author: Fitzgerald, S.

text:
    In the Matter of the Estate of Joshua Brooks, Deceased.

      (Surrogate's Court, New York County,

      Filed December, 1894.)

    1. Tax—Transfer.
    An estate or interest, derived from the execution of a power of appointment, does not vest, nor is it created, until the time of appointment, though the source of its origin is found in the instrument conferring the power.
    2. Same.
    Where such estate or interest, which the heneficiary has taken under the power, as well as the right of the possession thereof, came into existence after the passage of chap. 399 of 1892, ky a transfer previously made, it is subject to the transfer tax.
    Petition by the trustees under the will of Joshua Brooks, deceased, to procure a determination as to the liability of the trust fund to the transfer tax.
   Fitzgerald, S.

The petitioners are trustees under the will of Joshua Brooks, who died August 20, 1859, being a resident of the city of New York. Sophia Brooks, a daughter of said decedent, died May 28, 1893, in the city of New York, of which she was a resident. Under the will of Joshua Brooks, his said daughter was given the income during life of a certain trust fund, over the principal of which she was given the power of appointment by will. The will by which she executed this power has been admitted to probate, and the trustees now hold the said principal fund, consisting of more than §100,000. This proceeding is instituted for the puipose of procuring a determination as to the liability of the fund to the transfer tax. While at the date the will of Joshua Brooks went into effect, there was no law subjecting to taxation transfers of property passing thereby, it is claimed on the part of the comptroller that, by chapter 399 of the Laws of 1892, a transfer of the character specified, when it takes effect in possession or expectancy subsequently to the passage of that act, although it does so by virtue of a deed or will executed prior thereto, is nevertheless liable to taxation. To sustain this contention, he relies upon the sentence immediately preceding the clause at the end of subdivision 3 of section 1 of the act, which reads as follows: “Such tax shall also be imposed when any such person or corporation becomes beneficially entitled in possession or expectancy to any property or the income thereof by any such transfer, whether made before or after the passage of this act.” On behalf of the trustees and appointees, it is claimed that the sentence quoted applies only to transfers by deed, grant, etc., and has no application where the transfer is effected by will. The comptroller answers this by the argument that to limit the sentence quoted to cases of this description will necessitate a similar limitation to the very last clause of the section which fixes the rate of taxation. This suggestion, to my mind, fully meets and refutes the argument that the retroactive clause must be confined in its purpose and effect to the transfers specified in the preceding clause of the subdivision. Is then, the fund or interest in question, and which is claimed to have passed under and by virtue of the will of Joshua Brooks, subject to taxation ? I have concluded that it is. An estate or interest derived from the execution of a power of appointment is regarded as acquired under and by virtue of the instrument raising the power. Nevertheless, such estate or interest does not vest nor is it created until the time of appointment, although the source of its origin is found in the instrument conferring the power. Jackson v. Davenport, 20 Johns. 551, 552; In re Stewart, 131 N. Y. 274; 43 St. Rep. 171. The circumstance that the appointee takes under such instrument as the source of his title, and not any notion that the estate or interest taken becomes vested, or is created, either actively or constructively, at the time such instrument goes into effect, is the reason for regarding the estate or interest created by the power as passing by a transfer made by such instrument within the meaning of the acts for the taxation of decedent’s estate. In re Stewart, supra. An estate or interest originating in the manner described is, with respect to the time of its creation and vesting, the same in effect as if it were an estate acquired by direct and exclusive operation of the instrument creating it, by a person who had come into being subsequently to the time when the instrument took effect. The devise of a remainder dependent upon a life estate, and vesting in such person upon his birth, is an instance of the disposition last referred to. The estate or interest so acquired does not vest nor come into existence until, in one case, the power has been executed, and, in the other, until the beneficiary has come into being. A different result the doctrine of relation is incapable of producing, and it is properly confined in its application in such cases and for the purposes of the acts mentioned to referring the estate or interest to the source, whether immediate or remote, from which the title is derived. In the present case the estate or interest which the beneficiary has taken under the power, as well as the right of the possession thereof, came into existence after the passage of the act'under consideration. Similarly, the beneficiary, as beneficiary, had no previous existence. Such being the case, there is no doubt that the beneficiary is, with respect to the estate or interest which he has so taken, a person who has become beneficially entitled in possession to property after the passage of the act of 1892, by a transfer previously made. An appraiser will therefore be appointed.


source: Caselaw Access Project

author: Rumsey, J.

license: Public Domain

text:
    Ida Green, Pl’ff, v. Middlesex Railroad Company, Def't.

      (Supreme Court, Monroe Special Term,

      Filed December 1894.)

    1. Deposition—Physical examination.
    When a party seeks to examine his adversary before trial, he must state in his affidavit the facts and circumstances which render such examination material and necessary.
    3. Same.
    When it is made to appear that the defendant is ignorant of the nature and extent of plaintiff’s injuries, he has shown sufficient to establish that the examination is necessary and material for his interests.
    3. Same—Apeidavit.
    The affidavit for such an examination, in an action for personal injuries, need not state that defendant intends to read the testimony on the trial, but is sufficient if it states that he intends to use it.
    Motion to vacate an order for plaintiff’s examination before trial. '

      Charles F. Miller, for pl’ff; J. H. Metcalf, for def't.
   Rumsey, J.

The action is brought to recover damages for personal injuries received by the plaintiff because of the negligence of the defendant, and the order for the examination of the plaintiff contained a provision that she should submit to a physical examination by two women physicians named in the order. The plaintiff moves to vacate this order for the insufficiency of the affidavit in two respects : First, that it does not comply with rule 83, by setting forth facts and circumstances to show that the examination was material and necessary for the defendant; and, second, that it is not made to appear by the affidavit that the defendant intends to read the testimony thus taken upon the trial. The affidavit of which complaint is made states fully the nature of the action and the claim made by the plaintiff as to the injuries which she received, from which it appears that the action is one to recover damages for personal inj uries. The affidavit further states that the defendant and its officers are ignorant of the nature and extent of the injuries complained of, and there is ño denial upon this motion that such is the fact. It appears by fair intendment upon the affidavit that the examination which is sought for is necessary to enable the defendant’s experts to qualify themselves for examination, and for that reason it is necessary to enable the defendant to prepare for trial. The plaintiff claims, however, that the application for a physical examination requires proof of precisely the same facts as were required for an oral examination of a party before trial, and that it is not sufficieht that it shall be made to appear that the defendant desires the examination simply for the purpose of enabling him to prepare himself and his witnesses for the trial. To establish her claim the plaintiff cites the case of Lyon v. Manhattan Railway Co., 142 N. Y. 298; 58 St. Rep. 800. In that case it appeared that an order had been made for a physical examination of the plaintiff by two physicians, but there was nothing in the order which reauired an oral examination of the plaintiff before trial. The special term refused to vacate the order, but its decision was reverséd at general term, 27 N. Y. Supp. 966, and the order of reversal was affirmed by the court of appeals. It appears from an examination of the case that the only question presented to the court of appeals was whether the order which required the plaintiff to submit to a physical examination, without at the same time requiring an oral examination, was correct in form. The court of appeals held that the amendment of 1893, authorizing a physical examination of the plaintiff, was to be construed as a part of the original Code of Procedure respecting the examination of a party before trial, and that, so construed, it required the physical examination to be had at the same time as an oral examination. For that reason it held that an order requiring the plaintiff simply to submit to a physical examination was erroneous in point of form, and could not stand. The whole case turned upon-the form of the older. There was no discussion as to the facts which the affidavit must show, nor was there any suggestion upon that subject. Indeed, there could not have been, because no question was made in the case of the sufficiency of the proof upon which the order was granted. There is no doubt that when a party seeks to examine his adversary before trial he must state in his affidavit the facts and circumstances which render such an examination material and necessary. Rule 83. This cannot be done by simply giving information to the court of the nature of the action and the allegations of the pleadings, unless that information is sufficient to show that the examination asked for is material and necessary.. The rule which requires the statement of these facts has not been changed by the amendment of § 873 of the Code, but there can- be no doubt that the amendment to that section has made a very considerable change in the law. Before the amendment it was the settled rule that a defendant in those actions was not entitled to a physical examination of his adversary. McQuigan v. D.,L. & W. Railroad Co., 129 N. Y. 50; 41 St. Rep. 382. The refusal of these examinations undoubtedly puts the defendant tó a very-great disadvantage in the trial of his case. The extent and nature of the injuries suffered by the plaintiff is always important, and frequently by far the most important of the facts to be presented to the jury because it is upon proof of the nature and extent of the injuries that the jury must base its conclusions as to the damages which should be recovered. Experience has shown that the damages suffered by the plaintiff was a matter almost exclusively within his own knowledge, and especially was this so when the symptoms were merely subjective. In such a case it almost always happened that the jury had no evidence upon the question of damages except the testimony and declarations of the plaintiff, and his complaints made to his physicians, and the inferences of his physicians drawn from these statements. In such cases it was utterly impossible for the defendant to obtain possession of any facts before trial upon which to base his testimony, or to get any testimony of experts except what was given in answer to hypothetical questions based upon the plaintiffs testimony. This conditian of affairs frequently resulted in grave -miscarriages of justice, and, while this was not always the case, yet it not seldom happened that, when the action was submitted to the jury, the evidence upon the question of damages was so inadequate that the verdicts were exceedingly unsatisfactory. It was to remedy this condition of affairs that the statute in question was passed. It is quite evident that the legislature intended to give the right to a physical examination tó enable the defendant to get the information upon these very points as to which he had before then been entirely in the dark. The wording of the statute establishes that very satisfactorily. It says that in every action to recover damages for personal injury the court or judge, in granting an order for the examination of the plaintiff before trial, may direct that the plaintiff submit to a physical examination. But it goes further than that. In the next sentence it provides that in any action brought to recover damages for personal injuries, “ where the defendant shall present to the court or judge satisfactory evidence that he is ignorant of the nature and extent of the injuries complained of,” the court or judge shall order that such physical examination be made. Where that fact has been made-to appear, the court has no discretion in the matter if the affidavit is in other respects sufficient. It seems to me that when it is made to appear that the defendant is ignorant of the nature and extent of the injuries, he has shown sufficient to establish that the examination is necessary ánd material for his interests. It is not merely a fishing examination which he asks for. The facts which he seeks to prove are purely without the knowledge of the plaintiff. They bear strongly upon the question of damages, and they are necessary to enable the defendant’s experts-to prepare themselves to give testimony on the trial. An examination for that purpose is widely different from one which is had simply to ascertain whether or not certain facts existed, and, if they do, to enable the party obtaining the examination to prepare to meet them. In actions of this nature the facts necessarily exist. A full and complete revelation with regard to them is necessary to the administration of justice, and for that reason, when it has been made to appear, pursuant to the statute, that the defendant is ignorant of the nature and extent of the injuries, which are the material facts, I think he has shown enough to comply with rule 83. .

