text:
    Frances E. Stuart, Resp’t, v. Ambrose Blatchley et al., Def’ts. Nellie V. Watson et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed, May 18, 1894.)

    Pleadings—Answer,—Demurrer.
    A defendant cannot demur to an answer of his co-defendant.
    Appeal from an interlocutory judgment overruling a demurrer to certain portions of an answer of a co-defendant.
    Babcock, Sperry & Van Cleve, for app’lts; A. D. Wales, for resp’t.
   Merwin, J.

This action is brought for the partition of two parcels of real estate. In the complaint it is alleged that the plaintiff, as the devisee of Ruth Ann Blatchley Marvin, is the owner of an undivided one-third interest in the first parcel and an undivided two-ninths interest in the second parcel. It is also alleged that Hortensius Blatchley, at the time of his death, in December, 1887, was the owner of an undivided one-third interest in the first parcel and an undivided five-ninths interest in the second parcel, and that the defendants Silas P. Brown and James E. Kent claim to own such interests by virtue of a deed from G. Ambrose Blatchley, the sole heir at law of said Hortensius ; and that the defendants Nellie L. Watson and Millie L. Watson also claim to be the owners of such interests as devisees under the will of said Hortensius, made on the 16th June, 1885. The defendants Nellie Y. Watson and Millie L. Watson answered, admitting the interest of plaintiff as alleged in the complaint, and alleging that they, as devisees under the will -of Hortensias Blatchley, were the owners of the interests which Hortensias held at the time of his death; that such will was dated on or about 16th June 1885, and was duly made and executed by said Hortensias, and was in existence at the time of his death, and had never been revoked, but that, after his death, and before it was proved or recorded, it was lost or destroyed, without their knowledge or consent, and could not be found by them. A copy was annexed to the answer. They denied that the defendants Brown and Kent had any interest in the premises. Judgment was demanded that it be adjudged that the defendants Brown and Kent had no interest in the real estate of which Hor-° tentius Blatchley died seized, but that the "defendants Kellie V. Watson and Millie L. Watson were the owners of the same. The defendants Brown and Kent also answered, among other things denying the interest of plaintiff in the premises, denying that the defendants Watson had any interest therein, and alleging that Hortensias Blatchley died intestate, and that-they, as grantees of his only heir at law, were the owners of a two-thirds interest in , the first parcel and a seven-ninths interest in the second parcel. In the ninth subdivision of this answer, for further answer to the complaint and the allegations thereof relating to the alleged interest of the Watsons, and as a bar against said Watsons it was alleged that on or about the 20th of June, 1889, the said Kellie Y. and Millie L. Watson, by their guardian ad litem, commenced an action in the supreme court to obtain a judgment decreeing that the will of Hortensius Blatchley, under which the said Watsons ■claim, be established as the last will and testament of said Blatchley, as a will lost or destroyed subsequent to his death; that in that action the said Brown and Kent were made parties defendant, as well as the heir at law and administrator of said Blatchley; that Brown and Kent appeared and answered generally the allegations of the complaint; that the issues were duly referred to a referee to hear and determine, and were duly tried, and the referee found and decided that said will was revoked by said Blatchley in his lifetime, and was not in, existence at his death, and that he died intestate, and that the defendants therein were entitled to judgment dismissing the complaint on its merits; that judgment was accordingly entered on 20th May, 1893, and a copy was attached. The answer of Brown and Kent in the present case demanded judgment, among other things, that the defendants Watson be decreed to have no interest in the premises. This answer was duly served on the Watsons and on the plaintiff, and the answer of the Watsons was duly served on Brown and Kent and on the plaintiff. Thereupon the defendants Watson served a demurrer to the ninth defense or subdivision of the answer of Brown and Kent, the ground of demurrer being stated, “ that the same is insufficient in law upon the face thereof.” This was brought to a hearing at special term, and a decision made “ that the demurrer will not lie by the demurrants Watson to the answer of their co-defendants Brown and Kent; ” that the defendants Brown and Kent “ are entitled to an interlocutory judgment overruling said demurrer, and that the said defendants Watson are permitted to answer or reply under the rules and practice of this court.” From the interlocutory judgment entered thereon the present appeal is taken.

"Was the special term correct in holding that the demurrer would not lie ? The claim of the respondent is that there is no law or authority which permits a demurrer in such a case. There seems to be no provision of the Code that authorizes it. By §§ 488 and 492 a defendant is authorized to demur to the complaint, or to one or more separate causes of action stated therein; and he may demur to the reply (§ 493), or to a separate traverse to or avoidance of a defense or counterclaim contained in the reply. The plaintiff may demur to a counterclaim or a defense consisting of new matter, contained in the answer. § 495. These provisions do not reach the present case. Section 521 treats of the determination of the ultimate rights of two or more defend ants as between themselves, but no provision is made that one defendant may demur to the answer to the other. The answer, which is demurred to in the present case, was served in pursuance of § 1543, which is as follows: “ The title or interest of the plaintiff in the property, as stated in the complaint, may be controverted by the answer. The title or interest of any defendant in the property, as stated in the complaint, may also be controverted by his answer, or the answer of any other defendant; and the title or interest of any defendant, as stated in his answer, may be controverted by the answer of any other defendant. A defendant, thus controverting the title or interest of a co-defendant must comply with § 521 of this act. The issues, joined as prescribed in this section, must be tried and determined in the action.”

The provision of § 521 there referred to required that a defendant who sought a determination between himself and a codefendant must demand it in answer, and must, at least twenty days before the trial, serve a copy of his answer upon the attorney for each of the defendants to be affected by the determination, and personally, or as the court or judge may direct, upon defendants so to be affected who have not appeared in the action. It will be observed that § 1543 states the method in which issues between codefendants in a partition case sháll be joined, and that no demurrer is provided for. The fact that no time was provided for the service of the answer upon the codefendant except that it must be served twenty days before the trial would seem to indicate that no further pleading was deemed necessary or appropriate. The issues so joined were to be tried and determined as issues in the action. Hagerty v. Andrews, 94 N. Y. 198; Shannon v. Pickell, 2 St. Rep. 160. By § 140 of the Code of Procedure all the forms of pleading theretofore existing were abolished, and thereafter the forms of pleading in civil actions in courts of record, and the rules by which the sufficiency of the pleadings should be determined, were those prescribed by that act. Under this, as said by Judge Gridley in De Witt v. Swift, 3 How. Pr. 280, the demurrer could only be adopted in the particular cases prescribed by the act. The substance of the provision of the Code of Procedure was preserved in § 518 of the Code of Civil Procedure, which provides that “ this chapter prescribes the form of pleading in an action, and the rales by which the sufficiency thereof is determined, except where special provision is otherwise made by law.” See 1 Rum. Pr. 244. In Marie v. Garrison, 83 N. Y. 23, it is said by Andrews, J., that “ special demurrers, as known in the former gractice, have no place in "our present system of pleading. The ode authorizes a demurrer for specific causes, and no pleading is demurrable unless it is subject to one or more of the objections specified in the section defining the grounds of demurrer.” We fail to to find any authority for the interposition of the demurrer in the present case, and we are therefore of the opinion that the special term properly held that it would not lie.

It may be that the respondent might have moved to have the demurrer stricken out as irregular, Doughty v. Devlin, 1 E. D. Smith, 629, but no question is here made on that subject, and the appellant is not in a position to raise any. The demurrer was properly overruled, and the judgment should be affirmed.

Interlocutory judgment affirmed, with costs, on the ground that the demurrer would not lie.

All concur.


source: Caselaw Access Project

author: Merwin, J.

license: Public Domain

text:
    Irvin Van Wie et al., Resp’ts, v. Edwin L. Loomis et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed May 18, 1894.)

    Evidence—Memoranda.
    In an action for services rendered, time cards of plaintiffs’ workmen are admissible, where their foreman testifies that it was part of his duty to keep the time of the men; that each day he noted the time of each man on a separate slip of paper ; that on the next morning he transcribed the time from these slips upon the cards and then destroyed the slips ; that the time as entered by him on the slips were correct and was by him correctly transcribed upon the cards; and that he could not tell the time that he or any of the men spent on this particular job, or on any particular day, only from what he saw on the cards.
    Appeal from a judgment in favor of plaintiffs.

      Charles S. Kent, for app’lts; G. W. O'Brien, for resp’ts.
   Merwin, J.

The main issue at the trial was whether the defendants Loomis and Miller participated with Hess in the ordering of the services and materials referred to in the complaint. There was evidence tending to show that they were interested with Hess in getting up the machine, and that it was made by plaintiffs at their request. A careful consideration of the evidence leads us to the conclusion that we cannot properly say that the finding of the referee on this subject is against the weight of the evidence. Nor can we say that the finding of the referee that there was no agreement as to price is not sustained by the evidence.

