advantage of the defendants; they, the said defendants, unlawfully took and carried away and converted to their own use, and still retain from her, the goods and chattels, etc.

It is not meant to deny or affirm that there may be a malicious trespass connected with a conversion which will give a right to exemplary damages, or which will have as a proximate result other damages than is measured by the value of the property taken. Such a case is not described in the complaint. A bare conversion is charged, and its consequences are not enlarged by an allegation of motive and intent.

The next objection is that the application did not show that the indemnitors were liable for all that the sheriff seized under the execution. The affidavit said on this subject that “under said execution the defendant sheriff levied on the property, or part thereof, referred to in the complaint.” It is supposed that this may become a case of the indemnitors being responsible for part and the sheriff responsible for the rest.

Taking all the affidavits and papers, they show that the indemnitors were responsible for all that the sheriff took, but the extract from the affidavits reserves the question of fact of what the sheriff did actually take.

The order as made required the plaintiff to serve upon the indemnitors’ attorneys a copy of the complaint. It is supposed that as those attorneys had already appeared for the defendants other than the sheriff, it was not necessary under section 479 of the code to make a further service upon the indemnitors becoming defendants. It may be doubted whether section 479 is to be applied to this case. If it be applicable the appellants have not been injured by a direction that tended to certainty and regularity and the progress of the action.

The order should be affirmed, with ten dollars costs.


author: Per Curiam.

text:
    Alice Winans, App’lt, v. Ross R. Winans, Resp’t.

      (New York Superior Court, General Term,

      Filed May 2, 1887.)

    1. Divorce—Reference by consent—Trial by jury—Waiver of—Cannot BE RE-CLAIMED AFTER WAIVER.
    The plaintiff, having freely, deliberately, and on the advice of her counsel, elected to have the issues in her action referred, and a motion having been made in open court by him for an order of reference, with the consent of the defendant, just having been obtained thereto, will not be permitted by the court to revoke her action, and be restored to the full enjoyment of her right to trial by jury, which she had voluntarily and solemnly waived. A constitutional or statutory right, having been once waived, cannot be reclaimed.
    2. Power of court to grant relief.
    There are exceptional cases where the court, in its discretion and in the furtherance of justice, and to defeat fraud or manifest wrong, may go far to relieve a party from the consequences of his own act.

      Appeal from order denying plaintiff’s motion to vacate, the order of reference.

      George M. Curtis, for app’lt; Scudder & Carter, forresp’t.
   Per Curiam.

The order should be affirmed with ten dol-

lars costs, upon the opinion of the learned judge at special term.

The opinion of O’Gorman, J., at special term was as follows:

This is a motion on behalf of the plaintiff for an order vacating and setting aside an order of reference entered herein on the 21st day of April, 1885, and that the cause be restored to the general calendar of the court for trial before a jury on the issues heretofore framed.

The motion is made on all the papers, pleadings and proceedings in the case.

The action is for absolute divorce.

The plaintiff claims that she became the wife of the defendant, on, or about May 31, 1881, not through any ceremonial marriage, but by reason of the defendant’s request that she should become his wife, and her consent thereto, which agreement had been preceded and was followed by cohabitation.

The defendant’s answer denying a marriage having been put in, the plaintiff, by D. M. Porter, her attorney and counsel, moved this court at special term for an order settling issues of fact to be tried by jury; and an order to that effect was made on October 4, 1883. In April, 1885, the case was regularly called on the day calendar before one of the judges of this court, sitting for the trial of issues by jury, and both sides answered ready when the case was called.

The case remained on the day calendar for two weeks not reached, by reason of the trial of causes ahead of it on the calendar, and counsel on both sides continued to answer ready.

On April 21st, 1885, the case immediately preceding this case on the calendar, being on trial, and the trial nearly completed, the counsel for the plaintiff proposed to counsel for defendant that the case be referred to a referee to be chosen by the court, and the counsel for the defendant, agreeing thereto, a written consent to refer was signed by both counsel, and counsel for the plaintiff informing the presiding judge that both parties had consented to a reference, and both counsel consenting thereto in open court, an order was made by the trial judge on the 21st day of April, 1885, vacating the order settling issues to be tried by a jury, and appointing Stephen P. Nash, referee, to hear and determine the issues in the cause.

The trial of the cause was thereupon commenced before the referee, on May 14, 1885, and continued on various days, considerable important testimony being taken until June 3, 1885, when it was interupted by reason of the departure of the referee for Europe, and the further trial postponed.

On May 25, 1885, during the course of the trial before-the referee, Mr. D. M. Porter, the plaintiff’s counsel retired from the case, and was succeeded by Mr. George M. Curtis,, the present attorney of record and counsel for the plaintiff, at the trial before the said referee, and Mr. Curtis has since then acted as plaintiff’s counsel on the reference, until the adjournment of the trial by reason of the absence of the referee.

The chief reasons now presented to the court for granting the order asked for, are that the plaintiff, although she authorized her counsel, Mr. Porter, to propose a reference, was not then fully aware either that she thereby waived her constitutional right to trial by jury, or of the expenses of a reference as to stenographer’s minutes, etc.

To the referee himself no objection is made. It is conceded that he is in all respects competent and capable of rendering a just and impartial decision.

The question is, whether the plaintiff, having freely, deliberately, and on the advice of her counsel, elected to have the issues in her action referred, and a motion having been made in open court by him for an order of reference with the consent of the defendant just having been obtained thereto should now be permitted by the court to revoke her action and be restored to the full enjoyment of her right to trial by jury which she had voluntarily and solemnly waived. That she had such a right is beyond doubt. Code, §§ 968, 1012.