The second objection of the plaintiff is that it has not been made to appear that the defendant intends to read the testimony upon the trial. To this there are two answers. It need not be stated in so many words that the defendant intends to read the testimony upon the trial. It is sufficient if that be made to appear by fair inference from any other facts. Fogg v. Fisk, 30 Hun, 61; Ball v. Eveniny Post Publishing Co., 12 Civ. Proc. R. 4; 5 St. Rep. 229. But the rule authorizing a physical examination in the presence of two physicians has materially altered the kind of testimony which is to be obtained by these examinations. . Hot only does the defendant procure the oral examination of the plaintiff, but he also procures the testimony of two expert witnesses, whom he has the right to swear at the trial. This testimony, in the nature of things, is not taken down by the referee and therefore is not to be read upon the trial, but is to be given viva voce in the presence of the jury. For this reason, when the defendant, in asking for such an examination, has stated that he proposes to use the testimony thus obtained upon the trial of the action, he has stated all that, in the nature of things, can be required. The motion to vacate the order for an examination must be denied. Motion denied.


author: Gaynor, J.

text:
    Catharine L. Sickels, Pl’ff, v. William H. Combs, Def’t.

      (Supreme Court, Kings Special Term,

      Filed June, 1894.)

    1. Injunction—Adequate bemedy at law.
    It is not enough that there is a remedy at law to prevent a court of equity from intervening, but there must be a reasonably clear and adequate remedy.
    3. Same.
    An injunction will lie to restrain the closing up of plaintiff’s store, under an execution against another person.
    Action to enjoin defendant from proceeding under an execution against a third person.

      Sidney V. Lowell, for pl’ff; Richard Marvin, for def’t.
   Gaynor, J.

The plaintiff makes out a case for relief by injunction. The defendant, a constable, has an execution against another person for $166.42 on a judgment in a justice’s court, and under it has seized the chattels of the plaintiff, consisting of a retail stock in trade, and a horse and wagon used in it, all of the value of $4,000, as the plaintiff alleges, and of the value of $3,000, as the defendant says in his notice of sale. He has also taken possession of the plaintiff’s store, in which she carries on the business, and of the books and papers of the business, and has locked up the store by means of a new lock which he has put on. He has thus completely interrupted the business. The plaintiff shows that the defendant is financially irresponsible for his acts of abuse of process and oppression, and that, by reason of such acts, if they be allowed to continue, she will suffer injury to her business and credit which she will not be able to recover of him, and for which she could not, in any event, recover adequate damages in an action at law. It seems clear that the damages that must result from such an interruption of the plaintiff’s business would be difficult, if not impossible, of accurate estimation in an action at law. It is not enough that there be a remedy at law to prevent a court of equity from intérvening, but there must be a reasonably clear and adequate remedy. It should be on the whole as practical and efficient as the remedy in equity ; otherwise the latter will be applied. Boyce v. Grundy, 3 Pet. 210. I see no reason why the impossibility or the extreme uncertainty of getting adequate damages in an action for trespass should not sustain this action. Though no case exactly in point in this state is cited, there are very similar cases involving the same principle. Turner v. Smith, 1 Abb. Prac. (N.S.)304; Tiernan v. Wilson, 6 Johns. Ch. 411, The chancellor gave relief in the latter case by setting aside tlie sale of real estate under execution, on the ground that the conduct of the officer in selling more than was necessary was fraudulent in law. The excessive levy in this case, and the exclusion of the plaintiff from her store, is a criminal offense, and fraudulent in lay/, and, it seems to me, also in fact. Courts of equity grant relief against the fraudulent use of ‘bonafide judgments. Tomkins v. Tomkins, 11 N. J. Eq. 515. In other jurisdictions injunctions have been granted as prayed for in this action, and on exactly the same grounds, and text writers point the case out as one for such relief. McCreery v. Sutherland, 23 Md. 471; Watson v. Sutherland, 5 Wall. 74; High, Inj. § 119; Lawson, Rights, Rem. & Prac. § 3702. It may need to be specially observed that the plaintiff has not an adequate remedy by an action of replevin, for the defendant could regain possession of the goods by giving the undertaking prescribed for that purpose. Let the injunction be made permanent. Ordered accordingly.


author: Cullen, J.

text:
    City of Brooklyn, Pl’ff, v. Long Island Water-Supply Company, Def't.

      (Supreme Court, Kings Special Term,

      Filed December 1894.)

    Costs—Extra allowance—Condemnation proceedings.
    Section 3372 of the Code applies to all condemnation proceedings, whether taken under the Code or under a special law.
    Motion for an additional allowance.

      Wm. C. De Witt and Thomas E. Pearsall, for the motion ; Albert G. McDonald, Corp. Counsel, opposed.
   Cullen, J.

There can be no question that an allowance should be made to the defendant for defending the proceedings to acquire its property, provided the court has power to make such an allowance. I think that the court has the power. Under section 3240 of the Code, costs in a special proceeding, where they are not specially regulated, may be allowed to any party at the rates allowed for similar proceedings in an action. In Railroad Co. v. Davis, 55 N. Y. 145, it was held that the right to grant extra allowances was confined solely to actions, and could not be granted in special proceedings. In Re Holden, 126 N. Y. 589, that doctrine has been reiterated emphatically. But, since the time when the two decisions cited were made, the Code has been altered by adding thereto the chapter called the “ Condemnation Law.” By this addition, § 3372, the court is expressly authorized to grant to the property owner an additional allowance, not exceeding 5 per cent, on the amount awarded. This change in the law has, in my judgment, abrogated the effect of these decisions, so far as it relates to proceedings to condemn land, even as to those which are not taken under the particular provisions of the law cited. The condemnation law is general. It was intended by it to reverse the rule announced by the court which forbade allowances in such proceedings, and to enact a new rule, to wit, the allowance of an indemnity to the landowner for the expenses of his defense. In re Lake Shore & M. S. Ry. Co. 48 St. Rep. 360. If costs can be awarded the respondent at all, it seems to me it should be such costs as are allowed by the Code in cases most similar to the one in hand. This is only answered by saying that § 3240 of the Code assimilates the costs to those of actions, and that proceedings under the condemnation law are not actions, but special proceedings. But, though commenced by petition and notice, the Code makes condemnation proceedings practically an action. Judgment is to be entered therein, and provisions for the conduct of actions are made to apply to it. I think the argument too technical which would give the respondent his costs as in an action, and deny his right to. an allowance as in condemnation proceedings. Application granted. I will hear the parties as to the amount.


author: Ingraham, J.

text:
    Henry W. T. Steinway, Pl’ff, v. William Steinway et al., Def’ts.

      (Supreme Court, New York Special Term,

      Filed December, 1894.)

    1. Will—Construction.
    A bequest of shares of stock to the executors and trustees in trust, to be managed by them for a fixed period of nearly fifteen years for the benefit of five persons, is in violation of the statute against perpetuities.
    2. Same—Absolute ownership.
    The term “absolute ownership,” in said statute, defined»
    3. Same—Waiver.
    The receipt of other legacies under the will'is not inconsistent with claiming that the trust is void.
    Action to construe a will.

      Edward B. Hill, for pl’ff; G. W. Coilerill, for def’t executors ; Samuel F. Prentiss, guardian ad litem, for infant def’ts.
   Ingraham, J.