The appellants claim that the referee erred in the admission in evidence of certain time cards, upon which was entered the time that each workman spent each day upon the machine. Of these cards there were two classes, <^ne of which—zbeing the larger portion— consisted of those made by the foreman, Bowling, and the other of those made by the bookkeeper, Peet, after Bowling left the employ of plaintiffs. Prior to the admission of those made by Bowling, lie testified that they were in his- handwriting; that he was the foreman of plaintiffs during the time covered by the cards, and that it was a part of his duty to keep the time of the workmen as well as his own, and he allotted to each man his work upon this and other jobs; that when he gave a workman a piece of work to do, or commenced a piece of work himself, he noted on a slip of paper, kept for that purpose, the time the work was commenced, and when the work was ended he noted the time on the same slip, keeping a separate slip of paper for each man for each day; that on the following day, before 9 o’clock in the morning, he transcribed the time from these slips onto the cards in question, and then destroyed the slips; that the time as entered by him on the slips was correct, and was by him correctly transcribed upon the cards; that he could not tell the time that he or any of the men spent on this particular job, or any particular day, only from what he sdw on the cards. Upon this state of facts the cards were admissible in evidence, within the ruling laid down in Mayor, etc., v. Second Ave. R. Co., 102 N. Y. 573 ; 2 St. Rep. 526. They were made by the witness in the ordinary course of the business, and the fact' that the entries were, in the first instance made on slips of paper, which were afterwards destroyed, would ,not render the cards inadmissible any more than in case of the first entries being upon a slate. McGoldrick v. Traphagen, 88 N. Y. 334, 338. The cards were delivered by the foreman to the bookkeeper, and the entries then carried—correctly, as the bookkeeper swears—to the day book and ledger, and the proper prices carried out. The day book and ledger were put in evidence as to such entries, and no point seems to be now made as to the admissibility of the books. It is suggested that the witness did not testify that, after looking at the cards, he had no recollection of the facts there stated. The purport of his evidence was, however, .very clearly to that effect, and no specific objection was taken qn that ground. It is also suggested that the witness could not, by reason of occasional absences from the workshop,- speaking of his‘own knowledge as to the exact time the workmen were engaged in all cases. Whatever uncertainty there was on this subject appeared' in the cross-examination of the witness after the admission in ¡¡evidence of the cards. No motion was made to strike out. Failure to raise the question by specific' objection was, in a case somewhat similar, deemed important in the case above cited from 102 N. Y., at page 582. The ruling, when made, was proper, and, no further ruling on the subject being asked, it became a question of fact whether, upon the evidence of the witness, and all the other evidence in the case, the amount of time as charged was sufficiently proved. The conclusion of the referee on this subject should not be disturbed. In the class of cards made by the bookkeeper it was shown that she personally each day saw the workmen, and' obtained from them their time, and correctly entered it on the cards. The workmen also were sworn, and testified that in each instance they gave the time correctly to the bookkeeper, and, in substance, that they had no definite recollection themselves of the amount. . These cards were in the same form as the others, but there were no preliminary slips. We think they were properly admitted in evidence. There is no other question, in the case that need be considered. It follows that the judgment should be affirmed.

Judgment affirmed, with costs.

All concur.


author: Kellogg, J.

text:
    Rose Corley, Pl’ff, v. James McEmeel et al., Def’ts.

      (Supreme Court, Kings County Circuit,

      Filed December, 1893.)

    Evidence—Wills—Effect of refusal to probate.
    Under § 8627 of the Code, a decree that a will of real property was procured by fraud and undue influence is not conclusive on the devisee.
    Action for partition, and also to procure an adjudication declaring null and void a devise under an alleged will.

      Robert Sewell and Edward F. Dwight, for pl’ff; Boardman & Boardman and Charles J. Patterson, for def’ts.
   Kellogg, J.

The instrument purporting to be the last will of Patrick T. Trenor was, on petition of the executors named therein, presented to the surrogate of the city and county of New York in April, 1888. All the parties claiming as legatees or devisees under the will, and all the heirs at law of the deceased Trenor, appeared in that court; and each, represented by able counsel, took part in the contest there over the probate of the will, as a will of real and personal property. The contest was long continued and vigorous, as appears by the papers offered in evidence. The will, among other grounds, was claimed by the contestants — the heirs at law and the attorney general of the state—to have been procured by fraud and undue influence; and it was decided by the surrogate, who made his decree in October, 1889, “ that the execution thereof [the will] by him [Trenor] was procured by -fraud, and while he was under restraint and undue influence, and that the said instrument was null and void, as for the last will and testament of Patrick Trenor.” The decree of the surrogate has not been reversed on appeal, or revoked by the surrogate.

.The plaintiff in this partition suit contends that the decree is conclusive upon the devisees as to all matters determined by the surrogate. The defendant,. Annie Stover, devisee in the will of this property sought to be partitioned, and in possession, claims the right to make proof here of the will, notwithstanding the decree of the surrogate. If this was a new question, it might be regarded as a serious one, and one surrounded with doubts not easily and satisfactorily solved. There is no doubt but the surrogate had jurisdiction of the subject matter and of all the parties, and had power to make just the decree he did make. Under the well understood general law as to the1 effect to be given to decrees or judgments, this decree ought to be conclusive. It is conclusive, as all agree, so far as the will relates to. personal property or the right to administer conferred by the will. But the statutes sometimes, in terms, and, the courts always, by construction, have, from the beginning, kept up a distinction between the real and personal in the same, instrument, and á corresponding distinction as to the effect to be given to a decree of a surrogate touching a testator’s unsoundness of mind, fraud practiced in procuring the will, and all other matters relating to the validity of the instrument. These questions the surrogate may pass upon,—must pass upon. His decision is potent and conclusive as to all the testator’s personal property, be it much or little, but as to the realty the decree determines nothing. The absurd results" of finding by one court a testator to be of sound mind, and so disposing of his money, bonds, and chattels as he directs, and then finding, by another court of competent jurisdiction, the testator to be of unsound mind, and so turning over his houses and lands to the same persons for whom the testator may have already provided with his personal estate, may be criticised as reflecting no great credit upon the authors of our system touching the probate of wills; but the power of correction does not seem to be vested in the courts. The state inherited from the colonial laws the practice existing in the prerogative court—the governor of the colony and his delegate—of forcing wills of personal property to be first probated before they could be offered in court as evidence, and, following the colonial law, made the probate and denial of probate conclusive upon all parties. As early as the act of April, 1786, the legislature also provided, touching wills of real estate: “That where real estate shall be devised by will,” etc., “ the executors or other persons interested may cause the will to be brought before the court of common pleas of the county where the lands lie, and the court shall cause the witnesses to be examined in open court; and if it shall appear that the will was duly executed and the testator of sound mind,” etc., “the court shall direct the will and proof to be recorded. But the court shall not proceed to, examine witnesses,” etc., “ until notice shall be given to the heirs, or if not to be found within the state, fixed up at the last place of abode of such testator at least fifteen days before such examination. * * * The record of wills so proved and re-, corded shall be as good and effectual in all cases as the original wills would be if produced and proved.”

Justice Kent held in Jackson v. Rumsey, 3 Johns. Cas. 558, as to this law : “ That it never intended that the proof so taken should be conclusive upon the heir. * * * Nor does there Seem to be any ground for the suggestion that the statute had an eye to this mode of proof as a substitute for the mode of establishing a will in chancery; for if a question of fraud in obtaining the will or on the sanity of the testator arises in that court, it- is never tried there, but an issue of law is uniformly directed.”

No material change was made in the law, or in the construction given to it by the courts, down to the adoption of the Revised Statutes in 1837.

In Bogardus v. Clarke, 4 Paige, 626 (decided in 1834), the chan•cellor says, “ In this case, however, even if it had appeared from the bill and answer that the parties to the present controversy were all actual parties to the litigation before the surrogate and upon the appeal, the decision of the chancellor, acting as an appellate court of probate, against the competency of the decedent to make a valid will of personal estate, would not have been conclusive evidence in this suit of the invalidity of the devise of the real estate to Mrs. Sawyer, although such devise was contained in the same will which was. then in controversy as a will of personal property. * * * The probate courts having the exclusive jurisdiction and right-to decide as to the validity of a will of personal estate, but having no authority whatever to determine the right as to the real estate claimed under the will, or to decide any question which can have the effect to deprive the heir at law or the devisee of his common-law right of trial by jury, so far as concerns the devise of real estate, without taking up time to inquire more particularly into the reasons for this seeming exception to a general rule, it is sufficient to say that the law appears to be well settled that the sentence of a surrogate, or of a higher court having power to review his decision, in relation to the competency of the testator to make a will of personal property, is not conclusive upon the parties to that litigation in a subsequent suit as to the validity of a devise of real estate contained in the same will.”

That, before the Revised Statutes, it was not necessary to establish, probate, or record a will of real estate, before the will could be offered in evidence in an action at law, is abundantly shown by reference to Jackson v. Blanshan, 3 Johns. 291, 292; Jackson v. Le Grange, 19 Johns. 386; Jackson v. Luquere, 5 Cow, 221; Jackson v. Vickory, 1 Wend. 407; Jackson v. Christman, 4 Wend. 277, 278 ; Bogardus v. Clarke, 4 Paige, 623. The original will might be offered and proved upon trial, though never probated or recorded; and when the will was old, and the party claiming under it was in possession, it $tood upon a footing with ancient deeds, and was received in evidence without proof. The Revised Statutes provided (§ 29): “The probate of any will of personal property taken by a surrogate having jurisdiction, shall be conclusive evidence of the validity of such will until such probate be reversed on appeal or revoked by the surrogate as herein directed, or the will be declared void by a competent tribunal.”

After providing for probate of wills of real estate before a surrogate, § 15 says: “Every will so proved shall have a certificate of such proof endorsed thereon, signed by the surrogate and attested by his seal of office, and may be read in evidence without further proof thereof. The record of such will made as aforesaid and the exemplification of such record by the surrogate in whose custody the same may be shall be received in evidence, and shall be as effectual in all cases as the original will would be if produced and proved, and may in like manner be refuted by contrary proof.”