It is equally certain that the right could have been waived, and was in fact waived by her. Code, §§ 1008, 1009; In re Hughes, 93 N. Y., 512. And a constitutional or statutory right having been once waived cannot be reclaimed. In re Hughes, supra; Baird v. The Mayor, etc., 74 N. Y., 386.

There may no doubt be cases where the court, in its discretion, and in furtherance of justice, and to defeat fraud or manifest wrong, may go far to relieve a party from the consequences of his own act, but the case should be strong indeed, to warrant such indulgence in such a case as this.

I have read the motion papers, and endeavored to inform myself of the facts of this case, for the purpose only of ascertaining if any fraud had been practiced on the plaintiff, or any unfair or improper inducement used to lead her to ' agree to a reference, or if any wrong has been inflicted upon her, or is threatened by reason of her agreement to refer.

I can see no evidence of any such fraud or wrong or danger. That she is too poor to pay stenographers’ fees is not an unusual misfortune of litigants in suits of this nature, and a remedy is not beyond the reach of this court.

For any other purpose than that above stated, the merits of this case have not been considered on this motion. The plaintiff and defendant are equally entitled to a fair and proper hearing and decision of the matters in controversy between them. The rights of each must be equally respected.

It is the right of the defendant now to proceed with the trial before the tribunal agreed on by him and his opponent and selected by this court. I see no reason why he should be obligéd to forego that right.

In order, however, to remove all possibility of injurious disability in the plaintiff to present her evidence, and place it under examination of her counsel, I will order that the defendant provide her or her attorney with copies of the stenographer’s minutes of all the testimony, on the demand of her attorney, at reasonable times; the cost of the same, however, to be charged against the plaintiff and deducted from any costs which she may recover against him in this action.

Except as to that indulgence, the plaintiff’s motion is denied, with ten dollars costs, to abide the event.


text:
    Alice Winans, App’lt, v. Ross R. Winans, Resp’t.

      (New York Superior Court, General Term,

      Filed May 2, 1887.)

    1. Practice—Discontinuance—Court mat impose terms or refuse.
    The court has the right to allow an action to he discontinued on terms, or without terms, or to refuse to discontinue it at all.
    3. Same—Plaintiff has not the absolute right to discontinue.
    The plaintiff has not the absolute right at all times and under all circumstances, to discontinue the action.
    Appeal from order denying plaintiff’s motion for leave to discontinue the action. Also appeal from judgment in favor of the defendant entered upon the report of a referee.

      Luther It. Marsh, for app’lt; James Q. Carter, for resp’t.
   Per Curiam.

Upon a careful examination of the whole case no exception is found, which under all the circumstances constitutes ground for reversal. The findings of fact made by the learned referee who determined the. issues, cannot be held to be against the weight of evidence, and they necessarily lead to the conclusions of law based thereon. The judgment should be affirmed, with costs, upon the opinion of the referee.

The motion of plaintiff for leave to discontinue the action during the progress of the trial was properly denied under the exceptional circumstances of this case, and the order of denial should be affirmed, with ten dollars costs, upon the opinion of the learned judge at special term.

The opinion of Truax, J., at the special term was as follows:

The court of appeals said in Carleton v. Darcy, that the court to which a motion to discontinue an action is addressed, has a discretion whether or not to refuse it (75 N. Y. 377), and in Matter, etc., of Waverly Water Works Co. (16 Hun, 57), it said the court in which an action is pending may impose terms beyond taxable costs as a condition of the discontinuance of the action.

It may require the plaintiff to stipulate that he will not sue again for "the same cause of action. The right to impose conditions grows out of, and is included in the right to refuse the discontinuance altogether.

These cases establish the right in the court to discontinue an action on terms, or without terms, or to refuse to discontinue it at all.

They show that the plaintiff has not the absolute right at all times and under all circumstances to discontinue the action. The plaintiff in this action waived her right to a trial by a jury, consented to a reference, and testimony has been taken by the referee.

For some reason the plaintiff became dissatisfied with the reference, and made a motion to set aside the consent to refer, and the order entered thereon. This motion was denied. It was claimed by the counsel for the defendant, and not denied by the counsel for the plaintiff on the argument of the motion to discontinue, that the plaintiff’s object in making such a motion was to secure by other means than an appeal a reversal of the order denying the motion to set aside the consent to refer. This she will not be allowed to do. There is another reason why the plaintiff will not be allowed to discontinue the action. She claims that she is the defendant’s wife. This claim the defendant denies. The defendant is entitled to have this claim speedily determined. The motion is denied.


text:
    Daniel Van Buskirk, Resp’t, v. Henry R. Cudlipp, App’lt.

      (New York Superior Court, General, Term,

      Filed May 2, 1887.)

    1. Bills and notes—Consideration.
    A due bill was made by the defendant, payable to the plaintiff, the consideration therefor being the transfer of an interest in a business. The agreement being that the amount of the due bill should be paid, unless the defendant being dissatisfied with the business, should return to the plaintiff what was transferred to defendant. The defendant afterward transferred it to a third party, as an assignee for the benefit of creditors. Held, there was a legal and valuable consideration for the due bill.
    2. Same— Confirmation of contract.
    Said assignment was made after the discovery of alleged fraudulent representations. Held, that the assignment was a confirmation of the contract.
    Appeal by defendant from judgment entered on verdict for plaintiff as directed by court.

      William E. Glover, for app’lt; Edward C. Ripley, for resp’t.
   Sedgwick, J.

action was upon a due bill, made by defendant payable to plaintiff.

The first defense, as claimed, was that the due bill was without consideration. The testimony showed that the consideration was the transfer of an interest in a business.