The question to be determined in this case is whether the provision of the thirty-third clause of the will of W. F. T. Stein way, whereby 4,000 shares of the stock of the corporation of Stein way & Sons are disposed of, is valid; and it is with reluctance that I have been forced to the conclusion that the scheme of the testator cannot be sustained. The intention of the'testator is clear, and I think it also clear that to carry that intention into effect would be to violate the one limitation which the law of this state imposes upon the disposition of personal property, and that is that the vesting of the absolute ownership of such property shall not be suspended for a longer period than two lives in being at the date of the instrument containing the limitation or condition. The will of the testator, after making a large number of legacies, provides, in the thirty-third clause, for the disposition of his stock in the corporation above named. That clause commences as follows:

“ Thirty-Third. I give and bequeath all my shares in the corporation of Steinway & Sons, of the city of New York, to my executors and trustees, hereinafter named, in trust, to be managed by them .until the first day of January, in the year one thousand nine hundred and four (January 1st, 1904), as follows: A—One-fourth part of such shares in the Steinway & Sons’ corporation to and for the benefit of the five children of my sister, Wilhelmine Candidus, late of the city of New York, deceased, viz.: Louise Deppermann, wife of Gustave Deppermann, of Hamburg, Germany ; Albertine S. Ziegler, wife of Henry Ziegler, of New York; and Harry Candidus, Johanne Candidus, and Gustave Candidus, and to pay to them, in equal proportions, an annual sum representing an income of five per centum on and from such shares, and on the first day of January, 1904, to pay over, in equal proportions, to the said five children of Wilhelmine Candidus, deceased, or their heirs, the said shares in the Stein way & Sons’ corporation, or the proceeds thereof; to have and to hold to him, her, or them, his, her, or their heirs and assigns, forever. The excess of the annual income of such shares in the Stein way & Sons’ corporation, New York, over and above said five per centum, shall be retained by my executors and trustees, hereinafter named, as their compensation for the management of such shares, and such excess, ■annually, shall be divided pro rata among them or their successors until January 1, 1904.”

Subdivisions B and C of said clause make provision in identically the same language; subdivision B disposing of one-fourth part of said shares to and for the benefit of the children of his sister Dorrette Ziegler, and subdivision C disposing of one-fourth part of said shares to and for the benefit of his brother Charles Stein way. Subdivision D of the said clause contains a provision disposing of one-fourth part of said stock for the benefit of his brother William Stein way. But the variation between subdivision D and the other subdivisions is important, as throwing light upon the intention of the testator. Subdivision D is as follows :

“ One-fourth part of my shares in the said Steinway & Sous’ corporation to and for the benefit of my brother William Steinway, or, in case of his death prior to January 1st, 1904, to and for his son George A. Steinway, his daughter Paula Tb. Steinway, and his children by his second wife, Elizabeth C. Steinway, nee Eanft; and to pay to him, or, in case of his death, to his said children, an annual sum representing an income of five per centum in and from such shares, and on the 1st day of January, 1904, to pay over to my said brother William Steinway, or, in case of his death prior to that date, to his said children as mentioned in this section of this my last will and testament, or their heirs, in equal proportions, the said shares in the Steinway & Sons’ corporation, or the proceeds thereof; to have and to hold to him, her, or them, his, her, or their heirs or assigns, forever.”

And the clause then contains the same provision as to the excess of the annual income of such shares over and above the five per cent.

The thirty-sixth clause of the will is also important as showing just what the testator intended by the words “ to be managed,” contained in the first part of the thirty-third clause, as the trust upon which the shares were to be held. After appointing his ex■ecutors and trustees, he gives them full power and authority—

“To transfer or cause to be transferred any of my shares of stock in the Steinway & Sons’ corporation according to the terms of this, my last will and testament, and also to vote on any such shares in the stockholders’ meetings of the Steinway & Sons’ corporation,, and in their discretion to assent to or oppose any reduction or increase of the capital stock of said Steinway & Sons’ corporation ; and also, in case of such reduction of the capital stock.of the Steinway & Sons’ corporation, or the discontinuance of the said corporation being determined upon by the lawful majority of the stockholders of the Steinway &. Sons’ corporation, to invest the proceeds of my said shares therein (which shall not be less than the par value thereof) in securities deemed good and sufficient by them, and to apply and manage principal and interest of such investment precisely as I have directed to be done with my said shares of stock in the Steinway & Sons’ corporation.”

Our first duty is to ascertain, if possible, just what the intention of the testator was in respect to these shares of stock. As was-said by Chief Justice Church in Colton v. Fox, 67 N. Y. 848:

“ The intention of the testator must be ascertained, and the will construed accordingly, if practicable, and, when the construction is determined,—-that is, when it is ascertained what disposition the testator intended to make of his property,—the'question then is whether such disposition is in accordance with the law of the state.”

A careful consideration of these two clauses of the will that I have named can leave no doubt as to what the testator intended. The intention is clearly expressed that his stock in the Steinway & Sons’ corporation should be held by his executors ; should stand in their name upon the books of the corporation ; should be voted upon by them for the election of officers and the control of the-business of the 'corporation, even so far as to reduce the stock orto dissolve the corporation, according to their discretion, until January 1, 1904. During that period neither of the persons who-are ultimately tobe entitled to have thé stock transferred to them was to have the slightest voice in the management of the corporation, in the disposition of its business, the election of its officers, or in the continuance of the business of the corporation. No-power of sale is given to the trustees to sell a share of this stock. If the business of the corporation was discontinued, and its assets divided among the stockholders, then the trustees were to receive the proceeds, and invest and hold the same so invested in lieu of the stock itself; but, unless the corporation was dissolved, and its business terminated, the trustees could not sell the stock in any way that would transfer the title from themselves, nor could either of the persons who were ultimately entitled to receive the stock during this period sell it, nor would it be liable to be applied to the payment of debts, or disposed of in any one of the numerous-ways that a person can dispose of his personal property. Tlius, in subdivisions A, B, and 0, the executors or trustees were “ to-pay over in equal proportions to the said five children of Wilhelmine, deceased, or their heirs, the said shares in the Steinway & Sons’ corporation.” This, standing alone, would clearly show that the testator intended that in case of the death of either of the five children prior to January 1, 1904, the heirs were to stand in the place of the person dying, and were to receive the share that would be coming to him. The right to receive this portion of the stock, was, therefore, contingent upon either of the persons named being alive on the 1st day of January, 1904. But if there were any doubt from this provision as it stood, subdivision B makes it clear, for there the one-fourth of the shares was to be given to testator’s brother, William Steinway ; but, if he died prior to January 1, 1904, they were to be given to certain designated children, their heirs or assigns. Thus, during Mr. William Steinway's life, he could not assign or transfer his interest in these shares, but his right to receive the shares was contingent upon his living until January 1, 1904. If he should die before that time, then the right to receive the shares would vest absolutely in the children named. And to emphasize this intention, the testator, by the thirty-fifth clause of the will, after providing for the death of any one of the legatees named in the will, said:

“ This, however, shall not affect in any way the distribution of my shares in the Stein way & Sons’ corporation of New York, as provided for in the thirty-third section of this my last will and testament.”

Thus this stock, representing a value of over $1,000,000, was placed in such a position that it could not be sold or disposed of in any way for a period not limited upon lives in being, but fixed at .about 20 years from the date of the will, and nearly 15 years from the death of the testator. During that period it was the clear intention of the testator that the stock should not be sold or disposed of in any way, but should remain in bulk, managed and voted upon by the trustees, who were also to receive the dividends upon it, responsible to no one for their actions, and who-were really to exercise every power and do every act,"except sell the stock, that the owner of it could do.

The provision as to the dividends of the stock is also peculiar, and emphasizes the intention of the testator. It was provided that the trustees should pay to the persons named in each subdivision of this clause, in equal proportions, an annual sum representing an income of 5 per centum on and from said shares. That was not made dependent upon the shares paying any dividends, nor upon the trustees receiving any income at all from it, but appears to have been an absolute condition imposed upon the trustees upon their accepting the trust. It apparently had no relation to the income that was received from the stock itself. And then, by a further clause, the executors and trustees are-authorized to retain any excess of income derived from said stock over and above the 5 per centum as their compensation for the management of the stock; and the evidence is that the amounts retained by the executors under this clause have been in excess of three-fifths of the dividend, amounting, generally, to three-fourths of such dividend. The effect, therefore, is to confer upon the trustees or executors, in addition to the other evidence of own-ership, the right.to receive and apply to their own use the dividends declared upon the stock. Let us look for a moment at the nature of the property transferred to the trustees. It was stock in an incorporated company. The property that the owner of shares of stock has in such a company is somewhat different from that which the owner of other real or personal property has where the possession of the property is necessary to its beneficial use. The ■owner of such shares of stock has a right to the dividends declared on the stock; the right to vote so as to have a voice in the management of the company and in the selection of its officers, and to determine generally when it is for the interest of the stockholders to dissolve the corporation; and, upon the dissolution of the corporation, the right to receive his proportion of the property of the corporation after payment of its debts. • I can think of no other right or power, except the right to sell, that the owner of shares of stock has, nor any other act that need indicate absolute ownership. And, with the right to sell the stock, these rights comprise the sole and beneficial use that the owner of capital stock of a corporation has by virtue of his ownership. Now, during this period of nearly 15 years, from the death of the testator down to the 1st day of January, 1904, every one of these acts of ownership or right to the beneficial enjoyment of the stock, except the right to sell, was conferred upon the trustees; and the right to sell was given neither to the trustees nor to the persons who were to own the stock on the 1st day of January, 1904. And, in the event that the corporation should be dissolved, then the testator provided that the amount paid as the distributive share of this particular stock-should still be held by the trustees until January 1, 1904, and should be invested by them and retained upon the same conditions that the stock itself was to be retained. Thus, upon no possible contingency, could any of these beneficiaries receive any interest in this stock, except a payment of a sum of money equal to 5 per cent, of its par value, until January 1,1904. Bub for this suspension of the ownership, I think it clear that this would constitute a valid trust of personal property. The laws of this state have placed no restriction upon the owner of personal property creating a trust for any purpose that he desires. There is but one limitation on the power of a person to deal with personal property, and that is contained in the following section of the Revised Statutes:

“ The absolute ownership of personal property shall not be suspended by any limitation or condition whatever for a longer period than during the continuance and until the termination of not more than two lives in being at the date of the instrument containing such limitation or condition, or if such instrument be a will, for not more than two lives in being at the death of the testator.” 1 Rev. St. p. 773, § 1.