The law so remained, without material change, until the adoption of the present Code. It is unnecessary to say that the courts have in all cases construed these provisions as to wills of real estate to mean that such a will, so probated, determined nothing, but simply relieved the claimant under the will of the necessity of making proof of the will, when offered in evidence in an action of law. It became, by such probate, presumptively established as the will of the testator. The proof had once been made in the surrogate court, which was to be accepted as a substitute for'the proof required in an action at law, where an unprobated will was. offered in evidence. In other words, the courts give to the probate by the surrogate of a will of realty precisely the same force that is given to* the certificate of acknowledgment by a competent officer which is attached to a deed. While the statute law does not say, in words, what effect shall be given to a decree of a surrogate denying probate for any cause whatever, still the courts have uniformly held that the law was not enacted to protect the interest of,the heir at law alone, and have held that the devisee under the will is not concluded by such a decree; and such denial in fact determines nothing against the devisee, and nothing in favor of the heir at law. In Harris v. Harris, 26 N. Y. 433, 437, Wright, J., says: “Nor can it be claimed that the probate of a will, not lost or destroyed, in a surrogate’s court, or one lost or destroyed in the supreme court, under the provisions of the Revised Statutes, is in either case conclusive as to real estáte. It is conclusive as to personal, but prima facie only as to real; and a failure to have a will probated either in the surrogate’s court or supreme court does not .prevent those claiming under it from setting up and establishing their title, by common law evidence, in an action in any court, either of law or equity, where the title to the real estate thereby devised may be involved.”

An action had been once brought by the devisees, in the supreme court, to establish the will as a lost or destroyed will, and judgment had been rendered in that action, after a contest by the heirs at law, against the will. This judgment, in the case above cited, was held to determine nothing agains.t the devisees.

We next come to the provisions of the present Code. Section 2626, relating to wills of personal property, reads as follows: “A decree admitting to probate a will of personal property, made as prescribed in this article, is conclusive as an adjudication upon all questions determined by the surrogate pursuant to this article,” etc.

Section 2627 reads as follows: “ A decree admitting to probate a will of real property made as prescribed in this article establishes presumptively only all the matters determined by the surrogate pursuant to this article, as against a party who was duly cited or has offered a person claiming from, through or under hifii,” etc.

While the language here is different from that used in the Revised Statutes, the meaning is clearly the same, and expresses just the construction placed by the courts upon the provisions of the Revised Statutes.

In re Gouraud, 95 N. Y. 256, 258, Earl, J., says: “But if was the design of the statute, by a general rule, to give parties a full and ample opportunity to resist the probate of a will disposing of all of the testator’s property. The opportunity for litigation as to the probate of a will of real estate is still greater under § 15, Rev. St. The probate of such a will is never conclusive; and, whenever title to real estate is attempted to be made under it, its validity may be resisted on precisely the' same grounds that were litigated ..when it was admitted to probate, or upon any other grounds. The probate of a will of real estate is not res adjudícala against anybody. * * * All the provisions to which we have referred have been substantially re-enacted in the Code. Sections 2626 and 2627 give substantially the same effect to the probate of wills of real and personal property as was provided in the Revised Statutes.”

That it was the intention of the codifiers to make no change in this respect, if not entirely clear from the new language used by them,' becomes clear by reference to their notes upon revision.

It only remains to determine whether the decree of the surrogate, and papers connected therewith," offered in evidence by the counsel for plaintiff, are admissible to establish prima facie the invalidity of the will, or are admissible for any other purpose. As under the stipulation, the questions touching the validity of the will must be tried-before a jury, with or without precise questions being framed before trial, this question is hardly pertinent here, since it does not bear upon any other issue in the case. I think it should be left to the decision of the court, when that issue shall be tried. The Code provides that a “ decree admitting to probate a will of real property ” is presumptive evidence of all matters determined by the surrogate, but is silent as to the effect of a decree refusing probate. The same language is used, however, relating to wills of personal property; and here, too, the Code is silent as to the effect of a decree refusing probate. It would, I think, in the case of a decree refusing probate of a will of personal property, hardly be contended that this had not the same force given by tne Code to a decree admitting the will to probate. Section 2625 provides, as to both wills of personal and of real property, that, where the surrogate decides “against the sufficiency of the proof or against the validity of the will," he shall make a decree accordingly, and, if required, must state the grounds of his decision. The object of providing for a decree in such cases, and the effect of such a decree, is not clear, unless it is to be regarded as res adjudícala as to wills of personal property, and as to the right to administer the personal estate; and as to wills of real estate, I think, such a decree must at least be regarded as res adjudicata as to the right to have it probated at all. Whether it may be further regarded as prima facie evidence of the invalidity of the will, I do not decide. What may be the rights of Fitzgerald, and how such rights, if any, in equity, he has, should be protected by the final decree, I do not determine, since it-is provided by the stipulation, or in open court, that, in case any question shall be submitted to the jury, further proof might be offered by the plaintiff touching the Fitzgerald claim. The question of the validity or invalidity of the will of Patrick Treno'r must go to a jury. If a jury shall find that the will is, for any cause, invalid, then the real estate in controversy falls to the heirs at law, subject-only to such lien or title of Fitzgerald as may be hereafter determined by the court before which the remaining evidence is taken. If the jury shall find the will valid, and to be the will of Patrick Trenor, then this action fails.


author: Sedgwick, 0. J.

text:
    Thomas Brady et al., Resp’ts, v. Joseph B. Smith, as Administrator, etc., et al., App’lts.

      (New York Superior Court, General Term,

      Filed May 7, 1894.)

    1. Contract—Validity.
    An agreement “to give all moneys and personal property I maybe possessed of in the United States ” to persons named, is not void for uncertainty.
    2. Same—Consideration.
    A contract to board, nurse,' clothe, furnish medical attendance and bury the other contracting party furnishes a valuable consideration for the foregoing agreement.
    3. Evidence—Expert.
    It is not competent for a witness, not an expert, to express an opinion as to the general soundness of a person’s mind.
    Appeal from a judgment in favor of plaintiffs.

      Herbert Kettell and J. Edward Swanstrom, for app’lts; Robert J, Mahon, for resp’ts.
   Sedgwick, 0. J.

— Bernard Smith made on August 12, 1892, the following instrument: “ I, Bernard Smith, agree to give all moneys and personal property I may be possessed of in the United States to Thomas Brady and his wife, Mary E. Brady, after my death. It is, anyway, more than $4,500. ”

Thomas Brady and his wife, who are the plaintiffs here, signed the following: “ Contract between Bernard Smith and Thomas Brady and Mary E. Brady, his wife, all of the same residence, No. 227 East 47th street, New York City; I, Thomas Brady, agree to board, nurse, clothe, and furnish medical attendance to Bernard Smith while he lives, and bury him in Calvary Cemetery with his brother Patrick Smith, deceased.”

Bernard Smith died about a year afterwards. His administrator and ten nephews and nieces are made defendants. The complaint asked for a specific performance of the agreement. His administrator did not appear.

As ground for dismissing the complaint, the counsel for the defendants who appeared asked the court to find that the agreement was unconscionable, and that the same was procured from the deceased by the plaintiffs by means of fraud and undue influence. The court has found, upon a state of evidence that did not call upon him to find otherwise, that the plaintiffs were not guilty of fraud, and did not exercise undue influence actually or by construction. It was also found that Bernard Smith was in his right mind when he signed the paper and accepted the paper signed by the plaintiffs. There did not appear any circumstance which might make the contract unconscionable or unreasonable. Indeed; the ten nephews and nieces had no claim upon the deceased or upon the property in question. If he chose to make the gift, he exercised a right which cannot be gainsaid. There is no reason to believe that the defendants were in particular dear to him, or that he cared to favor them. He, like other uncles, might think that he preferred to give the whole to one, rather than to scatter it among many. At any rate, if the contract was valid, and any criticism of his conduct or condition does not reach the point of showing that he was not in law bound by it, it must be enforced. Ás the judge found, the deceased, at the time of signing the agreement, was not mentally incapable of comprehending the nature of said contract There was a valuable consideration, and not merely a nominal one. It was adequate if he was satisfied with it, for the contract is to be tested by the rules of law that pertain to contracts.

I am of the opinion that the agreement was not void for uncertainty. It is a common expression of contracts and wills that “all shall be, or is, given.” This expression has at its foundation an uncertainty as to whether an enumeration or description, if made, would fulfill the actual intention of the grantor or testator, but the matter is made certain by using the word “all.” Uncertainty is not created by the donor’s reserving the right to dispose of any of his estate before his death, for a result follows which has the characteristic of certainty, as much as if there had been no right to convey. A man will have the power to convey his property, although he may have executed a will which leaves to a specific person all his personal property, and the will will not be void for uncertainty. In Jackson v. Delancey, 4 Cow. 427 Judge Co wen said:

“The premises in question are not designated by the deed except under the general description of 1 all my estate.’ Such a description has been adjudged insufficient in a sheriff’s deed, but the same consideration does not apply as between individuals.”

The learned judge found that it was the, intention of the parties that Bernard Smith should not part with his property in his life time. This position might be contested, perhaps. It is not necessary to examine it particularly. Whichever is correct, the judgment must be sustained if otherwise without error.

It was objected that plaintiffs had an adequate remedy at law, in an action to recover damages, and the action should have been so brought. The defendants did not take, in their answer, any position of this kind, or allude to it, but did demand judgment that the agreement should be declared null and void, and that the same be ordered up to be canceled.