. It is claimed by defendant that the business had no value, or not the value represented by defendant. The agreement was that the amount of the bill should be paid, unless the defendant, being dissatisfied with the business, should return to the plaintiff what was transferred to defendant. The defendant did not return, but transferred it to a third party, as an assignee, for the benefit of the creditors of defendant and his partner. There was, therefore, a legal and valuable consideration.

The defendant also set up a counter-claim for damages, based upon allegations that the defendant had been induced to buy the interest referred to by fraudulent representations made by plaintiff.

If such fraudulent representations had been made and had induced the purchase, it is supposable that the defendant might have rescinded the original contract and demanded the repayment of the consideration that had been given by him. His own testimony showed that after he was informed of what he claims to have been the falsity of the representations, he affirmed the arrangement, not only by the assignment, but by other acts of dominion over the business, which acts confined him to the exercise of his right under the contract as made, to return the stock, etc., if he were dissatisfied.

As to a right to damages for fraud, in inducing the defendant to enter into the business, none were shown. The defendant conducted the business as he pleased. The business turned out to be unprofitable, but there was no evidence to show that this was the result of the non-existence of the facts claimed to have been represented by the plaintiff as existing, and not the result of the defendant’s management of the business.

As the learned judge was correct in the views he took, the judgment must be affirmed, with costs.

O’GrORMAN, J., concurs.

The trial judge, in directing the verdict, spoke as follows :

The damages sought to he recovered by way of counterclaim are not in a legal sense the natural or approximate consequence of the representations charged to have been made; nor are the representations thus actionable because the parties dealt with each other at arm’s length, and the representations constituted only what is commonly known as seller’s talk. Moreover, it now appears that a representation as to the cost of the machinery, fixtures, tools, etc., was true, or, at least, there is no evidence that it was false. All the other representations constituted mere expressions of opinion, and most of them related to future contingencies contemplated. In no aspect of the case, therefore, can the defendant recover on bis counterclaim.

Then the only question lis whether a defense has been shown by way of failure of consideration available to the defendant upon the cause of action sued upon. The contract provided that the $1,350 should become due and payable at the expiration of six months, if the defendant at that time was satisfied with the business. Assuming that at that time he was not satisfied, then, whenever he came to the point that he wanted to rescind, the contract provided that he had to return the machinery and the goods. He never returned them to the plaintiff. He turned them over to the creditors. By that act he disabled himself from ever rescinding, and, therefore, must be held liable upon that due bill. The plaintiff is entitled to the direction of a verdict.


text:
    Jeremiah O’Rourke, Resp’t, v. John Brown et al., App’lts.

      (New York Superior Court, General Term,

      Filed May 2, 1887.)

    1. Landlord and tenant—When that relation exists—Sale oe lease BY SHERIFF—WHAT PASSES.
    One Cooper had been the lessee of a lot and building, under a lease for the term of ten years. W. L. Flagg recovered judgment by default against him on a money demand. This judgment was docketed July, 1883. The default was opened, it was ordered that the judgment should stand as security, but no execution should be issued thereon until after the determination of the issues thereafter to be tried. After this, in October, 1883, Cooper assigned the lease to a certain corporation, and Flagg again recovered judgment against Cooper, in 1886. Under an execution, the sheriff sold, in 1886, all the right, title and interest of Cooper which he had July, 1883, or at any time thereafter has had or now has in and to said property. The lease was not in the possession of the sheriff, and had not been, and .was not in the possession of the plaintiff. The plaintiff claiming under the said sale, demanded rent of the defendant, who was in occupation of some rooms in the building, under a written lease given him by Cooper three days before he assigned his lease to the said corporation. The rent was refused, and this action was brought. Held, that the sheriff could sell or give only the right to possession, or title without possession; that the corporation, then being in possession of the lease, is the landlord of the defendant, and remains so until the plaintiff is put into actual possession. That rent is not due to the plaintiff.
    3. Same—When entitled to rent.
    Whether the plaintiff would be entitled to recover, unless he became lawfully possessed of defendant’s written agreement to pay rent. Qumre:

    Whether in an action for use and occupation, it is necessary to show that there was no written lease. Qimre.

      Appeal by defendants from judgment entered upon findings in a common law action, tried by consent, before the court without a jury.

      Francis Forbes, for app’lts; William L. Flagg, for resp’t.
   Sedgwick, J.

The action was for rent. One Henry P. Cooper, had been the lessee of a lot and building, under a lease for the term of ten years. William L. Flagg recovered judgment against him on a money demand by default, for want of answer. This judgment was docketed July 3, 1883. The default was opened but it was ordered that the judgment “should stand as security, but no execution to issue thereon, until after the determination of the issues thereafter to be tried. After this, and in October, 1883, Henry P. Cooper, assigned the lease to a corporation named ‘ The Henry P. Cooper & Co., Company.’ Flagg again recovered judgment against Cooper in 1886. The sheriff, published and posted, a notice that by virtue of the execution, he would expose for sale on July 24, 1884, ‘.all the right, title and interest, of Henry P. Cooper, which he had on the 3d day of July, 1883, or at any time thereafter, has had or now has, of, in and to the following described property, to wit: A certain indenture of lease made by etc., to said Henry P. Cooper, etc.’ ”

This is the lease that has been mentioned, at the sale; the plaintiff in this action, bid and received from the sheriff, a document, the substance of which is, “This is to certify that I did on the 24th day of July, etc., sell unto Jeremiah O’Rourke, for $500, all the right, title and interest of Henry P. Cooper, the. above-named defendant, which he had on the 3d day of July, 1883, or at any time thereafter, has had or now has, of, in and to the following described property, to wit: A certain indenture of lease made by, etc., to Henry P. Cooper, etc., being for the period of ten years, etc.”