And the question here is, whether this provision suspends the absolute ownership of this stock for a period greater than that of two lives in being. The testator died on the 26th day of March, 1889.' The stock was to be delivered to the persons named on January 1, 1904. The period was thus not to determined by lives in being at the time of the death oE the testator, but was for a fixed period of nearly 15 years. IE this were valid for 15 years, it would be equally valid for 1,500 years, which would be practically perpetual: Is there any possible reason why it would be void if fixed to end in 2004, and not void ending in 1904? Clearly not. And the only question therefore, is whether the absolute ownership of this stock'has been by this scheme suspended until 1904. What does the statute mean when it speaks of the absolute ownership of personal property ? Does it mean an abstract right to have it at a future time, but which in the meanwhile excludes every act that the owner of like property can exercise over the property ? Would it mean, in case of a horse, that a person was to call himself the owner, but should have no right to use the horse in any way, either to sell it, make a contract in regard to it, make any disposition of it at all, or have possession of it? I think no one would call himself the absolute owner of the horse under such circumstances; and can a person be said to be absolute owner of shares of stock which do not stand in his name upon the books of the company, on which he cannot vote, on which he can receive no dividends, which he cannot sell, and upon which, if the corporation be dissolved, he is not entitled to receive the shard of the corporate property belonging to the stock ? It seems to me that the statement of the proposition answers it. Just what was meant by the words “ absolute ownership ” was before the general term of the supreme court in the case of Converse v. Kellogg, 7 Barb. 596, and the judge (Allen) there discussed what is meant by absolute ownership with great ability and clearness, and I think, with convincing force. The question that was presented to the court is stated by him as follows:

“ If absolute ownership means nothing more than a vesting of the property, with a right of alienation, without the right of possession, then the restriction upon a division of the estate is not in conflict with the statute. But if the term used in the statute includes not only the property, but the right to actual, immediate, and unconditional possession, then the clause is repugnant to the statute, and is void. For beyond all question the condition contemplates the possession of the personal property by the executors in whom it vested, as incident to their office, until the time fixed for the distribution. Until that time there could be no ownership in severalty by the devisees of any part of the property. All would have an interest in every part, but no one would be entitled to any separate part to the exclusion of the others, and neither any nor all of the devisees would be entitled to the possession of the personal estate to the exclusion of the executors.”

The question presented here could not be stated more clearly. After calling attention to the difference in the-language of the statute in regard to real and personal property, the learned judge continues:

“Personal property is strictly and technically the subject of absolute ownership, while, in theory at least, real property is not, but is merely the subject of an estate. * * * The word 1 absolute ’ was doubtless used as the opposite of 1 conditional,’ and in the same sense as 1 perfect.' It signifies without any condition or incumbrance. To constitute a perfect title to reaj. estate, there must be the union of actual possession, the right of possession, and the. right of property. Can the title to personal property be said be perfect, or the ownership ‘ absolute,’ while one person is the-general owner and another has the possession and the right of possession ? * * * The right of the executors to the possession, and the restraint upon division and actual possession, was an incumbrance upon the ownership of the devisees. ‘Ownership’ is the right by which a thing belongs to an individual to the exclusion of all other persons. In this case, if the condition in restraint of division is valid, there are two classes of owners, one general, the other special, neither having the absolute ownership.”

And the court held :

“That the condition in the will that no division should be made until ten years after the death of the widow suspended the absolute ownership of the personal estate, and that said condition was, therefore, void.’’

Many cases have been cited on the briefs of counsel, and they have all been examined and studied, besides many cases not cited. I must confess that in some of the cases distinctions are taken and arguments used which may be to some extent inconsistent with the views above expressed. These cases, generally, however, apply to legacies of money left by will or legacies of a part or the whole of a residuary estate when the effect was simply to postpone payment of a legacy, but I have not been able to find one that distinctly applies to specific personal property of the character of the property in question. Of the many cases cited, I think none more instructive than the case of Hillyer v. Vandewater, reported in the official reports in 121 N. Y. 681; 31 St. Rep. 671; where it is stated that the opinions are not published because a majority of the judges did not agree in any opinion. The opinions in full are printed in 31 St. Bep. 671. Three opinions appear to have been delivered,—one by Finch, J., who held that a trust was created, but that the absolute ownership of the property vested in the legatees immediately upon the death of the testator ; an opinion by Gray, J., in which he concurred in the result of Judge Finch’s opinion upon the ground that no trust was created, and that the legatees took an estate subject to a power to be exercised by the executors; and one by Earl, J., in which he held that a trust was created, but that such trust violated the section of the Bevised Statutes above cited. In the official reports it is stated that Finch and Gray, JJ., read for affirmance, and Buger, 0. J., and Andrews, J., concurred in result; but Earl, J., read for reversal, with whom Peckham and O’Brien, JJ., concurred. Apparently Judge Finch would have held the bequest void if no trust was created, and Judge Gray would have held the bequest void if a trust was-created, and what Chief Judge Buger and Judge Andrews would have done in either contingency does not appear. The position of Judge Earl and the two judges who agreed with him is not at all uncertain. In Judge Finch’s opinion great stress is laid upon the fact that the ultimate vesting of the fee in the children did not depend upon their living at the end of the 10 years that the property was to remain undistributed, but upon the fact that the trust fund was severed instantly from the general estate of which it was the residue after payment of debts and specified legacies, and the interest and income of that severed residue, less the expense of obtaining it, was to be divided into three equal portions as it accrued, and paid over to the beneficiaries ; that upon the death of any one of the beneficiaries, her share was vested in her heirs or next of kin; that the testatrix made no provision for that event, but left it to be governed by appropriate legal rules, and that the right to one-third of the income and one-third of the property itself which thus would have devolved upon the deceased child’s heirs or next of kin would be a vested estate in such third, freed and discharged from the trust. If that was a proper construction of the will, it is clear that the statute was not violated, for immediately upon the death of one of the children the heirs at law or next of kin became entitled to the possession and absolute ownership of the property. The period thereof during which the ownership of each share was suspended was 10 years, unless sooner terminated by the death of one of the children. How different the facts of this case before us, where upon no contingency can there ever be any disposition of this property until 1904. If one of the persons named should die, the sum fixed to be paid to him as 5 per cent, upon the shares of stock which was ultimately to come to him or his heirs was to be paid to his heirs until the full period had expired, and in that case the persoual representatives or assigns of the person so dying would have no interest in the shares of stock, but the trustees were bound to ascertain, on January 1, 1904, who were then the heirs of the one dying, and transfer the stock to such heirs. The opinion of J udge Earl, stating his construction of the will, which differs materially from that of J udge Finch, says :

“If, during the term, one of the daughters should convey her share in the remainder, the purchaser would take it subject to the trust; and, if either of them should die during the term, her representatives would take her remainder subject to the trust, and the duty of the trustees, who during the term are joint tenants, to divide the estate at the end of the ten years between the persons then entitled to the same, would still remain. There was, therefore, an attempt to create a trust term for ten years, during which time, if the trust is valid, the corpus of the estate is tied up in the hands of the trustees, and rendered inalienable, and its absolute ownership suspended. That such a disposition of the property violates the statute against perpetuities cannot be doubted.”

It seems to me that I can leave this case without further argument, and without the citation of further authorities, upon this quotation from Judge Earl’s opinion, for the result of this clause in the will certainly is to create a trust for over 15 years, during which time, if the trust is valid, the corpus of the estate is tied up in the hands of the trustees, and is rendered inalienable, and its absolute ownership suspended. That such a trust estate is created is clear. Look again for a moment at a provision of the clause in question. The testator gives and beq ueaths his shares of stock to the executors and trustees, in trust “to be managed by them until the first day of January in the year one thousand nine hundred and four, as follows” : One-fourth of such shares in the Steinway Company “to and for the benefit of the five children,” etc. The title is here in express terms given to the trustees to manage the personal property to and for the benefit of the beneficiaries, and what he meant by management of the property is expressed in the thirty-sixth elapse of the will. It is to vote on the shares of the stock, and, in their discretion, to assent to or oppose any reduction or increase of the capital stock, and also, in case of such reduction thereof, or the discontinuance of the corporation being determined upon, to invest the proceeds of his shares in securities deemed good and sufficient by them, and to apply and manage principal and interest of such investments precisely as it was directed to be done with the shares of stock ; thus, as above stated, giving to the trustees the power to do every act that the owner of that property could do, except to sell it; and no act happening prior to the year 1904 could terminate the trust. The death of all the persons named within that period 'would not terminate it, nor would any interest in the stock pass to either their assigns or their personal representatives, but the trustees would be bound to deliver the stock to such persons as should be ascertained to be the heirs of the beneficiaries named, except in the case of Mr. William Steinway, when the stock was to be delivered to certain of his children.

It would be useless for me to discuss any of the other cases cited by counsel. As before stated, they have all been examined, and I do not find anything decided in any of them that is controlling upon this question. I think, therefore, that a trust was created by this clause of the will, and that that trust is void, because it suspends the absolute ownership of the property for a period not measured by that of two lives in being at the death of the testator.