A witness placed upon the stand to show the condition of Bernard Smith's mind was asked if Bernard Smith had told him that he had had a sunstroke. This would have brought out hearsay testimony, and was properly disallowed. The plaintiffs were not bound by the declaration sought The same witness was also asked if, from conversations with Bernard Smith, and from his' acts, “ would you say he was in his right mind.” The conversation or the acts had not been given in evidence, and the witness' attention was not confined to the apparent rationality or irrationality of Smith at the timé. He was asked to make a general infer-' ence, from conversation arid acts, as to Smith being in his right mind. It was not competent for the witness, not an expert, to express an opinion as to the general soundness of the mind of Smith. Hewlett v. Wood, 55 N. Y., 636. • '

Judgment affirmed, with costs.


author: Freedman, J.

text:
    John D. Heins, Resp’t, v. Manhattan Railway Company et al., App’lts.

      (New York Superior Court, General Term,

      Filed May 7, 1894.)

    Appeal—Striking cause prom calendar.
    Where the appellant takes no step to he relieved from an order declaring his case abandoned, or to have the appeal heard on the judgment roll alone, respondent’s motion to strike the cause from the calender will be granted. ■
    Motion to strike cause from the calendar, and for judgment pursuant to rule 4 of the special rules of the superior court.

      William Allan, for pl’ff; Root. & Clarice, for def’ts.
   Freedman, J.

It was the duty of the appellants to procure the order for the filing of the case after its settlement, on Jurie 12th, 1893, and to attend to the filing. No sufficient reason has been given why the appellants neglected their duty in this respect. The case having been declared abandoned by an order duly made, entered, and served, and the appellants having taken no steps to be relieved from this order, nor any step to bring the appeal before the general term upon the judgment roll alone, the respondent’s motion should be granted, with costs.

All concur.


author: Freeman, J.

text:
    William J. Wilson, Resp’t, v. Broadway and Seventh Avenue Railroad Company, App’lt.

      (New York Superior Court, General Term,

      Filed May 7, 1894.)

    1. Evidence—Negligence.
    In an action for injuries caused by a collision of street cars at a crossing, plaintiff may testify as to the speed of defendant’s car when near the crossing.
    2. Damages—When not excessive.
    A verdict for $3,250 for personal injuries was held, under the circumstances of this case, not to be excessive.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Root & Clark, for app’lt; William Allan, for resp’t.
   Freeman, J.

The action was brought to recover damages for personal injuries sustained by the plaintiff while a passenger on one of defendant’s cars, which collided with another car by reason of defendant’s negligence. All tlie questions presented by the evidence given by both parties were fully and fairly submitted to the jury, who rendered a verdict in favor of the plaintiff for $3,250. The briefs of tlie learned counsel for the appellant presents but two points for tlie consideration of the general term, and all others may, therefore, be deemed to have been waived.

The first point raised is that the trial judge erred in permitting the plaintiff, on his direct examination, to answer a question as to the rate of speed of the defendant’s car within two blocks of Bleecker street. The car of the defendant was going south through Wooster street, and ran into a car going east through Bleecker street - while the latter was crossing Wooster street. The front platform of defendant’s car struck the center of the Bleecker street car. Under these circumstances, it was relevant and material to show the rate of speed at which defendant’s car was going at or near the place of collision. Plaintiff’s answer, “ They were going at quite a rapid pace,” clearly did not prejudice defendant’s case, as showing, or tending to show, another negligent act some distance away from the point of the collision, for there is abundant other testimony in the, case, which came in without objection, to the effect that defendant’s driver, as he approached Bleecker street, was whipping the horses, and that they were galloping,- and going at the rate of about ten miles an hour, and that they had been made to go quite fast for some distance before reaching Bleecker street. The point is therefore clearly untenable.

The second point is that the verdict is excessive. The plaintiff was twenty-two years old when he was injured. He was strong and powerful. In the collision his wrist was cut and his right arm severely bruised, and as a consequence bis hand swelled and puffed out, and his fingers contracted. The contraction of the 'fingers is due to an injury to the nerves supplying those fingers, and the impairment of the said nerves is permanent, so that he will never have the same muscular power in grasping with his hand that he had before. He has suffered intense pain, and still suffers pain after the lapse of several years, and his doctor’s bill was $175. In view of the foregoing and other minor facts which hear upon this Branch of the case, it cannot be held that the verdict is excessive. • “

The judgment and order should be affirmed, with costs.


author: Hatch, J.

text:
    American Preservers Company, Pl’ff, v. Columbia Investment Company, Def’t.

      (Buffalo Superior Court, Trial Term,

      Filed March, 1894.)

    1. Bills and notes — Misappropriation.
    A party, vyho receives from an agent a check in payment of property sold to him, knowing that it is not the agent’s but the principal’s check, is liable to the principal for its proceeds.
    S. Same.
    The rule is not changed by the fact that the agent obtains a loan from such party by pledging the property purchased and deposits the loan to the credit of the principal to whom he was indebted.
    Motion for a new trial.

      Simon Fleischman, for pl’ff; N. W. Norton, for def’t.
   Hatch, J.

The transaction between Tomes and defendant was an individual transaction, entirely independent of any business carried on by plaintiff, or of any matter which Tomes, as general manager, was authorized to do for it. Of this fact defendant was advised, or could have been so advised, if it had made inquiry. Making no inquiry, it stood chargeable with all the knowledge it would have obtained had it done so. When it took the check it knew that it was not Tomes’ check, but the check of plaintiff, for it so read. Consequently, it took it at its peril, and became liable-to plaintiff therefor for its proceeds. Gerard v. Mc Cormick, 130 N. Y. 261; 41 St. Rep. 284. Defendant does not contend against this result; but it claims that as Tomes, by means of its property, raised the money to meet the check, and placed it in plaintiff’s account, it has suffered nothing by Tomes’ hct, save a small sum represented by the discount, which defendant offers to pay.; and that, as the transaction can be definitely and accurately traced, and the equities of the parties perfectly adjusted, no recovery should be had beyond the difference in the deposit and the amount of the check. As before observed, the transaction with'Tomes was with him as an individual. Defendant sold him the stock, and with full knowledge took plaintiff’s check in payment therefor. As to the plaintiff or any other person, Tomes could sell and corivey good title to the stock, which defendant could not question. When Tomes took the stock to the bank, and gave his note, that was his individual transaction with the bank, and was so understood by both parties to it. Tomes might do with that money many things. He could purchase other property with it, he could pay the check of plaintiff with it, or he could pay any pre existing debt, and defendant could not complain, nor could it follow that money, although able to trace the transaction. At this time Tomes was largely indebted to plaintiff, and it was coinper tent for him to pay that indebtedness. Had he sent the money by express or otherwise to plaintiff’s head office, there can be no doubt but that plaintiff would have obtained good title thereto, and could have applied it upon his existing indebtedness. If paid to them at any other place or manner, a like result would be reached. When placed in plaintiff’s account, it became impressed with a trust in plaintiff’s favor, and was payment to it as fully and completely as though the money had been handed to plaintiff’s president., The title then passed to plaintiff, and it could not be divested of it except through some one of its authorized channels. Neither the bank nor any other person could take it, although, before drawn out, all the facts were -known. It was applied in payment of the check, but this check represented the individual debt of- Tomes, and consequently it was a misappropriation of plaintiff’s moneys to apply them thereon. It is believed that the authorities support the views here expressed. In Justh v. Nat. Bank, 56 N. Y. 484, it was said: “In the absence of trust or agency, I take the rule to be that it is only to the extent of the interest remaining in the party committing the fraud that money' can be followed as against an innocent party having a lawful title founded upon consideration; and that, if it has been paid in the ordinary course of business, either upon a new consideration or for an existing debt, the right of the party to follow the money is gone.”

In the present case there was no trust or agency. As we have seen, Tomes did not assume to represent plaintiff in any one of the transactions or in any matter of detail connected therewith, and each person who dealt with him had knowledge of such fact. When the money went into plaintiff’s account, it became instantly the plaintiff’s money. Tomes had no interest therein, and it was only his interest that defendant could reach. Stephens v. Board, 79 N. Y. 183; Van Allen v. Am. Nat. Bank, 52 N. Y. 1; Gerard v. McCormick, 29 St. Rep. 709; 8 N. Y. Supp. 860. The rule here laid down in no wise conflicts with the law, long established, that a defrauded vendor of goods may pursue and retake the goods as against every person except a bona fide purchaser parting with present value. Such are the cases relied on by defendant. They are without application, for the reason that the property sold in the present case is not the subject of pursuit. That was pledged by Tomes, and disposed of by the bank,-and he received the money on his note, and paid a debt he owed, and the creditor received it with no notice of its source or of the fraud practiced by Tomes. The distinction is very clearly pointed out in Stephens v. Board, 79 N. Y. 183.

Nor do I think defendant has any equitable defense. When it parted with its property it had full notice of the character of the transaction. It chose to receive plaintiff’s check, and thereby invested Tomes with control and dominion over the property. It was not influenced in any thing it did by what Tomes subsequently did with the property, for of that disposition it had no notice until some time subsequent to the payment' of the check. There was, therefore, nothing in the whole transaction which influenced its action.' It was simply a sale of stock, for which it took plaintiff’s check for Tomes’ debt, and it elected to do so with complete knowledge of its character. The case, therefore, lacks any equitable features available to defendant. The result is that the money which paid this check was plaintiff’s money, for which it is entitled to judgment.