The sale was made at the City Hall. The lease was not in the possession of the sheriff, and has not been, and is not in the possession of the plaintiff. The plaintiff claiming under the sale referred to, demanded rent of the defendant, who was in occupation of some rooms in the building, under a lease given by Cooper for five years and six months, from November 1st, to May 1st, 1889. This lease was in writing, and was made three days before Henry P. Cooper, assigned his lease to the corporation. The rent was payable on the usual quarterly days, and $1,250 was due on August 1st, after the sale referred to. The question in the case is, was the plaintiff entitled to recover this rent due August 1st 1

It must be noticed first that the plaintiff does not claim ever to have become possessed of the sub-lease of Henry P. Cooper to the defendants. As this contained their covenant to pay the rent it is an important fact in an action, for rent, but it is now noticed to point out that plaintiff claims nothing excepting through the lease to Cooper. On the argument the form of the claim was that the plaintiff had bought at the sheriff’s sale, not the lease, but the term. If he did acquire this term, it was only because the lease or Cooper’s interest in it, was sold to him. If the Henry P. Cooper & Company corporation received anything under the assignment to them, it was of the same nature, as of that which the plaintiff acquired.

The plaintiff takes the position that the execution sale was in enforcement of the lien which was made by the docketing of the first judgment in July 3, 1883. At that time, the lease .would run for more than five years. Being a chattel-real, under the statute, the docketed judgment, was a lien upon it. The lien was of a general nature and not specific.

The title to the property remained in the judgment-debtor. He had power to convey that title, although it was subject to the lien. His transferee took that title, subject as it was. The possession changed then to the corporation, and other objections being kept aside, the sheriff could thereafter sell or give only the right to possession or the title, at the most, without the possession. Lanning v. Carpenter, 48 N. Y., 412; Smith v. Colvin, 17 Barb., 157; Schemerhorn v. Merrill, 1 id., 511; Evertson v. Sawyer, 2 Wend., 507; People v. Nelson, 13 S., 340, and other cases.

The corporation, then being in possession of the lease or the term which ever it may be is the landlord of the defendant and remains so until the plaintiff, if he has such a cause of action is put in actual possession. This has not been done in this case and therefore rent is not due to the plaintiff. Evertsen v. Sawyer, supra.

If the lease or the term be looked at, as personal property, the result is not different. The sheriff had not made any levy actually, or even a constructive levy, if that be possible and his sale could not give any possession of what was pretended to be sold to the purchaser.

For these reasons the plaintiff was not entitled to recover rent from defendant.

Other matters should receive some attention, in confirmation of what has been said. The contention, actually turned upon whether the sheriff’s sale put the plaintiff in possession of the lease to Cooper or of its term. It was assumed, or it was not denied that the possessor of the lease or the term, became entitled to the rent payable by the defendants under the sub-lease made by Cooper to them. As has been said this sub-lease, which was in writing was never sold or assigned to the plaintiff. The plaintiff, therefore, never became possessed of the promise or covenant to pay rent.

At common law an action in assumpsit would not be except upon an express promise to pay. rent made at the time of the demise. Quackenboss v. Lansing, 6 Johns., 48. An action in assumpsit for use and occupation would not lie, Wood v. Wilcox (1 D, 38), excepting under the statute. 1 R. S., 748, sec. 26. The landlord can by that recover only under an agreement not "made by deed. But when the lease is by deed the action must be upon the covenant. Kiersted et al. v. O. and A. R. R. Co., 69 N. Y., 343. It is a question then, whether the plaintiff in an action for rent, must not produce in evidence the agreement, if the action be for use and occupation to show that it is not made by deed. If the action be upon the written promise or covenant, the plaintiff should be in possession of that promise or covenant. In this case, as rent did not necessarily follow an assignment or transfer of Cooper’s interest in the term of the lease to him. Bennett v. Austin, 81 N. Y., 308.

It is to be asked whether the plaintiff was entitled to • recover, unless he became lawfully possessed of defendant’s written agreement to pay rent. On this point, it is not intended to make any decision. It was not discussed or stated on the argument of the appeal. It may hereafter have such attention as it deserves.

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

Freedman, J., concurs.


text:
    Jeremiah O’Rourke, Resp’t, v. The Henry P. Cooper Company, impleaded with the Nippon Mercantile Company and others, App’lts.

      (New York Superior Court, General Term,

      May 2, 1887.)

    Landlord and tenant—When relation exists.
    A party is not entitled to recover rent from a sub-tenant where he does not hold the relation of landlord to the sub-tenants. See O’Bourke v. Brown, ante, 816.
    Appeal by defendant from judgment entered upon findings, etc., of judge at special term.

      George H. Forster, for app’lts; Wm. L. Flagg, for resp’t.
   Sedgwick, J.

The facts stated in the case of O’Bourke v. Brown, decided at this term, appeared in this action. It further appeared here that after the lease had been assigned to The Henry P. Cooper & Company, they sub-let to The Nippon Mercantile Company rooms in the building, reserving rent. ^ After the sale under execution to the plaintiff The Nippon Mercantile Company failed to pay rent, and The Henry P. Cooper & Company began dispossessory proceedings under the statute.

The justice ordered that a warrant of dispossession issue. Before it was issued, the proceedings under the warrant’ were stayed by order of injunction pendente lite made in’ this action.