The point is taken that this court has no jurisdiction of this action, but that the same should be left to the surrogate’s court. I think that question is settled in the case of Wager v. Wager. 89 N. Y. 161; and while the court might refuse to take jurisdiction, and send the case to the surrogate’s court, in a case of this importance I think the court should decide the question.

The defendant also claims that the plaintiff is estopped from insisting upon this clause being void, first, because he has accepted and received legacies under the will, and agreed to an increase of the capital stock of the corporation Steinway & Sons of $500,000. These acts undoubtedly would estop him from questioning the validity of the increase or the disposition that was made of the increased stock with his consent. It could not, however, operate to prevent his claiming that the whole trust was void. The receipt of other legacies under the will is not inconsistent with claiming that this trust is void; and, under the trust, the plaintiff had nothing to do with consenting to the increase of stock, as that was clearly vested in the trustees.

Nor do I think that the receipt, which also contains words of release, is conclusive. Under the form of the receipt the executors are only released by the plaintiff from any claim that he might have as heir at law, and not as residuary legatee. The paper, however, is merely a receipt, and is always open to explanations ; and it is clear that neither the executors nor the plaintiff understood when plaintiff signed that paper that it released a claim that this trust was void. It does not appear that the plaintiff received any consideration for such release, there then being paid to him only the amount that he was entitled to as one of the residuary legatees. The plaintiff here does not claim under the trust, and at the same time seek to avoid the trust; he claims that the trust is void, and that the property passes to him as residuary legatee under the will; and I can see no act of his that estops him from asserting such a claim.

The point that the trust is void because the trustees are also the cestuis que trustent is answered by the very case cited to sustain the proposition, Woodward v. James, 115 N. Y. 846, 347; 26 St. Rep. 147, where Judge Finch, who delivered the opinion of the court, says:

“Where, however, the trustee is made beneficiary of the same estate, both in respect to its quality and quantity, the inevitable result is that the equitable is merged in the legal estate, and the latter alone remains.” That “as to her half of the income, the-widow was not trustee, and took what was given to her by a direct legal right, it does not follow that her trust estate in the corpus of the property is in any manner destroyed, or that there is any the less a necessity for its existence. She can be trustee for the heirs, and that trust ranges over the whole estate for the purpose of its management and disposition.”

I shall not further discuss the questions presented, although of great interest, as I think this opinion is now too long. It represents but a small portion of the time that I have spent upon this case, but upon the whole case I am clearly of the opinion that the plaintiff is entitled to the judgment asked for, and judgment is directed accordingly.

Judgment ordered for plaintiff in accordance with the foregoing opinion.


author: Bookstaver, J.

text:
    Lamson Consolidated Store-Service Company, App’lt, v. Michael Conyngham, Resp’t.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    1. Pleading—Corporation.
    A denial, upon information and belief, that plaintiff is a corporation is not an affirmative allegation that it is not a corporation within § 1776 of the Code.
    2. Sale—Rescission.
    A written agreement by the vendor to keep in repair for two years a machine, sold under a prior contract, is not either a warranty or a condition precedent, a breach of which does not entitle the vendee to rescind the first contract, but only gives him an action for damages.
    Appeal from a judgment in favor of defendant for costs, rendered by a justice without a jury. . Wümer & Canfield, for app’lt; Gumbleton & Hottenrotii, for resp’t.
   Bookstaver, J.

In an action by a foreign corporation, the plaintiff need not prove upon the trial the existence of the corporation as alleged in the complaint, unless the answer contains an affirmative allegation that the plaintiff is not a corporation. Code Civ. Proc. § 1776. A denial, upon information and belief, that plaintiff is a corporation, is not such an “affirmative allegation.” Vulcan v. Myers, 58 Hun, 162; 34 St. Rep. 122; Concordia S. & A. Association v. Reed, 93 N. Y. 474; Bengston v. Steamship Co., 31 Hun, 96. By § 1779 of the Code, § 1776 is made to apply to foreign corporations. Vulcan v. Myers, supra. It is not, therefore, incumbent upon plaintiff to prove its corporate existence.

The machine was delivered to and accepted by defendant. According to the terms of the contract of sale, defendant paid down $25, and gave ten notes of $15 each, and one for $20, payable on succeeding months, for the remainder of the purchase price. Two of these $15 notes were paid, and the remainder were not. This action is brought to recover on the remaining eight, amounting to $120 in all. At the time of the delivery of the machine, the agent gave defendant a written agreement to keep the cash register in repair, from ordinary wear and tear, for two years, free of charge. Defendant contends that this agreement was a condition precedent to his performance of the contract, and that, by reason of plaintiff’s failure to keep the machine in repair, he was justified in tendering back the machine, and demanding the return of the payments already made. We cannot concur in this view. The contract was a complete instrument in itself, and plaintiff performed his part by delivering the cash register called for, which defendant accepted. The agreement to keep in repair was not a warranty of the original article, nor was it a condition precedent. Benj. Sales, §§ 561,562; Tipton v. Feitner, 20 N. Y. 423; De Kay v. Bliss, 120 N. Y. 91 ; 30 St. Rep. 820. It was an independent undertaking on the part of the plaintiff, a breach of which did not entitle defendant to rescind the first contract, but gave him an action for damages for the breach. Even if it could be held to be a condition of the first contract, the effect would be the same. It was not a condition precedent, and the breach of a condition subsequent only gives a right of action for damages. It was not necessary to prove the presentation of the notes, as the action is against the maker, and not an endorser. Hills v. Place, 48 N. Y. 520. It is therefore clear that the judgment should have been for plaintiff, less any damages sustained by defendant by reason of any breach by plaintiff of the agreement to keep in repair. No damages for such a breach were proved upon the trial. The judgment must therefore be reversed, and a new trial ordered, with costs to appellant to abide the event.


author: Bischoff, J.

text:
    Henry Nicholsburg, Resp’t, v. Second Avenue Railroad Company, Appl’t.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    Negligence—Contributory.
    Where a sudden call upon plaintiff to adopt one of two courses in the face of danger is caused by the defendant’s negligent act in creating the dangerous situation, a recovery is not unauthorized because the course chosen is not shown to be obviously the wiser and safer one.
    Appeal from a j udgment in favor of plaintiff, rendered by .a justice without a jury.

      Peyson Merrill, for app’lt; Max Bayerdorfer, for resp’t.
   Bischoff, J.

An examination of the record leads to the conclusion that the determination of the justice below is to be supported. From the evidence it appears that the plaintiff was justified in his attempt to cross the track in front of the defendant’s car, there being a sufficient distance between the vehicles to render the act consistent with his duty as imposed by law, in view of the facts testified to with regard to the slow approach of the car. It is not disputed that the driver of the car suddenly caused an acceleration of its speed, and the evidence supports the conclusion that this acceleration was the cause of the accident, and that it was due to a disregard of that care upon the part of the defendant’s servant which was called for by the circumstances. It is claimed, however, that the plaintiff was chargeable with contributory negligence by reason of his failure to drive directly across the track, as was his original intention, but at an accelerated speed, when he observed the sudden impetus given to the car. What he actually did was to turn his vehicle, and endeavor to drive along the track, in front of the car, and away from it,' to enable the driver to lessen its speed in time to avoid a collision ; but the attempt was unsuccessful, and the accident resulted. It might be assumed that by taking a different course the plaintiff could have avoided the injury, but this sudden call upon him to adopt one of two courses in the face of danger was caused by defendant’s negligent act in creating the dangerous situation, and we are not to say that a recovery was unauthorized because the course chosen was not shown to be obviously the wiser and safer of the two. Quill v. N. Y. C. & H. R. Railroad Co., 16 Daly, 313; 32 St. Rep. 612 ; Id., 126 N. Y. 629; Lowery v. Man. Railway Co., 99 N. Y. 158. The judgment should be affirmed, with costs.


text:
    Louis Jaton, Resp’t, v. Brentwood Hotel Company, App’lt.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    Evidence -Conclusions.
    Questions which call, not for the conversations themselves, but for the witness’s conclusion as to the "legal effect of such conversations, are inadmissible.
    Appeal from a judgment in favor of plaintiff. ■

      John W. Blair, for app’lt; Welsh & Daniels, for resp’t.
   Bookstaver, J.

The plaintiff sued for wages claimed to have, beén earned by him as cook in the Austral Hotel, at Brentwood, Long Island, between January 23 and April 7, 1894, and claimed that he worked in that hotel in that capacity during the period specified, which claim is undisputed. It is likewise undisputed that the hotel was owned by the defendant company. But defendant denied it was interested in the management of it at that time. It also denied that plaintiff was employed by any one having authority to speak for the company, and that defendant ever received any benefit from his services, or agreed to pay him therefor. It is uncontradicted that the contract for plaintiff’s services was made by one Stanley H. Wetmore.

Two questions of fact were presented for determination : First. In hiring the plaintiff, did Wetmore con tract for himself or for the company ? And, second, if for the company, had he authority to do so ? From the return we strongly incline to the opinion that the contract of.hiring was made by Wetmore either for himself or for the syndicate of which he was a member, and not for the company ; and the evidence that Wetmore at the time was acting for the company seems to us to be entirely inconclusive. But as, in our judgment, there must be a new trial of this action, it would be improper for us to determine either of these questions on this appeal, as a new trial may develop other facts in relation to both.