The motion for a new trial is denied, and judgment is ordered for plaintiff on the verdict, with costs.


author: Per Curiam.

text:
    Ada Bennett, Resp’t, v. William H. Wright, App’lt.

      (Supreme Court, General Term, First Department,

      Filed April 13, 1894.)

    Injunction—Mortgages.
    Where, in an action to have mortgages satisfied of record, the complaint alleges that they were procured by fraud, the mortgagee will be enjoined, pending the action, from enforcing the power of sale.

      Appeal from an order enjoining defendant from interfering or intermeddling with certain chattels mortgaged by the plaintiff to the defendant.
    The complainant alleges that .plaintiff bought- $3,200 worth of furniture, fixtures, and chattels of Elliott & Congle, and paid at various times by check, cash, and return of furniture a sum equal to this amount; that five months after the purchase of furniture, Elliott ¿i Congle, by their agents, secured through fraud, trick and device a mortgage on these chattels to defendant of $3,179.51, and at several other times subsequent to this mortgage secured three other mortgages in same manner to defendant amounting, with the first one, to $5,560.21.

      Abram Kling, for app’lt; Otto Irving Wise, for resp’t.
   Per Curiam.

The mortgagee having the right, undpr the power of" sale, to foreclose his mortgages without action, their validity can be contested only by an action to have it adjudged that they were null and void, or that they have been paid, as the case may be. The mortgagee can ask to have the mortgages foreclosed in this action, and on such an issue might have an injunction restraining the plaintiff from removing the property from the state, or from dispersing it, to the injury of the mortgagee’s interests. We think, under the allegations, that the mortgagee should be restrained from enforcing the power of sale pending this action, upon condition that the plaintiff should be required to give an undertaking, in lieu of those heretofore given, in the sum of $2,000.

No costs to either party. Order modified accordingly, without costs.


author: Yan Brunt, P. J.

text:
    Mary P. Brater, App’lt, v. Annie I. Hopper et al., Def'ts. Addison F. Andrews, App’lt.

      (Supreme Court, General Term, First Department,

      Filed April 13, 1894.)

    1. Appeal—Parties.
    The heirs of a decedent may appeal from a judgment recovered on a claim against him.
    2. Same—Exceptions.
    Exceptions to findings of facts and conclusions of law, 'filed on the entry of an interlocutory judgment, present the question as to plaintiff's right to maintain the action.
    S. Executors—Claims against decedent’s estates.
    An action on a claim against a decedent cannot be maintained against the trustee of part of the estate, without making the personal representatives parties.
    Appeal from an interlocutory and final judgment in favor of plaintiff.

      II. F. Andrews, for app’lt; Anderson Price, for resp’t.
   Yan Brunt, P. J.

“Impressed with the abstract justice of the plaintiff’s demand, and with a conviction, in which we all share, that somebody is and should be responsible to her for the restoration of her property,” this action seems to have been commenced without any definite idea of how the end sought for was to be obtained, or as to who was to be made to respond. Upon examination of the findings as contained in the record, it would seem that no real cause of action is disclosed. It appears that the plaintiff was the only child of one William T. Devoe, who died in 1872, leaving a will, dated the 7th of April, 1872, and which was duly proved in the surrogate’s court, and admitted to probate, and letters testamentary issued thereon to one George F. Hopper, who died in August, 1891. At the time of the death of her father, the plaintiff was an infant nine years of age, and one Harriet J. Hopper, the wife of George F. Hopper, was appointed her guardian on or about the 11th of September, 1872, and gave bonds and entered upon her duty as such guardian, and received property belonging to the infant from the estate of her father, amounting to about $5,000. It would seem that, at some time subsequent to this period, the plaintiff lived with and was supported by the guardian. In 1886 said Harriet J. Hopper died, leaving a will, which was duly proved in the surrogate’s court on the 15th of February, 1886, and letters testamentary thereon ■issued to the daughter of said Harriet J. Hopper,—Lillie P. Eeed. By the will of said Harriet J." Hopper, after making some specific bequests, and a devise to her husband during life of a house and lot, she directed that all the rest,.residue, and remainder of her estate, including the said house and lot, after the death of her husband should be divided into six equal parts, three of which she bequeathed to her said daughter, Lillie P. Eeed, absolutely, and the remaining parts she gave, devised, and bequeathed to said Lillie P. Eeed in trust to invest and receive the income thereof, and to pay and apply said income of said three shares to the grandchildren of the testatrix, two of whom are infants, whose guardian is appellant herein. There was no proof or evidence that Harriet J. Hopper had ever accounted for the money which she received as guardian of the plaintiff. It further appeared that Lillie P. Eeed had died before the commencement of this action, and it was admitted that Addison F. Andrews had been duly appointed testamentary trustee in place of Lillie P. Eeed, deceased. This action was brought setting up these facts, making as parties the descendants of Harriet J. and George F. Hopper, and the general guardian of such as were infants, the executor of George F. Hopper, said Andrews, the so-calle'd testamentary trustee, appointed as aforesaid, and also the surviving bondsman upon the bond which Harriet J. Hopper gave as guardian of the plaintiff; and j udgment was asked that the children and heirs at law of said George F. and Harriet J. Hopper be compelled to come into court, and account thereof and thereto of all the matters in connection with the estate of said Devoe, deceased, and also of any property which may have come into the hands of their deceased parents, either as executor or as guardian and testamentary trustee. There was also a general prayer for relief.

Upon what theory the said Andrews is called a testamentary trustee throughout the whole of these proceedings we do not understand. He was not appointed by the will'of anybody ;• but, the trust in the will of Mrs. Hopper having devolved upon the supreme court upon the death of the trustee named therein, the court, pursuant to the provisions of the Revised Statutes (1 R. S. 730. § 66), appointed Andrews as a person to execute the same under its direction, there being no power in the court to appoint a new trustee upon the death of a surviving trustee. It is only in a case where the trustee has resigned or is removed that the statute gives the court power to appoint a new trustee.

Upon the trial the foregoing facts appeared, many of which, however, not being found by the court. It also appeared that, subsequent to the commencement of this action, said Andrews had received certain surplus moneys arising from a sale of some real estate which had belonged to said Harriet J. Hopper, a mortgage upon which having been foreclosed. An interlocutory judgment was entered stating that it appearing satisfactorily to the court that said Harriet J. Hopper, deceased, as guardian of the plaintiff, died possessed of property belonging to the plaintiff for which she had never rendered an account, and that the defendants, or some of them, are now liable to account therefor; and it further appearing that it was necessary and proper that an accounting should be had of the estate and property of the plaintiff which came into the hands of Harriet J. Hopper, deceased, it was ordered, adjudged, and decreed that it should be referred to a referee to take and state the account of Harriet J. Hopper, deceased, as guardian for the plaintiff, and that he should report with all convenient speed the amount received by said guardian, and the amount of moneys which could be reasonably and properly allowed to said guardian, for the support, maintenance, and education of said infant from the time of her appointment as guardian down to .the majority of said infant, and stating the balance with which she could be charged at the time of the majority of said infant, and at’ the time of tííe decease of said Harriet J. Hopper; and, further, that, on the coming in and confirmation of said report, application might be made on due notice for final judgment. The referee duly proceeded under his appointment, and found that a certain sum should be allowed for the support, maintenance, and education of the infant by her guardian, and that there was due from said guardian at the time of her decease the sum of $4,405.67. Upon the coming in of said report, a final judgment was entered, which adjudged and decreed that the plaintiff have judgment against the defendant Andrews as testamentary trustee under the will of said Harriet J. Hopper, deceased, for the sum of $4,405.67, together with interest thereon from January 2, 1886, making $6,394.98, and together with certain costs; and, further, that the plaintiff have execution therefor- against said Andrews, as testamentary trustee, and against the property and estate of Harriet J. Hopper, deceased. And from the judgment and the interlocutory judgment above mentioned the guardian of the infant defendants has duly appealed.

It is urged, upon the part of the plaintiff, that the appeal should be dismissed for the reason that the judgment is not against them, but against the testamentary trustee of the estate of their mother; and, furthermore, because it appears that the testamentary trustee has in hand surplus moneys derived from the sale of land belonging to the deceased guardian, and the burden is upon such trustee to show that she or he has parted with it in the course of due administration of the estate ; and, until it has been so shown, the same must be held to answer for all just demands and claims thereon, and not until those are satisfied can an heir be considered to have an interest in the estate or right to distribution under the terms of the will. Any party aggrieved has a rigjit to appeal from a decree, and as the 'judgment and interlocutory judgment in this case tend to deprive these infants of at least a portion of the estate left to them by their mother, in which they have a vested interest, their right to maintain this appeal, in order that they should not be so deprived unjustly, hardly needs argument.

It is further claimed that, there having been no requests to find made on behalf of the infants, they have therefore no standing in court. Exceptions were duly filed to some of the findings of fact and to all of the conclusions of law of the court upon the entry of the interlocutory judgment. Those exceptions clearly bring up the question as to the right to maintain this action.