The plaintiff in this action asked and obtained a judgment permanently enjoining the appellant. No other relief was asked against The Henry P. Cooper & Company. It was not asked that the plaintiff be put in possession of the premises, or that the plaintiff be adjudged entitled to the term assigned to The Henry P. Cooper & Company or to the sub-lease made by the latter to the The Nippon Mercantile Company. No legal action had been brought to determine the rights of the parties or to eject The Henry P. Cooper & Company, who were in possession of the term, adversely to the plaintiff claiming under the assignment that has been mentioned.

In O’Rourke v. Brown it has been held by this general term that the plaintiff was not entitled to recover rent from a sub-tenant because he did hot hold the relation of landlord to the sub-tenants.

The ground of that decision when applied to this case calls for a reversal of this judgment, for as long as Henry P. Cooper & Co. remained in possession of the lease or of the term under a transfer of the title to them, they were entitled to exercise all the rights that flow from a legal possession.

There is no differance in principle between the term for years and an estate in fee.

As they had such rights the plaintiff could not interfere with their exercise by injunction.

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

Freedman, J., concurs.

       See ante, page 816.


author: O’Gorman, J.

text:
    Dwight Ashley, as Administrator, etc., App’lt, v. James M Whitney et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed May 2 1887.)

    1. Discovery—Order for, rests in discretion of the court.
    The granting or denial of a motion for an order allowing a discovery, inspection and copies of books of a defendant, rests in the discretion of the court.
    2. Same—Petition for—When insufficient.
    A petition for such an order, disclosing as the ground for granting it merely suspicion of the incorrectness of the defendant’s accounts, without alleging any error detrimental to the plaintiff, is not sufficient.

      Appeal from an order made at special term denying a motion made by plaintiff for a discovery, inspection and copies of the defendants’ sale books, etc., containing transactions with plaintiff’s testator from 187U to 1885.

      Abel JEJ. Blackmar, for pl’ff and app’lt; W. H. Arnoux, for def’ts and resp’ts.
   O’Gorman, J.

—The granting or denial of this motion was in the judicial discretion of the court, and there is nothing before the court to show that that discretion has been abused.

The petition of the plaintiff disclosed his reasons for suspecting the general incorrectness of the defendants’ accounts, and for his expectation that testimony to prove errors can be found in the books.

But he does not specify any error or fraud in the accounts detrimental to plaintiff’s intestate, and the examination applied for would, if it had been granted, lead only to a search for evidence, without any special aim or special subject of inquiry. This is not the legitimate object of the motion.

The order appealed from must be affirmed, with ten dollars costs.

Sedgwick, J., concurs.


author: Sedgwick, C. J.

text:
    Julia M. Ferry, Resp’t, v. The Manhattan Railway Company, App’lt.

      (New York Superior Court,

      Filed May 2, 1887.)

    1. Negligence—Complaint—Motion to dismiss—When consideration of MERITS RENDERED UNNECESSARY ON APPEAL.
    This action was brought to recover damages for injuries resulting from, the negligence of the defendant’s servants in starting a train as she was leaving it. At the close of the plaintiff’s case, no testimony had been given which tended to show specifically wnat had caused the train to move before the plaintiff had alighted. The defendant’s counsel then moved to dismiss the complaint on the ground that tliere was no testimony to show that the moving of the train was due to any negligent act of the defendant's servant. Upon an appeal from the judgment; held, that the consideration of this motion was rendered unnecessary for the reason that before the case went to the jury there was testimony from which the jury were at liberty to infer negligence of the defendant.
    2. Same —Evidence—What is sufficient to sustain finding of.

      Held, that the evidence being such that from it the jury might infer that the train had been started by one of the train-men as admitted by him, but that he was not to be credited in his statement that he received a signal,.the case would then be that of the company being responsible for the train moving witnout explanation showing that due care had been used,- and that from this the jury might infer that the defendant was negdgent.
    3. Charge to jury—When unnecessary to charge in addition to charge already made.

      Held, that the trial judge having so charged the jury, that they could not if observing the charge find adversely to the defendant on any of the matters referred to in their requests, it was unnecessary for him to charge on any of the matters requested.
    4. Conflict of evidence—What is.
    Held, that the testimony of one of the witnesses on a point and the inference deducible from that of the others on the same point being at variance, it was not erroneous to charge that there was a conflict of evidence on the point and to refuse to charge that there was none.
    Appeal by defendant from judgment, for plaintiff, entered upon the verdict of a jury.

      Hugh L. Cole and Howard Townsend, for app’lt; Benjamin C. Hitchings, for resp’t.
   Sedgwick, C. J.

The action was for damages from the negligence of defendant’s servants. The plaintiff was a passenger upon the cars of the defendant. The train had stopped. Several passengers had left the car. The plaintiff was stepping upon the platform, when the train moved on and caused the plaintiff to fall. She w,as seriously hurt.

At the close of plaintiff’s case no testimony had been given which tended to show, specifically, what had caused the train to move before the plaintiff had alighted. The defendant’s counsel there moved to dismiss the complaint on the ground that there was no testimony to show that the moving of the train was due to any negligent act of the defendant’s servants. It will not be necessary to pass upon this proposition for the reason, that before the case went to the jury there was testimony, from which the jury were at liberty to infer the negligence of the defendant.

The defendant examined a hrakeman or guard named Borst, whose place was between cars, nearer the engine than the platform from which the plaintiff was stepping. He proved that he gave the signal which caused the train to move. He also testified that it was his duty not to signal until he had received a signal from the brakeman at the place where the accident happened. The name of the latter was McTaggart. There was no doubt that McTaggart had not given any signal to Borst. In the usual course of things, the signal from McTaggart would be his pulling upon a rope, passing through the car, near its top, and which Borst would be holding. Borst testified that he did not receive a signal, through the rope of the same kind that McTaggart would give in the usual course of things. The plaintiff, however, in rebuttal produced witnesses who testfied that Borst had said, in their presence, that he had not received a signal and he did not know how it was that he came to signal. The jury could, therefore, competently' find, if there were no other testimony on the point, that the train had been started by Borst, as he admitted, but that his statement as to his receiving the signal was not to. be credited. The case would then be, of the company being responsible for the train moving without explanation that would show that due care had been used. The jury might infer from this that the defendants were negligent.