Upon the trial, Mr. Wetmore was on his direct examination asked this question: “Mr. Wetmore, from the conversations that you had with Mr. Pinto and Mr. Hart, did they employ you as manager to take charge of the Austral Hotel at Brentwood, Long Island, and authorize you, at any of those conversations, to hire sufficient help to run the same?" And this question: “And, again, I want to know particularly if Mr. Hart, at any of those conversations, informed you whether he was a director of the Brentwood Hotel Company, and authorized to hire you as manager, and authorize you to hire others ?" Both of these questions were objected to as incompetent, and, in the objection to the first, specific attention was called to theffact that it called for a conclusion ; but the court overruled the objection to both questions,'and the witness was permitted to answer them. No argument seems to us necessary to show that these rulings were erroneous. The questions called, not for the conversations themselves, but for the witness’s conclusion as to the legal effect of such conversations. It was one of the vital points to be determined by the court, and not by the judgment of the witness. A number of other questions, entirely irrelevant to the inquiry, were asked by plaintiff’s counsel, and objected to by defendant’s counsel; but the objections were overruled by the court, and the testimony admitted, which it is not now necessary to further discuss. It is impossible for. us to say that these answers did .not have an influence upon the court in arriving at a conclusion, and therefore the judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the event.

“All concur.


author: Bookstaver, J. Giegerich, J.

text:
    James D. Johnson, App’lt, v. Julius Doll, Resp’t.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    1. Lease—Renewal.
    A tenant, who enters into possession under a term for one year, by continuing in possession after its expiration, renews the letting for another year on the same terms.
    8. Principal and agent—Undisclosed.
    An owner of demised premises, let by an agent without disclosing his agency, may sue the tenant for the rent.
    3. Witness—Credibility.
    The fact that a witness made, as agent for plaintiff, the contract sued on, does not discredit his testimony.
    4. Same—Surrender.
    The handing of the keys of the demised premises to a janitress, who has no authority to receive them or a surrender, does not constitute a surrender.
    Appeal from a judgment in favor of defendant.

      Johnston & Johnston, for app’lt; M. I Friedlander, for resp’t.
   Bookstaver, J.

The issues in this action were joined by written complaint and answer. The plaintiff sued for rent of store and first floor of No. 1305 Lexington avenue, in this city, for. the months of February, March, and April, 1894, amounting to the sum of $114.99, under a yearly letting by one Anton Schwarz, plaintiff’s assignor, to the defendant. The answer admitted nonpayment of the rent, and alleged that the plaintiff was not the real party in interest, and that one Emanuel Popper was, and that said Popper was defendant’s landlord, and owner of the premises, and set up as a defense the surrender of the first floor of the premises to Popper, as landlord, and also set up as a counterclaim that Popper owed the defendant the sum of $90 for work, labor, and services performed by the defendant for him. Popper was called as a witness for the plaintiff, and swore that he knew both the defendant and Mr. Schwarz, the owner of the premises, and had been the agent for him, for renting the premises, for 10 or 11 years, and that he communicated that fact to the defendant. He also testified he let the premises in question, consisting of a part of the store and the floor upstairs, at the rate of $18.33 for the store and $20 for the floor, making in all $38.33 a month; that the rent was payable in advance, and that the defendant had not paid for the' months of February, March, and April, 1894; and that this rent amounted to the sum of $114.99. On cross-examination it appeared that the first agreement with the defendant was in 1892, for the store, and that he then hired it for one year, and took possession in April, 1892, and that a few months afterwards he took the floor over the store for $20 a month. The defendant testified that he did not know, and never saw, Schwarz, plaintiff’s assignor, and that Popper never told him that Schwarz was the owner of the house, and that he had never had any business with Schwarz, and never hired the premises from him. He also testified that he hired the flat from month to month, but nowhere claims that he took the store by the month. He also testified he gave the keys to the janitress on the 18th January, when he moved out, but admits he did not give them to Popper. The defendant also called the janitress of the building, who testified that defendant’s brothér'handed her the keys of the flat in the latter part of January, and she took them, and hung them upstairs, in the rooms defendant had just vacated, and a couple of days afterwards she met Mr. Popper, and told him that defendant had moved out, and that Mr. Popper was the agent of Mr. Schwarz. She testified that when she told Popper about the keys he said that he had not authorized her to take the keys from the defendant, and that he expected the defendant to pay rent for the premises. On this state of facts, the court below gave j udgment in favor of the defendant, from which this appeal is taken.

The original agreement having beeh for one year, and the defendant having entered into possession and occupied it for that year, when he continued in possession after the expiration of that year he thereby, ipso facto, renewed the letting for another year, for the same term and under the same conditions as the previous letting. Garrick v. Menut, 41 St. Rep. 468; Ackley v. Westervelt, 86 N. Y. 448 ; Schuyler v. Smith, 51 N. Y. 309 ; Laughran v. Smith, 75 N. Y. 206; Coudert v. Cohen, 118 N. Y. 309; 28 St. Rep. 684. The plaintiff’s witness Popper testified that he was the agent of the owner of the premises, for the letting thereof, and in this he is corroborated by the defendant’s witness the housekeeper. As against this, all that the defendant said was that he never knew Mr. Schwarz, and that Popper had not told him that he was representing Mr. Schwarz, the owner. This did not raise any issue between the parties, except as to the fact of information, and that was wholly immaterial. If Popper did not disclose to the defendant his agency, it in no way prevented the real owner from ratifying the act of his agent, and claiming the rent due him-. But it is strongly .urged that Popper was an interested witness, in that the defendant had a counterclaim against him. As I understood from the return, and from defendant’s counsel on the argument and in his brief, this counterclaim was abandoned on the trial, as it well might have been. There can be no recovery of a debt due from Popper to the defendant, from the plaintiff. He therefore had no pecuniary interest in the result of this trial, and his interest was that of an agent, merely, which, standing alone, would not, in our judgment, warrant the court below in discrediting his testimony, while the act of the janitress did not make her so interested in the result as to warrant the rejection of her testimony. See Howe v. Schweinberg, 4 Misc. 73; 53 St. Rep. 72. We therefore think that, in any possible view of the case, the plaintiff was entitled to recover for the three-months rent of the store, on the undisputed evidence that his assignor was the owner of the premises, and Popper only his agent. Taintor v. Prendergast, 3 Hill, 72; Gubner v. Vick, 6 St. Rep. 5. In Manette v. Simpson, 30 St. Rep. 617, the court said that either principal or agent, in such a case, could sue, in either of their individual names, upon the contract of leasing made by the agent with the defendant, the tenant of the demised premises.

We also think the evidence as to the surrender of the flat clearly insufficient. The mere giving up the keys, even to the landlord, has been held not sufficient to constitute a surrender. Thomas v. Nelson, 69 N. Y. 118; Lucy v. Wilkins, 33 Minn. 441. Much less can the handing of them to a janitress, who is not shown to have any authority to receive them or a surrender, be considered a surrender. There was no attempt to show any surrender of the store at any time.

The judgment should therefore be reversed, and a new trial ordered, with costs to the appellant. Bischoff, J., concurs.

Giegerich, J.

(concurring). The only possible theory upon which the verdict of the court below can be sustained is that both the agent and the janitress were interested witnesses; but, assuming—not conceding—such to be the fact, their testimony, being uncontradicted and unimpeached, could not be disregarded. In the case of Lomer v. Meeker, 25 N. Y. 861, the action was upon a promissory note ; and the payee thereof testified to the defense of usury, which was set up by the answer. The witness was not impeached or contradicted, and the defendants moved that the complaint be dismissed on the ground that the proof showed that the note had been discounted at an usurious rate. This motion was denied, and the defendants excepted. The case was then submitted to the jury, who found a verdict in favor of the plaintiff. The judgment thereon having been affirmed at general term, the defendants appealed to the court of appeals, where the judgment was reversed. Smith, J., who spoke for the court, said :

“ The positive testimony of an unimpeached, 'uncontradicted witness cannot be disregarded by court or jury arbitrarily or capriciously. They are bound to believe, for judicial purposes, such testimony; and it would, in an instance like this, be the clear duty of the court to set aside the verdict of a jury, founded on a disbelief of clear, uncoutradicted, and undisputed evidence.”

This ruling was followed in Kelly v. Burroughs, 102 N. Y. 93; 1 St. Rep. 161, where it was held that a verdict may be directed whqre the only testimony to sustain it is that of the person requesting the verdict, if the same is uncontradicted, and there exists no circumstance from which an inference against the fact so established can be drawn. The doctrine of this case has also been followed in Dwight v. Germania Life Insurance Co., 103 N. Y. 341; 3 St. Rep. 115, and Plyer v. German Amer. Insurance Co., 121 N. Y. 689; 31 St. Rep. 836. From a consideration of the cases cited, and other kindred ones, they seem to me to establish the rule that the positive testimony of a witness, though interested in the result of the litigation, cannot be disregarded, if the same is uncontradicted, and if there exists no circumstance from which an inference against the fact testified to by him can be drawn. There were no facts or circumstances proved on the trial which bring the case at bar within this exception. I therefore concur in the reasoning and conclusion as expressed in the learned opinion of Judge Bookstaver.


text:
    James Simpson et al., Resp’ts, v. Marie Masson, App’lt.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    1. Lease—From month to month.
    The statement of a landlord that he would give due notice to quit, does not change the character of a tenancy from month to month.
    2. Same.
    Due notice is five days’ notice.
    3. Same—Proof of service.
    An affidavit of service of notice to quit need not be attached to the petition in summary proceedings, but service of such notice may be proved by common-law evidence.
    4. Same—Who mat make service.
    Such notice need not be served by a marshal or person deputized by the justice, but may be served by any person.
    5. Same—Service of original.
    Such service may be made by delivery of the original.
    6. Appeal—Briefs.
    A point in a brief as to the admission and exclusion of evidence, which merely refers to certain pages of testimony without stating what questions were asked or answers excluded, is too indefinite to raise any question.
    Appeal from a final order in summary proceedings in favor of plaintiff.