We have examined in vain to find any theory upon which this action can possibly be maintained. It was assumed by the judge before whom this case was tried that the personal representatives of the deceased guardian were before the court in this action; and that as the surrogate by § 2606 of the Code, has the right to call such personal representatives to an account in regard to the trust estate, so has a court of equity. But the difficulty is in the assumption which has been indulged in. This so-called testamentary trustee in no manner represented the estate of the deceased guardian. He was not appointed an executor with the will annexed, which would have been necessary in order that he should represent the estate of the deceased guardian. All that he did represent was that portion of the estate which belonged to these infants, and there is certainly no justice in talcing the whole amount of this claim out of the infants’ pockets, when the persons who got the other half of the guardian’s estate are allowed to escape free, in defiance of the express provisions of § 1839 of the Code, which provides that such recovery must be apportioned. How, it is a very familiar principle that if proceedings are to be taken against heirs and legatees of a will, in order to recover claims against the estate, upon the theory that assets of the estate have been paid or distributed to them, the provisions of the statute governing such actions must be complied with. In the case at bar there does not seem to have been the slightest attempt to comply with any such provisions. It seems to have been supposed that it was sufficient to show that somebody had in his possession certain property coming from the estate of the deceased guardian, and that such guardian’s estate was indebted to the plaintiff, and a recovery could be had. This idea is absolutely in contravention of the requirements of the Code in regard to the maintenance of actions against heirs and legatees to recover debts of the decedent. 1

It 1ms not been thought necessary in the disposition of this case to discuss the main question as to whether under circumstances such as were disclosed upon this trial the plaintiff can have a preference over other creditors, if any existed, or whether the surplus money is to be considered as personal property or real estate, the discussion of such questions not being necessary to the decision. The judgments appealed from must be reversed, and a new trial ordered, with costs to the appellant to abide the event.

All concur.


author: O’Brien, J. Parker, J. (dissenting).

text:
    Corn Exchange Bank, Resp’t, v. American Dock and Trust Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May, 1894.)

    1. Estoppel—Corporation.
    In an action upon warehouse receipts, issued by the president of a corporation in his own favor, the corporation is estopped from disputing the validity of the receipts only by conduct on the part of its officers broad enough to amount to an assurance that, the receipts are those of the corporation.
    8. Appeal—Charos.
    The question whether the corporation had assented to its president’s assumption of authority to make certificates acknowledging storage of cotton on his own account, was held to have been fairly presented to the jury.
    3. Same—Error cured.
    An error in the main charge is cured by a subsequent accurate instruction at the appellant’s request.
    Appeal from judgment entered on verdict, and from order denying a motion for new trial.

      Tkaddeus D. Kenneson, for app’lt; John M. Bowers, for resp’t.
   O’Brien, J.

I concur with Mr. Justice Parker, and for the reasons given by him, that under the evidence the plaintiff was entitled to go to the jury on the question, “ Whether defendant had assented to its president’s assumption of authority to make certificates acknowledging storage of cotton on his account.’’ If this question was fairly presented, the verdict of the jury should not be disturbed, and the question is whether it was so presented or not.

I also agree with Mr. Justice Parker in his view that it was not a correct statement of the law to charge that the plaintiff .can only recover in this action if you shall find from the evidence in this case that Mr. Jewell told Mr. Mead that Mr. Stone had 194 bales of cotton there. And it recovers then because the defendant will be estopped from denying the truth of the statement.” The error into which the court fell in thus stating the law in its main charge seems to have been entirely cured when, after his attention was called to the statement, and at the request of the defendant, the judge correctly stated the law to be, “that the defendant cannot bo estopped from denying the genuineness of the alleged warehouse receipts unless they find that Mr. Jewell represented to Mr. Mead that the defendant had at the time of the inquiry the cotton mentioned in the alleged warehouse receipts, and that that cotton belonged to Stone, and that such representation was made with knowledge that the bank was making the inquiry for the purpose of acting or relying upon it.” I think that by this instruction, which was full and clear, the prior inaccurate statement in the charge was cured.

It is true that in a subsequent discussion between counsel for the defendant and the court some obscurity may have resulted from the colloquy between them ; but if there did, counsel has only himself to blame; because, after the original charge containing the inaccuracy was finished, and having called the attention of the court specifically to it by a request which was full and accurate, he should have been content to allow that branch of the case to rest in that condition. He saw fit, however, to except to the very portion of the charge which was thus cured by his own request; and for the confusion which may have been thus created, I do not think he is entitled to be rewarded by having the judgment on this ground alone reversed.

I think, therefore, that the judgment should be affirmed, with costs.

Van Brunt, P. J., concurs.

Parker, J. (dissenting).

— On the 9th day of February. 1891, Medad W. Stone, the president of the American Dock and Trust Company, made his certain note to the Corn Exchange Bank for the sum of five thousand dollars, and deposited with said bank, as security for the money advanced him on such note, two papers purporting to be warehouse receipts issued by the defendant in this action.

One of such receipts was dated December 28d, 1890, and was in these words:

“M. W. Stone, Pres’t., A. J. Pouch, Yice-Pres’t,

“F. H. Pouch, Treas., A. 0. Hasey, Sec’y.

“American Dock and Trust Company.

“Number of certificate ■ “Office, Cotton Exchange, Rooms 24,820.. 50 and 51, New York.

New York, December 28,' 1890.

“Received in storage at the American Docks, for account of M. W. Stone:

“One hundred and twenty-two bales of cotton.

“50x R. V. 50 U. W. W., 22 W. I. L.

“Subject to the order of themselves.

“on payment of the charges accrued thereon and surrender of this receipt.

“Weight or grade not guaranteed.

“Labor 10c.

“Storage per month, 10c.

“Bales 122.

“Store 5.

M. W. Stone, Pres’t.”

(Indorsed on left-hand margin): “This receipt is valid only when signed by either the President or Treasurer.”

(Indorsed on back):

(Indorsement for delivery).

“The property mentioned below is hereby released from this receipt for delivery from warehouse.

“Date, Merchandise, Marks, Signature,

“M. W. Stone.”

The other receipt was in the same form, but dated December 23, 1891.

These warehouse receipts were in the usual form of warehouse receipts issued by the defendant, except that the president who signed the receipt was also named as the person for whose account the goods were said to have been stored.

After the maturity of the note, the plaintiff demanded the cotton which the receipts purported to describe. But as Stone had not deposited the cotton in the warehouse, the demand was refused. Hence this action.

Plaintiff’s officers knew at the time of discounting the note that the person named in the receipt as the one on whose account the bales of cotton therein described had been stored, was the same person who, as president, had signed the receipt, and also knew that he was making use of it for his own personal benefit.

The facts so far presented are precisely like those in Bank of N. Y. National Banking Association v. this defendant, 70 Hun, 152; 53 St. Rep. 905, and Hanover National Bank v. this defendant, 75 Hun, 55; 56 St. Rep. 862, in which it was held that the facts were such as to put the plaintiff upon inquiry touching the authority of the president to issue the receipts.

In the latter case it was held that where a situation is presented which the law declares should put 'a person of ordinary prudence upon inquiry, he is chargeable with constructive notice of everything to which that inquiry would reasonably have led him, and nothing more; that failure to inquire would not work the defeat of the party chargeable with inquiry, should he prove upon the trial the existence of such facts, at the time inquiry should have been made, as would have protected him had he inquired before accepting the paper. And it was held that the facts of that case tending to show assent on the part of the officers of the corporation to the acts of its president, in signing certificates in behalf of the corporation, representing that it had stored for him cotton, were of such a character as entitled the plaintiff to a submission of the question to the jury whether the defendant had assented to the president’s assumption of authority in making such certificates.

In this action the plaintiff, in attempting to meet the burden resting upon it, proved the facts which led this court to decide that there was a question for the jury in the Hanover National Bank Case. It also proved that it did make some inquiry, not before it had discounted the paper, it is true, but in time to have saved it from loss, had the result of its investigation led it to doubt the authority of the president of the defendant to sign the receipts.

Plaintiff’s loan clerk testified that William Mead, an employee of the Corn Exchange Bank, and whose principal employment in the bank was to make an examination of all merchandise offered as collateral to loans, was directed by him to make an examination and to assist him in the matter; he gave him a memorandum containing the warehouse marks, the name of the man who borrowed on the cotton, the number of bales and the marks on the bales. Mead testified'that he had been connected with -the bank for a number of years, and had been in the habit of visiting this warehouse on similar errands, and that the person with whom he had always transacted the business was a Mr. Jewell, the bookkeeper in charge of the office, who also had charge of the office, who also had charge of the receipt and storage of cotton; that the paper which he received from Mr. Nichols containing a statement of the number of bales, the marks on the bales, the name of the person who stored it and the number of bales stored.

“ That paper,” said the witness, I handed to Mr. Jewell and said to him, ‘I come.to learn something about that cotton, to see that cotton,’ and he said, ‘ That cotton is here, but it is inspected now, and has the inspection number on it.’ ” After the interview had ended, Mead returned to the bank and announced that the cotton was in the warehouse and inspected. Jewell, defendant’s employee, speaking of the same interview, said: “ I stated to Mr. Mead that we had cotton of these marks, and that they had been inspected, and I gave him the inspection numbers into which thesé marks had been changed. I did not tell him who owned that cotton. He did not ask me who owned that cotton. He did not say anything about a certificate having been issued to Mr. Stone.”

A careful examination of the testimony shows that there was no direct conflict in their evidence, although the witnesses must ” have intended that different inferences should be drawn. Jewell, defendant’s employee, asserts, with great positiveness, that Mead did not tell him who owned the cotton ; not that he did not know who owned it. But Mead did not testify that he told him that Stone owned the cotton, but instead he said, “ I handed Jewell the paper containing, among other things, the name of Stone, the president, on whose account the cotton was stored.” Thereupon Jewell said, “That cotton is here.” It is clear that the jury would have been authorized to infer from the testimony that Jewell did know that the object of the inquiry was to ascertain whether Stone had in storage the cotton described in the receipt, and with such knowledge informed plaintiff’s employee that the cotton was there.