The defendant, in order to make the necessary explanation, called other witnesses than Borst. The testimony of these witnesses was of a kind that called for examination and construction by the jury. If the jury found that these witnesses did not show that Borst received a signal, then the defendant’s case was without a benefit from their testimony. The jury did not necessarily discredit the witnesses for untruthfulness. They . probably did not. These witnesses did not assume to testify directly to the fact that Borst received a signal. They testified to, some facts, which, in the judgment of the jury, did not amount to proof that Borst had received the signal.

These witnesses were passengers standing at the time of the accident about eight feet from the platform where McTaggart was on duty. They, as the jury might find they intended to testify, were standing in the car, with other passengers about them, when the train stopped at the station in question quite suddenly. This caused, some passengers to lose their balance and fall, as it were, against Schneider, one of the witnesses. To keep himself from pitching back he involuntarily raised his hand and took hold of what he believed to be the straps placed there for standing passengers to use. He himself did not think he had a hold upon the rope that has been spoken of until his companion, the other witness named Knewitz, said to him, do you know that you caught hold of the bell rope. Then he took his hand from the rope and then the train started ahead. Undoubtedly the witnesses honestly believed that Schneider, in taking hold of the rope, gave a signal which started the train. But a scrutiny of their testimony shows some things inconsistent with their belief, and the jury might have believed that the facts they swore to had existed and yet not have been convinced that Schneider communicated a signal to Borst.

I therefore think that it did not appear from the whole •case that there was no proof of negligence.

The judge charged the jury, “if you find that the train was started by the witness Schneider in the manner that he says he started it, that then the defendant was not negligent and the plaintiff cannot recover. I charge you if, on the other hand, you find that the train was not started by the witness Schneider in the manner that he .says he started it, that is, if you find that he did not give "the signal to the brakeman Borst which caused Borst to give the signal to the other brakeman, that then the defendant was negligent and the plaintiff is entitled to recover.”

In substance, this gave to the defendant the benefit of a ruling in its favor of all questions of law that could arise. The jury were told that if the facts are as the defendant, claims, then the verdict should be in its favor. It was unnecessary for the judge to charge, as requested, that there was no proof of any defect in the system of communicating signals, or that the method of fixing the bell rope was not the best method of fixing it, or to charge other requests of the same kind. If the jury observed, as it is presumed they did, the charge of the judge, they could not have found against the defendant on any of the matters referred to in the requests.

It is argued that there was error in the judge charging-that there was a conflict of evidence on the point as to how the train started, and in refusing to charge, as requested,

. that there was no conflict of evidence as to how the train, started, and in refusing to charge that the jury were bound, to believe the uncontradicted evidence of the witnesses Schneider and Knewitz as to the manner in which the accident occurred.

The witnesses named did not give testimony as to facts, apart from their opinions, that were intermixed in their statements with facts that conclusively showed that a signal was given to Borst. But between the testimony of Borst as to his receiving a signal and an inference from the testimony of the other witnesses that Schneider had not sent a signal to Borst, there was an opposition that was not improperly termed by the judge a conflict of evidence.

The judge was not in error in his action in the respects now noticed.

The judgment should be affirmed, with costs.

Freedman and O’G-orman, JJ., concur. '


text:
    Mary Cluff, Resp’t, v. John Thompson, impl’d, App’lt.

      (New York Superior Court, General Term,

      Filed May 2, 1887.)

    Practice—Bill of particulars—When ordered.
    The defendant relied on the claim that his status had been changed, and" that he had ceased to act as executor, and had assumed the office of trustee, and had acted as such for thirteen years, with the consent of the plaintiff. Held, the plaintiff was entitled to a bill of particulars of the acts of herself, or any one else, which caused or contributed to the results, asserted by defendant.
    Appeal from an order made at special term requiring defendant Thompson to furnish a bill of particulars of the facts, by reason of which Edward E. Tower, executor of Burgess Cluff, ceased to act as executor, and entered on his duties as trustee in respect to the property referred to in the complaint.
    This is an appeal from a decision of Mr. Justice Freedman requiring defendant, Thompson, to give a bill of particulars.
    The action was brought upon an executor’s bond, upon which bond defendants were the sureties, and whose condition was the executor’s obedience to the surrogate’s orders. It was brought to recover an amount with which the principal, one Tower, had been charged by a decree of the surrogate’s court, entered September 30, 1886, he being charged therewith partly on the ground of his disobedience to a decree of the surrogate made in 1873, and partly as costs of the proceedings taken to ascertain such disobedience. The principal ground of defense was a claim that Tower had theretofore been discharged as executor, and that his relation to the fund was that of trustee, although .the surrogate in terms and advisedly charges him “as executor.”
    The original answer set forth as affirmative defense a claim that Tower had been discharged as executor (and defendant thus discharged as surety) by the terms of the will of the deceased and of the decree of 1873 above mentioned. The amended answer, while retaining this defense, added-also the following passage not in the original: “And thereupon the said Tower did retain the said sum in his hands as such trustee under and by virtue of the provisions of said will, and entered upon his duties as trustee in respect to such property and moneys, and ceased to act as executor in respect thereto, and by and with the assent and concurrence of said plaintiff acted as such trustee for a period of many years, to wit, thirteen years, and that any loss that accrued to said estate was caused by the loches and neglect of said plaintiff in not calling said Tower to account as such trustee.”
    Plaintiff moved in the alternative for a bill of particulars of a portion of this passage, or to strike it all out as irrelevant. The former relief was granted, and the defendant ordered to state the facts upon which the pleader’s conclusion that Tower had ceased to act as executor is based, as also the acts by which plaintiff is claimed to have assented to the change of status.