      Nathan Lewis, for app’lt; Arthur D. Williams, for resp’ts.
   Bookstaver, J.

landlords commenced summary proceedings to recover the possession of certain premises described in the petition, alleging that the tenant was a monthly tenant. The answer denied a monthly hiring, and alleged that the hiring was not by the month, but that the landlords were to give six months’ notice before they would take possession of the place. The appellant strenuously contends that she, having an established business, would not, in the nature of things, be content to hire a place from month to month. But the written lease introduced in evidence by the landlords shows beyond controversy that the first hiring by the tenant in April, 1890, was for the term of fane month only, for it expressly says that the hiring was “for the term of one month, to commence on the 1st day of May, 1890, and end on the 1st day of June, 1890, and from month to month only thereafter, at the monthly rent,” etc. There is not a particle of evidence in the case that the tenant at any time thereafter sought or procured .any change of the terms of the first agreement until May, 1894. This fact of itself overcomes the force of appellant’s contention. It shows that, whatever others might have wished in such case, she was content with a monthly hiring. But she contends that a new agreement was made in May, 1894, and testifies that she had a conversation with the landlords’ collecting agent relative to the length of time she could continue to occupy the premises, as she had heard that the landlords intended tearing them down and rebuilding, and the agent said he would ascertain and communicate with her; and that thereafter he came back and stated to the defendant that the landlords would give her six months’ notice before they would take possession of the place. And in this latter statement she is to some extent corroborated by a witness produced by her. The landlords’ witness Eoss testified that the tenant “told me in May,' 1894, that she was afraid they would pull down the building, and she would have to look for another house; that he said he didn’t know anything about it, but that he would ascertain; that he saw Mr. McCormick, who said that there was a prospect of them building this year, and, if they should, they would know six months beforehand, and, if they did, they would give the tenant due notice.” This raised a direct conflict of evidence, and it was within the province of the judge who had charge of the proceedings to determine where the truth lay; and from an examination of all the testimony on this point we think that his decision was correct, and that, instead of the landlords’ agent promising to give six months’ notice of the termination, he only promised to give due notice. It appears from the evidence that on September 21, 1894, Mr. McCormick the landlords’ financial agent called upon the tenant, and told her that the landlords wanted the premises from the11st of October. She did not vacate, and upon October 23d a notice to quit was served upon her, and these proceedings were thereafter duly instituted. The tenancy, as found by the judge on quite sufficient evidence, was from month to month. The statement that the landlords would give due notice did not change its character. Chapter 357, Laws 1889, amending chapter 303, Laws 1882, provides that at least five days’ notice to quit shall be given to a monthly tenant. Due notice is therefore five days’ .notice. The notice was served upon October 23d, demanding possession of the premises on November 1st, thereby eight days’ notice instead of the five required by law. Besides this, the tenant had been informed of the landlords’ wishes a month before, but refused to comply with them. The cases cited by appellant were mostly decided before the enactment of chapter 303, Laws 1882. Man. Life Insurance Co. v. Gosford, 3 Misc. Rep. 509; 52 St. Rep. 419, is not in point. Hoffman v. Van Allen, 51 St. Rep. 603, is clearly distinguishable in that the tenant failed to show that the letting was for a term of one month, as was the case in these proceedings.

It is objected that the justice erred in permitting the landlords to put in oral proof of the service of the notice to quit, there being no affidavit of service attached to the papers. We can find no provision of law requiring an affidavit of service of such a notice to be attached to the petition, and it was held in People v. Walsh, 13 Wkly. Dig. 440, and also in Posson v. Dean, 8 Civ. Proc. R. 177, which will be more particularly noticed hereafter, that such an' affidavit was not evidence, and that the service of such a notice had to be proved by competent common-law evidence. The oral proof was therefore not only properly admitted, but was essential to the proof of the landlords’ case.

It is further objected that the length of notice was not sufficient, and it was argued that the tenancy was one at will, and required 30 days’ notice. But, as before shown, it was clearly a tenancy from, month to month, and was terminable on five days’ notice. It is idle to contend that six months was required under the justice’s finding.

Appellant also contends that there was no proof of service on the tenant of the five-days notice as required by the statute. There is some confusion in the testimony as to whether the five-days’ notice that was served was signed by James Simpson only or by Simpson, Crawford & Simpson, and also whether the original or a copy was served upon the tenant. But we think there is quite sufficient proof in the case to warrant the justice in finding, as he did, that a proper notice of five days was served upon the tenant, and that it was duly signed by the landlords, Simpson, Crawford & Simpson. It is true that two papers were produced before the justice, but he had the right, and it was his duty, upon the evidence, °to determine which was served.

It is further objected to the notice that if any paper was served signed by Sitnpson, Crawford & Simpson, the landlords, it was the original, and not a copy and was therefore void; and Posson v. Dean, supra, is cited in support of this contention. But that case only determined that where the three-days’ notice of demand for rent was required it had to be made by serving a copy, and not the original. The five-days’ notice in the case of a monthly tenancy is under an entirely different provision of law, and we cannot conceive how the tenant could have been in any way injured or misled by the service upon her of the original, if the original was served instead of a copy. Even in the case of a three-days’ notice of demand of rent, we very much doubt whether the decision'in Posson v. Dean is correct. Section 2231, relied upon in support of the position, merely provides for the service of the three-days’' notice as prescribed by section 2240 for the service of a precept; that is, it relates to the time and manner of service, rather than to the thing to be served, and surely is a wide difference between a notice and a precept. There can be but one original of a single precept, while there may be many copies of a notice, and, in the sense required in these sections, we think the original itself may be regarded as such copy. At any rate, the tendency of the courts of late years has been to disregard mere technicalities, where it is evident that no harm could have arisen by reason of their omission.

A further objection is made to the service of the five-days notice in that it was not served by either the landlords or any agent of theirs. It is, however, clear from the testimony that it was served by some one having authority from the landlord, which certainly makes him an agent within the meaning of the statute. What one does by another he does himself. The contention that this notice to quit must be served by a marshal or a person duly deputized or empowered by the justice to do so, is futile. The service of this notice was not in any way a court proceeding, nor subject to the regulations in regard to district courts. The act of 1889, providing that the notice shall be served in the same manner as a summons, relates to the way in which and the person upon which the notice is served, and not to the person who shall serve it.

The point made by appellant’s counsel on his brief as to the admission and exclusion of evidence, is altogether too indefinite and uncertain, especially in view of the fact that he did not argue any of them orally on this appeal. It merely refers to certain pages of the testimony, without stating what questions were asked or answers, excluded, or any reason for any error in respect to any of them. We, however, have examined the record carefully, and find that the references in the brief to some of the pages must be wholly inaccurate,, as there are no exceptions at all on such pages. The question, “Did you make any agreement as to the renting of the premises ?” was improperly admitted, but the subsequent testimony, showing what was said, and the introduction of the agreement, sufficiently cured the error. The admission of this written agreement was also objected to on the ground that the allegation in the precept was that the rent was from May to October, 1894, and was immaterial. The paper was evidence of the original agreement to lease, and also that the letting was from month to month thereafter. It was therefore material to show the character of the tenancy at its inception, which continued down to the time these proceedings were brought, as determined by the justice. McCormick, the landlords’ agent, was asked whether he took care of these proceedings for the plaintiffs, and defendant excepted to its exclusion. We think it was immaterial, and it has not been pointed out in what way it was material, or how it could have injured the tenant.

The motions for the dismissal of the proceeding at the close of the landlords’ case, and for an order in tenant’s favor at the close of the testimony, were properly denied, as we have before shown. The landlords made out a prima facie case, and the tenant’s testimony raised a conflict of evidence, which it was the province of the justice to determine, and we are fully satisfied that his determination was correct. The final order should therefore be affirmed, with costs.

All concur.


text:
    Mayor, Aldermen and Commonalty of the City of New York, App’lt, v. Emil Roller, Resp’t.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    Witness—Cboss-examination.
    A party is not bound by the answers of a witness elicited upon cross-examination, when the evidence so adduced is relevant to a material issue.
    Appeal from a judgment in favor of defendant, rendered by the justice without a jury.

      Robert C. Taylor, for app’lt; Joseph I. Green, for resp’t.
   Bischoff, J.

This action was brought to recover a penalty alleged to have been incurred by defendant under section 153 of chapter 661 of the laws of 1893, whereby an individual who practices medicine without registration and qualification as required is made liable to the penalty of $50 for each such offense, the amount to be recovered by a duly-constituted medical society of •the county in an action brought in the name of the county. The ground of this appeal is that certain evidence was erroneously excluded when offered by the plaintiff in rebuttal. The plaintiff es.tablished a prima facie case against the defendant under the statute, and a motion to dismiss the complaint was made when plaintiff rested, and was properly denied. Defendant was sworn as a witness in his own behalf, and upon cross-examination testified, ■substantially, that he had never practiced medicine, in answer to categorical questions asked by plaintiff’s counsel. In rebuttal, the plaintiff called one Hahn, a former clerk of the defendant, and .his testimony, in contradiction of the defendant’s statements referred to, was sought to be elicited, but was excluded, under exception, upon the ground that such testimony had reference merely to collateral matter brought out by the plaintiff.