Under the evidence, therefore, the plaintiff was entitled to go to the jury on the question whether defendant had assented to its president’s assumption of authority to make certificates acknowledging storage of cotton on his account. While the court rightfully denied the motion to dismiss the complaint, because there was presented a question for the jury, which we have pointed out, it did not submit any such question to them.

Instead, the jury were instructed that “ The plaintiff can only recover in this action if you shall find from the evidence in this case that Mr. Jewell told Mr. Mead that Mr. Stone had 194 bales of cotton there. * * And it recovers then because the defendant will be estopped from denying the truth of the statement” This proposition does not seem to be entirely accurate. If Mead had inquired of-Jewell whether Stone had 194 bales of cotton in storage, and received a reply in the affirmative, when the statement was not true, that would not of itself have estopped the defendants from denying the execution of the contract upon which the possession of the cotton was sought to be acquired.

The right to maintain the action does not depend in any measure upon the possession by the defendant of the cotton described. Were it so, then the assertion pf the possession of cotton, when there was none, would quite likely be held to have estopped defendant from denying it as against one led into an investment on the faith of the assertion or possession. But that-is not the case. Plaintiff’s right of recovery is not founded upon the actual possession of the cotton by the defendant, or its assertion of possession, but rather upon what is alleged to be its agreement; and the defendant can only be estopped from denying the agreement by conduct on the part of its officers, or some one of them, broad enough to amount to an assurance that the alleged certificate or receipt was that of the corporation. The action is upon the contract. Defendant’s liability depends upon its validity. That rests, not on the question of whether there was cotton in defendant’s warehouse belonging to Stone, but whether its making was authorized. If there never was any such cotton in defendant’s possession, there will be a recovery if the agreement be valid. If there was and still is cotton there belonging to Stone, there can still be no recovery unless the agreement be valid, or defendant estopped from denying it. To say casually, or in response to inquiry, that Stone had cotton on storage would amount toan assertion of an immaterial fact.. It would not have placed the plaintiff in any worse position certainly than if it had been true. If true, there could be no recovery, unless defendant can be properly charged with making the certificate. If plaintiff’s assertion of what took place between Mead and Je.well were undisputed, it is possible that it might-be deemed broad enough to create an estoppel, because his description of the paper which he says he handed to Jewell informed him that plaintiff was trying to ascertain whether it should take a certificate made by the defendant, declaring that its president who signed it had on storage 194 bales of cotton. And when, after examining the paper, if it be true, as Mead asserts, Jewell said, “We have that cotton,” his . answer might be held to imply more than that he had 194 bales of cotton belonging to Stone, for it would have amounted in effect to an assertion by the only person in authority present that the certificate was all right.

But Mead’s testimony was in some measure disputed. While, according to Jewell’s testimony, he did not deny that Mead was inquiring about a certificate which acknowledged that Stone had cotton in storage, lie did say that nothing was said about Stone, and the inference was permissible, from his testimony, considered as a whole, that he was without knowledge of the existence of the certificate which was the subject of Mead’s inquiry. If the views expressed be correct, it would seem to follow that the most favorable charge on the question of estoppel to which plaintiff was entitled was that if the jury should find that Jewell knew that Mead was attempting to ascertain whether the certificate was all right, and described cotton in storage to the account of Stone, and that his answer was intended to be in the affirmative, then the defendant could not be heard to deny the validity of the certificate. The instruction given was, therefore, too broad, and defendant’s exception thereto was well taken.

The judgment should be reversed and new trial ordered, with costs to the appellant to abide the event


author: Andrews, Ch. J.

text:
    William H. Weaver, Resp’t, v. William W. Haviland, Individually and as Administrator, etc., App’lt.

      (Court of Appeals,

      Filed June 5, 1894)

    1. Limitation—When begins to run.
    A right of action in favor of a creditor to set aside a fraudulent transfer does not accrue until the recovery of a judgment in this state against the debtor and the return of an execution thereon unsatisfied. Till this time, the statute of limitations does not begin to run.

      2. Same.
    The provision of subd. 5, § 382 of the Code, provides for a class of cases where the right of action was perfect, but the fraud is not discovered until a subsequent period.
    8. Same.
    Such action is not affected by the fact that an action for money had and received, arising in the case, was barred by the statute.
    Appeal from judgment of the general term of the supreme court in the fifth judicial department, entered upon an order made March 28, 1893, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial at special term.
    The nature of the action and the facts, so far as material, are stated in the opinion.

      Backenstose & Keyes, for app’lt; Reed & Shutt, for resp’t.

      Affirming, 52 St. Rep. 311.

   Andrews, Ch. J.

This is a judgment creditor’s action, and the only defense relied upon at the trial was the statute of limitations. The action was commenced February 13, 1892. It appears from the pleadings that Pliebe Haviland, mother of the defendant, took under the will of her husband, who died September 17, 1878, the use of his real estate and the income of his personal property for life. His real estate consisted of a house and lot in Geneva, in this state, and he held a mortgage on lands in Michigan, executed by Henry S. Weaver and wife. On the 13th day of April, 1880, Phebe Haviland, as executor of her husband's will, she then being in the state of Michigan, sold and assigned the mortgage to one Fish for the sum of $2,600, falsely representing to Fish that that sum was due and unpaid thereon, whereas in fact there was due and unpaid only the sum of $2,100. Fish, upon ascertaining the fact, commenced an action in the courts of Michigan against Phebe Haviland to recover back the sum paid in excess of the amount due on the mortgage, and on June 9, 1881, recovered a judgment against her in the action. An action on this judgment was subsequently brought in the supreme court of this state January 28, 1886, and judgment was recovered thereon against Phebe Haviland March 9,' 1886, for $667.47, and execution thereon was issued and returned unsatisfied, Phebe Haviland, at the time of the death of her husband and ever thereafter, was a resident of the state of New York. It is found that shortly before the recovery of the Michigan judgment, and on or about June 2, 1881, Phebe Haviland conveyed to defendant William W. Haviland her life estate in the house and lot, and gave to him the moneys received by her from Fish on the transfer of the mortgage, without consideration, and for the purpose of placing her property out of her hands, so that the same could not be reached upon a judgment in the action. Phebe Haviland died intestate August 2, 1888. This action is brought to reach the interest of Phebe Haviland in the property so fraudulently transferred to the defendant. There is another fact disclosed .bv the evidence as to which there is no finding, but which is deemed important by the counsel for the defendant, viz., that the money paid on the mortgage by Fish was at the time received by the defendant, and was retained by him as his own, with the consent of Phebe Haviland, But if this finding had been made the evidence would have justified the further finding that the defendant assumed to act in the transaction as. the agent of his mother, and that Fish supposed he was so acting, and had no information, until the examination of the defendant in supplementary proceedings shortly before the bringing of this action, that the money had been retained by him.

The limitation of time for bringing actions in the nature of a creditor’s bill to set aside a conveyance or transfer made by the judgment debtor in fraud of creditors is prescribed by section 382 of the Code of Civil Procedure. By the fifth subdivision of that section, a creditor’s action must be commenced within six 3'ears “ after the cause of action has accrued.” Such an'action is to procure a judgment “ other than for a sum of money on the ground of fraud in a case which on the 31st day of December, 1846, was cognizable by the court of chancery.” The words “ other than for a sum of money ” in subdivision 5 included those cases in which equitable relief is required, although as part of the ultimate relief a money judgment is also demanded. Carr v. Thompson, 87 N. Y. 160. Unless, therefore, the right of action to set aside the fraudulent transfer from Phebe Haviland to the defendant accrued to the plaintiff more than six years prior to February 13th, 1892, the day of the commencement of the action, the action was not barred. The right of Fish to bring an action to set aside the transfer did not accrue until he had recovered a judgment in this state against Phebe Haviland and the return of an execution unsatisfied. Until his claim against Phebe Haviland had ripened into a judgment he stood as a general creditor merely and was not in a situation to assail the transfer to the defendant. The authorities upon this point are numerous and decisive. Reubens v. Joel, 13 N. Y. 488; Dunlevy v. Tallmadge, 32 N. Y. 457; Geery v. Geery, 63 N. Y. 252; Adsit v. Butler, 87 N. Y. 585. The time when the fraud was committed is not the period from which the limitation is to be computed, but the time when the plaintiff had acquired a standing to assail it. The present action was commenced within six years after Fish had recovered his judgment here. The defendant, in the absence of fraud or collusion, cannot question the validity of the claim upon which it was rendered, and he acquired no immunity from pursuit because of the time which intervened between the fraudulent transaction and the rendition of the judgment. Decker v. Decker, 108 N. Y. 128. The clause in sub. 5, § 382, following the clause above quoted, “the cause of action in such a case is not deemed to have accrued until the discovery by the plaintiff or the person under which he claims of the facts constituting the fraud,” does not help the defendant. ‘ This clause was added to enlarge the time for bringing the action beyond the six years in the case specified. It was not intended to make the date of the discovery of the fraud the time of the accruing of the right of action in cases where the fraud was known, but the plaintiff had not established his claim by judgment. The clause was inserted to provide for a class of cases where the right of action was perfect, but the fraud had not been discovered until a subsequent period. Gates v. Andrews, 37 N. Y. 657. It is; however, a sufficient answer to the claim based on this clause of subd. 5 that there is no evidence or finding that the plaintiff or his assignor, Fish, had any notice of the fraudulent transfer until shortly before the commencement of the action.