      Edward B. Whitney and Robert Owen, for resp’t; Isaac Fromure, for app’lt.
   O’Gorman, J.

The granting of this order was in the judicial discretion of the court, and we see no reason to think that that discretion was not rightly exercised.

The defendant relied on the claim that his status had been changed and that he had ceased to act as executor and had assumed the office of trustee and had acted as such for thirteen years with the consent of the plaintiff.

It is not right that the plaintiff should be left in the dark as to a fact so important to her rights, and if there were acts of the plaintiff or of any one else which, caused or contributed to such a result as defendant asserts, it is right-that she should be apprised of them before going to trial. The order appealed from is affimed, with ten dollars costs. Sedgwick, 0. J., concurs.


author: Andrews, J.

text:
    John Loughlin, Res’pt, v. State of New York, App’lt.

      (Court of Appeals,

      Filed March 22, 1887.)

    1. Master and servant—Negligence—Co-servant.
    The plaintiff was set at work by the captain of a State boat, digging clay from under a bank, after the captain had loosened the overhanging earth, so that it fell upon and injured plaintiff. Held, that the State was not liable, that it was a risk incident to the employment, which the claimant assumed, and the injury not being one for which the master, as an individual, would be liable, it is not therefore one for which the State is liable. .
    2. Same.
    The liability of a master for the negligent act of one servant, causing injury to a co-servant, does not rest upon the doctrine of respondeat superior, but solely upon the ground that in the particular case the co-servant whose act or neglect caused the injury was, by the appointment of the master, charged with the performance of duties which the master was bound to perform for the protection of his servants, a failure to perform which, or a negligent performance of which by a servant delegated to perform them is regarded in law the master’s failure or negligence, and not merely the failure or negligence of the co-servant.
    3. Same—Servant of higher grade.
    The feet that the person whose negligence caused the injury was a servant of higher grade, than the servant injured, or that the latter was subject to the direction or control of the former, and was engaged at the time in executing the orders of the former, does not take the case out of the rule.
    Appeal by defendant from an award of $1,200, made September 10, 1885, by the State Board of Claims to plaintiff, for an injury received while in defendant’s employ.
    D. O’Brien, att’y-gen’l, for app’lt; A. D. Wait, for resp’t.
   Andrews, J.

We think the award in this case is in conflict with the decisions of this court defining the responsibility of employers for injuries sustained, by servants while engaged in performing the service for which they were employed, resulting from the, negligence of co-servants. The master is sometimes responsible for the negligent act of one servant causing injury to a co-servant; but this liability, when it exists, does not rest upon the doctrine of respondeat superior, but solely upon the ground that in the particular case the co-servant whose act or neglect caused the injury was, by the appointment of the master, charged with the performance of duties which the master was bound to perform for the protection of his servants, a failure to perform which, or a negligent performance of which, by a servant delegated to perform them, is regarded in law as the master’s failure or negligence, and not merely the failure or negligence of the co-servant.

The liability of the master, when the negligence was not his personal act or omission, but the immediate act or omission of a servant, turns, as was said in Crispin v. Babbitt (81 N. Y., 521), upon the character of the act, and this was hut the enunciation of' the established doctrine in this state upon the subject. If the co-servant whose act caused the injury was at the time representing the master in doing the master’s duty, the master is liable. If, on the other hand, he was simply performing the work of a servant in his character as a servant or employee merely, the master is not liable. The injury in the case last supposed would, as between the master and the servant sustaining the injury, be attributable solely to the immediate author, and not to the master. In harmony with the general principle that the character of the act is the decisive test, it has been repeatedly decided in this court that the fact that the person whose negligence caused the injury was a servant of a higher grade than the servant injured, or that the latter was subject to the direction or control of the former, and was engaged at the time in executing the orders of the former, does not take the case out of the operation of the general rule, nor make the master liable. Hoffnagle v. N. Y. C. R. R. Co., 55 N. Y., 608; McCosker v. L. I. R. R. Co., 84 id., 77; Allen, J., in Wright v. N. Y. C. R. R. Co., 25 id., 565; Folger, J., in Laning v. Same, 49 id., 528.

These decisions are decisive against the claim of liability on the part of the state for the injury sustained by the claimant. It is found that it resulted from the negligence of Wells, the captain of the state boat, who at the time was engaged, with several hands employed on the boat (including the claimant), in digging clay from a bank and loading it on the boat. The negligence consisted in setting the claimant to work under the bank after Wells had loosened the overhanging earth, so that it fell upon and injured the plaintiff. The case is within the decisions above cited. Wells, although captain of the boat, with power to direct those under him, was nevertheless a- co-servant within the rule. The manner of proceeding with the work was committed to Wells. It involved the exercise of such discretion and judgment only as is committed to a foreman. It is not claimed that Wells was incompetent for his position, and no question as to the suitableness of appliances furnished by the state, arises. It is the ordinary case of mismanagement by a co-employee of superior grade as to the manner of prosecuting an ordinary work in which he, and other employees acting under him, were at. the time engaged. This was a risk incident to the employment which the claimant assumed, and the injury not being one for which the master, if an individual, would be liable, it is not, therefore, one for which the state is hable under chapter 321 of the Laws of 1870.