The ruling was obviously erroneous. The fact that defendant was not a registered physician, as required by the statute, was admitted by the answer, and the sole point of the litigation necessarily was directed to the fact of his having actually practiced medicine. It would be difficult to conceive of a case to which an is•sue was more strictly material than was that upon which questions were here excluded as dealing with collateral matter. Citation of authority for the proposition that a party is not bound by the answers of a witness elicited upon cross-examination when the evidence so adduced is relevant to a material issue seems hardly called for, but reference may be had to Andrews v. Newton, 3 N. Y. Wkly. Dig. 507; Bok v. Vincent, 12 Abb. Prac. 137; Van Tassel v. N. Y. L. E. & W. Railroad Co., 1 Misc. Rep. 299; 48 St. Rep. 767; Tayl. Ev. §§ 1438, 1439.

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

All concur.


text:
    Edward L. Purdy, Resp’t, v. Nova Scotia Midland Railway and Iron Company, App’lt.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    1. Contbact—Quantum mebuit.
    An action to recover upon a quantum meruit for the work actually done and the materials actually furnished, will lie against one who has waived or prevented a full performance of an express contract for services by the other of the contracting parties.

      2. Same.
    In an action for services in engraving bonds, plaintiff may recover costs of making plate without delivery of plates delivering plate to defendant.
    Appeal from a judgment of the city court, affirming a judgment entered on a verdict in favor of plaintiff, and an order denying a motion for a new trial.

      Henry C. Andrews, for app’lt; Charles A. B. Pratt, for resp’t.
   Bischoff, J.

An action to recover upon a quantum meruit for the work actually done, and the materials actually furnished, will lie against one who has waived or prevented full performance of an express contract for services by the other of the contracting parties. Clark v. Mayor, 4 N. Y. 338 ; Jones v. Judd, Id. 411; Niblo v. Binsse, 3 Abb. Dec. 375; Whelan v. Ansonia Clock Co., 97 N. Y. 293. In such an action, proof of the express contract is relevant and material as bearing on the measure of damages. Fells v. Vestvali, *41 N. Y. 152 ; Ludlow v. Dole, 62 N. Y. 617. The proof, therefore, does not necessarily change the cause of action. The plaintiff sued, as the assignee of the New York BankNote Company, to recover the fair and reasonable value of services rendered and materials furnished at the instance and request of the defendant in and about the engraving and supply of certain bonds. Besides a general denial, the defense was that, pursuant to the terms of the contract under which it was to be done, the plaintiff’s assignor was required to secure th'e approval of the work by a committee of the New York Stock Exchange, and that in that respect the plaintiff’s assignor had failed. Upon the trial it was conceded that. the plaintiff’s assignor and the defendant had entered into a contract whereby the former was “to engrave on steel, and print, bind, and number, one thousand bonds, for the sum of one thousand and fifty dollars,” and to “engrave a stock-certificate plate on steel,” and print, bind, and number books of five thousand certificates therefrom, for the sum of twenty-five dollars each.” No question arose with regard to the plate for the stock certificates, and the supply of such certificates, these having been delivered to and accepted and paid for by the defendant.

For the plaintiff, it appeared that his assignor had caused the plate for the bonds to be engraved, the fair and reasonable value •of which work was $750, and that such assignor had likewise delivered to the defendant 150 bonds printed from the plate, the fair and reasonable value of which was 30 cents per copy. The aggregate sum, with interest, was the extent of the plaintiff’s recovery. It further appeared for the plaintiff that the remaining bonds were not printed and delivered at the request and direction of the defendant. The trial court properly declined to charge, at defendant’s request, that plaintiff’s recovery should be limited to $45, the cost merely of the printing of 150 bonds, since the preliminary cost of engraving the plate from which the bonds were printed necessarily constituted a part of the value of the work performed by the plaintiff’s assignor.- The several cases cited by the defendant’s counsel in support of the proposition that delivery of the plate was necessary to the plaintiff’s right of recovery for the work of the engraving have reference only to contracts for the sale and delivery of chattels, while this was an action to recover for services performed and materials actually delivered. The contract in part performance of which the services sued for were rendered was constituted of the written proposal of the plaintiff’s assignor, on the one hand, and of the defendant’s oral acceptance on the other. A conflict of evidence ensued respecting the terms of such acceptance. Richmond, the president of, and a witness for, the defendant, testified that it was agreed that before the defendant should be required to accept the bonds the plaintiff’s assignor would secure the approval thereof by the stock exchange committee, and that the contract was made with Gray, the secretary of the plaintiff’s assignor. Gray, also called as a witness for the defendant, corroborated Richmond. Kendall, however, the president of' the plaintiff’s assignor, and a witness for the plaintiff, testified that the contract was made by Richmond, acting for the defendant, with himself, acting for the bank-note company, and that the procurement of the approval above mentioned was neither mentioned nor acceded to. Upon this conflict it is manifest from their verdict that the jury determined the fact for the plaintiff, and, upon the question of preponderence of the evidence, the judgment of affirmance by the court below is conclusive upon us. Paige v. Chedsey, 4 Misc. Rep. 183; 53 St. Rep. 190 ; Meyers v. Cohn, 4 Misc. Rep. 185; 53 St. Rep. 223. The statement, on the letter head of the plaintiff’s assignor upon which its proposal was written, that “ securities engraved by this company are accepted by the New York, London, Frankfort, and Berlin Stock Exchanges, and the Paris Bourse,” obviously was no part of the proposal, nor was it claimed in this action that the defendant was thereby deceived into the contract. Furthermore, there was evidence tending to show that the statement was true, but that the approval by the stock exchange committee of the work agreed to be done for the defendant was prevented by the latter’s reduction of the number of bonds as first contracted for to less than 500 copies, such being the number requisite for approval. Exceptions not specifically noticed by us are not urged upon this appeal, and upon examination prove to be without merit. The judgment of the court below should be affirmed, with costs.

All concur.


author: Giegerich, J.

text:
    George H. Jones, Resp’t, v. Theodore Palumbo, App’lt.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    Appeal—Finding.
    A finding by the trial justice, upon conflicting evidence, will not be disturbed on appeal.
    Appeal from a judgment in favor of plaintiff, rendered by the justice without a jury.

      Scott Lord, for app’lt; Jacob Levy, for resp’t.
   Giegerich, J.

The defendant seeks a reversal of the judgment solely upon the facts, there being no error of law charged. The main question litigated upon the trial was whether the work was done for the defendant, or for the partnership of which he claims to have been a membpr. The plaintiff testified that about July, 1892, the defendant ordered the work to be done; and that the services and materials were rendered and furnished during a period from July, 1892, to February, 1893; and that the bill amounted to $170.77, upon which $51 was paid on account, leaving a balance due of $119.77. The plaintiff further testified that, after the work was completed, the defendant came to his office; and after some conversation, in the presence of Mr. Lewis, his bookkeeper, to the effect that he did not know anything about the defendant having a partner, and that he would not accept him, and after defendant had made a payment of $51 on account, the plaintiff caused his bookkeeper to make out a bill addressed to Palumbo & Jordano, at the request of the defendant (which bill defendant offered in evidence), and that the defendant promised to pay the balance of the bill within a short space of time. The plaintiff’s testimony was corroborated by his bookkeeper, Mr. Alexander Lewis. The defendant was the only witness for the defense. He testified that one Yicinzo Jordano was his partner, and joint-owner of the premises upon which the work was done from July, 1893, to March, 1894; that they sold such premises on May 1st; that they each gave directions as to the work; that he never requested plaintiff’s bookkeeper to make out*a bill in the name of the firm ; that he made the payment on account upon February, 17, 1893 ; that he received the said bill o.ne or two days after its date,—February 17, 1893. He also testified that he was in plaintiff’s office on this date, and said to him:

“ ‘Mr. Jones, the house, I suppose, is sold, because we signed an agreement. I am a partner in that house, and I will give you my partner’s address. I want to pay my share, because I don't want trouble.’ And he agreed to take my share $51 and some cents, and gave a receipt for that.”

It will be observed that the amount of the bill was originally $170.77, and that defendant was in error when he testified his share amounted to the sum above stated. It is also manifest, if the testimony of the defendant that from July, 1893, to March, 1894, he was a partner of and joint owner with Jordano of said premises, is true, that the liability of the defendant is conclusively established, as the bill in question shows that the work was commenced on October 7, 1892, and completed on February 16, 1893 ; but, if not true, then that fact was undoubtedly considered in connection with the other facts and circumstances of the case by the trial justice, who had the advantage of observing the manner of the defendant while upon the witness stand, was probably influenced by these circumstances in measuring the degree of credibility which should be attributed to his testimony, McLaughlin v. O'Toole, 1 Misc. Rep. 172, 173; 48 St. Rep. 682, and he was justified in finding (as we assume from the judgment he did find) that the work was done solely upon the defendant’s individual account and liability. As the determination of these questions is peculiarly within the province of the justice, they are therefore not the subject of review here, the elements justifying such review not appearing in this case. Hynes v. Hickey, 4 Misc. Rep. 522; 54 St. Rep. 120; Weiss v. Strauss, 39 St. Rep. 78.

For the reasons stated, we think the judgment should be affirmed, with costs.

All concur.