The further claim is made that a cause of action for money had and received could have been maintained by Fish against the defendant to recover the overpayment on the mortgage, immediately after the money came to his hands, he having received and retained it without consideration, and that this cause of action was barred by the lapse of six years and before this action was brought. The defendant may be right in his contention. Roberts v. Ely, 113 N. Y. 128; 22 St. Rep. 185. But assuming this to be true the present action is not based on an original liability of the defendant arising from his connection with the sale of the mortgage. The plaintiff’s assignor did not elect to proceed against the defendant upon this liability. He brought his action against the Phebe Haviland, the principal in the transaction, and on recovering judgment against her brought this action based upon that judgment, to charge the defendant on account of his fraudulent dealings with her to the prejudice of her creditors. The cause of action is entirely distinct from the cause of action against him for money had and received, and is in no way dependent upon his original relation to the transfer of the mortgage or the recovery had thereon. lie is called upon to answer for the property of Phebe Haviland, received by him in fraud of her creditors. Whether he was connected with the original fraud in the sale of the mortgage is wholly immaterial in the present action, except as it may reflect upon his fraudulent intent in his subsequent dealings with Phebe Haviland.

We think me cterense of the Statute of Limitations failed and the judgment should, therefore, be affirmed, with costs.

All concur.

Judgment affirmed.


author: O’Brien, J.

text:
    William B. Griffin, App’lt, v. J. Hyler White, as Survivor, etc., Resp’t.

      (Court of Appeals,

      Filed June 5, 1894.)

    Contkact—Construction.
    Where a party has used -a patented invention with the consent of the patentee, without any express agreement as to the royalty or compensation to be paid to him for such use, the latter is simply entitled to recover the reasonable value of such use.
    Appeal from judgment of the general term of the supreme court in the third judicial department, entered upon an order made at the November term, 1892, which affirmed a judgment in favor of defendant entered upon a decision of the court on trial at circuit without a jury.
    This was an action upon a contract made between plaintiff and the firm of Joubert & White of which firm defendant is the surviving partner.
    The provisions of the contract and the facts, so far as material, are stated in the opinion.

      Esek Cowen, for app’lt; A. J. Oherritree, for resp’t.

       Reversing 51 St. Rep. 253.

   O’Brien, J.

The plaintiff is the assignee of a contract made by his assignor, one Knapp, on the 9th of March, 1881, with a firm of which the defendant is the surviving member. The original parties to the contract each owned a patented device" or improvement to be used in the manufacture of backboard wagons. It was claimed that one of the devices was an' in fringement upon the other, which claim resulted in litigation between them, which was settled by the execution of the contract. This settlement and agreement combined both patents and their use in the defendant and his partner, they stipulating to pay to the plaintiff’s assignor certain specified sums as royalties for the use of the patent, which had been granted to him and which he owned. The following are the material provisions of the contract:

“ First. The said parties of the second part are hereby authorized to sell rights and territory under each of said patents, and they agree to use their best endeavors to do so with all convenient speed.

“ Second. The parties of the second part are to pay all the expenses of traveling, selling, advertising and all other expenses connected with the granting of licenses or making sales under said patents or either of them, and pay over to said Knapp one-fourth of all sums received for sales or licenses.

“ Third. Upon all wagons made by the parties of the second part or by them and their associates, the said Knapp is to be paid by them $1.25 for each wagon made and sold. All payments to be made to said Knapp every three months.

“ Fourth. The said parties of the second part shall have.the exclusive right to manage said patents and grant licenses, and they are authorized to sign the name of said Knapp to deeds or licenses for that purpose.

“ Fifth. This contract shall cover all improvements hereafter made to such wagons, no matter which party shall make the improvement”

This contract conferred upon the defendant’s firm the right to use the patent of the other party and the use contemplated was thus classified

1. The right to grant licenses to other individuals or firms to use the patent in their business and to license its use within particular territory. In such cases it was the interest of the license to make the best bargain that he could and to obtain as large a fee as possible, but whatever revenue was received from that source, one-fourth of the amount was to paid to the patentee.

2. .The defendant’s firm were also manufacturers of this grade of wagons and desired to use the patent in their business, and they agreed to account and pay over to the patentee for this use of the improvement a fixed sum, namely, $1.25 for each wagon made and sold by them. The parties evidently supposed when the contract was made that this classification would cover every possible use to which the defendant’s firm could apply the patent and every source from which revenue could be derived. But; some time after the execution of the contract, the defendant prepared some gears for the purpose of advertising the wagon to which the improvement covered by the patent was attached. The gear was composed of two slats or bands attached to four wooden cross-bars with boards, with side steel springs, and two other wooden bars detached from each other. From their use as a means of advertising the completed wagon thejr were gradually introduced into the trade as ,a separate article and in that form sold to dealers for about $9 each,, while the completed wagon with the patent improvement as sold by the defendant on the market at prices ranging from $100 to $200 each, according to style and finish. Since June 1, 1891, the defendant’s firm made and sold four hundred gears, and the question in this case is whether they are to be treated as wagons upon which the plaintiff is to be paid $1.25 each or as embraced within the other provision of the contract The learned trial judge held that the manufacture and sale of such gears by the defendant was a proper and reasonable exercise of the power conferred by the contract to grant rights and licenses for the use of the' patent in combination with parts of a wagon and the plaintiff was entitled to receive one-fourth of the sum actually received by the defendant for the right to use the patent in that way. This amount he determined by ascertaining the cost of the material and labor in the construction of the article and adding to the same a reasonable trade profit and deducting such sum from the price for which the gear sold in the market. In this way the value of the use of the patent was found to be one dollar on each gear, one-fourth of which he awarded to the plaintiff, who insists that he was entitled to have the gear counted as a wagon and royalties paid in the same way as if they had all been used upon completed wagons made and sold. For all completed wagons made and sold and all territorial or other licenses granted to the defendant he has fully accounted and paid the plaintiff or his assignor, according to the terms of the contract, and thus the controversy is reduced to a comparatively small sum, the amount of which must depend upon the construction which should be given to the contract, keeping in view the terms which the parties employed to express their meaning, and all the surrounding "circumstances. We think it is quite plain that it was not the intention of the parties that the same royalty should be paid for the use of the patented improvement when used upon a completed wagon, selling at a price from $100 to $200, and a gear, selling at $9. Presumptively the royalty was fixed with some reference to the price which the article brought to which it was attached and became a part. The value of the improvement depended upon the extent that it would enhance the selling price of the article of which it formed a part, and it is quite plain that its use did not affect the value of the gear in the same way or in the same proportion that it did the value of a "wagon. It enhanced the profit which the manufacturer made upon a wagon quite largely, while it did not have the same effect upon the profit realized from the sale of a gear. The licensee could not afford to pay the same price for the use of the invention upon a gear, selling for $9 and costing $8, as he could for its use upon a wagon selling for $200. He agreed to pay a fixed sum for the use when applied to a wagon, but a gear is not a wagon, it is only a part of a wagon. The contention of the learned counsel for the plaintiff must, therefore, find some support outside the terms of the agreement to pay a specified sum on each wagon made and sold. Hor do we think that the parties ever intended by their agreement to permit the defendant to license himself to use the. invention upon a gear as a single article for the trade, and so we are unable to adopt either the theory of the court below or that of the plaintiff’s counsel. It is quite plain, we think, that the invention was applied to a purpose not covered by the terms of the contract and not within the contemplation of the parties when it was made. At that time its use for such purpose was unknown, but was developed subsequently, and both parties are now struggling to make the contract fit a state of things not thought of or in the minds of the parties when it was made. But while the use of the invention upon the gear was outside of the contract, it was not an infringement upon the rights of the patentee or the owner, since he consented to such use. The defendant’s firm reported to him from time to time the number of gears upon which it was used, and they recognized their obligation to pay for such use, and the course of business was such as to leave no doubt about the fact that the plaintiff’s assignor consented to the use of the invention in this way and expected the defendant to pay him for it. The only point upon which they differed, or rather upon which their minds never met, was the measure of compensation, and that was never settled, one party claiming that it was governed by the clause providing for a fixed sum upon a wagon, and the other that the case came within the clause providing for payment of one-fourth the license fees. The case then is one where the defendant’s firm has used the patented invention with the consent and permission of the patentee, without any express agreement as to the royalty or compensation to be paid to him for such use, and, hence, the plaintiff was entitled to recover the reasonable value of such use whatever it is. W e will not now attempt to ascertain whether such value is more or less than the amount awarded him by the judgment nor to point out the method by which it is to be determined. In our view the learned court below in measuring the damages applied an erroneous principle, since it was held that the case came within that part of the contract which secured to the owner of "the patent one-fourth of the license fees which the defendant received or became entitled to for territorial or individual licenses. The construction of the contract that we have adopted is perfectly just to both parties. The plaintiff, or the owner of the patent, is at liberty to terminate the present arrangement which has grown up from the course of business, and by notice or otherwise withdraw his consent to any further use of the invention upon gears, as a single article for the trade. If after the consent, express or implied, by the patentee to the use of the invention in this way has been withdrawn or terminated, the defendant should still continue sucli use, he would be liable as for an infringement or an unauthorized use of the invention. It is still open to both parties, if they so desire, to amend the contract or make a new one in such terms as to expressly authorize the use of the patent for the purposes in which the present controversy originated, upon such terms and conditions as they may be able to .agree upon.

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

All concur.

Judgment reversed.