The case of Chicago, M. and St. P. R. R. Co. v. RRoss (112 U. S., 377, 5 Sup. Ct. Rep., 184), cited in the opinion below, was decided by a bare majority of the court, and is in conflict with the course of decision in this state and elsewhere. Slater v. Jewett, 85 N. Y., 61; Wilson v. Merry, L. R., 1 H. L., 326; Farwell v. Boston and W. R. R. Co., 4 Metc., 49.

The award should be reversed and the case remitted to the board of claims for a rehearing.

All concur.


author: Rapallo, J.

text:
    The People, etc., Resp’ts, v. Eucebia Fitzgerald, App’lt.

      Court of Appeals,

      Filed March 22, 1887.)

    1. Criminal, law—Body stealing—Penal Code, § 311.
    Section 311 of the Penal Code, forbidding the removal of the dead body of a human being, or any part thereof, from a grave, vault, etc., without authority of law, with intent to steal the same, or for the purpose of procuring a reward for the return of the same, or from malice or wantonness,, was not intended to apply to exhumations made by legally constituted public authorities, for the purpose of ascertaining whether crime has been committed in producing the death of the person whose body is exhumed.
    2. Same—Post mortem—Impaneling jury.
    It is debatable whether a post mortem should take place before the coroner has impaneled a jury. But it should not be in the presence of the jury, and they are to be instructed by the testimony of the physicians who are designated by the coroner to make it.
    3. Same.
    Defendant, by affidavits, made a strong case, which led the coroner to examine the body. It was claimed that her desire was not so much for the punishment of crime as to obtain pecuniary advantage for herself by making defamatory charges. Held, that if she committed a wrong, it was not the crime of body stealing.
    Appeal from judgment of the supreme court, general term, fourth department.

      Jacob Schwartz, for app’lt; John B. Stanchfield, for resp’ts.

       Reversing 6 N. Y. State Rep., 599.

   Rapallo, J.

The facts of this extraordinary case are fully stated in the dissenting opinion of Hardin, J., at general term. We should content ourselves with concurring in that opinion were it not that it simply orders a new trial for errors in the charge and for refusals to charge while we think that it should have gone further, and have held that the facts of the case did not establish a crime punishable under the statute against body stealing, (Pen. Code, § 311,) under which the prisoner was indicted and convicted, and which is in the following words: “Sec. 311. A person whore-moves the dead body of a human being, or any part thereof, from a grave, vault, or other place where the same ' has been buried, or from a place where the same has been deposited while awaiting burial, without authority of law, with intent to steal the same, or for the purpose of dissection, or for the purpose of procuring a reward for the return of the same, or from malice or wantonness, is punishable by imprisonment for not more than five years, or by a fine not exceeding $1,000, or both.” This statute describes every kind of ‘‘ body stealing ” known to the law. The addition inserted in the Penal Code, “ or for the purpose of obtaining a reward for the same,” was the only substantial change made since the Revised Statutes in the definition of this heinous crime.

The intent of the statute is manifest. It certainly was .not intended to apply to exhumations made by legally constituted public authorities, for the purpose of ascertaining whether crime has been committed in producing the death of the person whese body is exhumed. When the exhumation is made, not secretly, but publicly, on open application to the officer of justice charged with the duty of inquiring into the cause of death of any person whose body is brought within his jurisdiction, it is a total misapplication of the statute against body stealing to use it for the purpose of imposing its punishment on all persons concerned in the exhumation, in case any proceedings of the officer under whose direction under whose direction it was made should be found to be irregular.

The irregularity alleged in this case in the conduct of the coroner is that he did not impanel a jury before he ordered the post mortem examination to be made by the physicians whom he summoned for the purpose. A sufficient number of persons to form a jury was assembled by direction of the coroner, but the jury was not sworn and impaneled. I refer to the opinion of Judge Hardix as correctly stating the facts, which we have verified by an examination of the testimony. The point of law is debatable whether a post mortem should take place before the coroner has impaneled a jury. But it is settled that the post mortem should not be in the presence of the jury, and that they are to be instructed by the testimony of the physicians who are designated by the coroner to make it. The dissection by order of the coroner is expressly authorized. Pen. Code, § 308; Crisfield v. Perine, 15 Hun, 202; affirmed, 81 N. Y., 622. If, as in England at one time, the findings of the coroner’s jury were to stand as an indictment by a grand jury, some point might be made on behalf of the accused as to the validity of the inquest in such a case as this. But to resort to those questions for the purpose of supporting an indictment for body stealing under the circumstances of this case, is quite unreasonable. In the present case the defendant communicated to the coroner in the form of affidavits, whether legally authenticated or not is immaterial, information which should have induced any magistrate not neglectful of his duty to believe that he ought to investigate the matter presented to him. Those affidavits made a strong case to lead the coroner to believe that a murder had been committed, and that an examination of the body, which was within his jurisdiction, would disclose the fact. The defendant sought an examination of the body. She asked the coroner to do his duty, and to examine the body. Whatever motives may have influenced her, no one can suppose that, however unfounded her belief might have been, there was not sufficient in the papers she presented to the coroner to justify his action, and there is no pretense that the affidavit of Dr. Worter, which she produóed, had been in any manner influenced by her. Her silence during several years after the death of G-eneral Irvine is the main argument against the bona fides of her charge, and it is said that her desire was not so much for the punishment of crime as to obtain some pecuniary advantage for herself by making defamatory charges.

However this may be, if she committed a wrong, it was not the crime of body stealing, and on this ground the conviction, and the judgment of the general term affirming it, should be reversed, and the prisoner discharged.

All concur.