text:
    The Delaware, Lackawanna & Western Railroad Co., App’lt, v. The City of Buffalo et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    Railroad—Right to cross city street—Assert of city carrot be revoked.
    The right of a railroad to cross a city street is conferred by the legislature subject to the assent of the city, and that assent being obtained, the right becomes an absolute one, conferred by the legislature and not by the city, and it cannot be revoked by any act of the latter.
    Appeal by the plaintiff from a judgment entered on the findings and decision of the court at special term, dismissing the plaintiff’s complaint and vacating an injunction pendente lite.

      J. G. Milburn, for app’lt; W. F. Mackey, for resp’ts.
   Dwight, P. J.

The action was to restrain the defendants from removing an abutment and a pier of the bridge which carried the tracks of the plaintiff’s railroad across Main street in the northern part of the city of Buffalo, otherwise spoken of in the case as North Buffalo and Buffalo Plains. The road was located and constructed in the years 1880-1882 by the New York, Lackawanna & Western Bail way Company, a corporation duly organized under the general railroad act of this state, and in 1882 was leased by that company to the plaintiff, which has ever since been in possession of and operating the same. In October, 1881, the plaintiff’s lessor obtained the assent of the city of Buffalo, by resolution of the common council thereof, duly adopted and approved, to the construction of its road on its located route across many streets of the city, which are named in the resolution, including Main street. The resolution provided, among other things, that the crossing of Main street should be lay bridge, leaving a clear roadway underneath of not less than twelve feet in height and twenty-eight feet wide in the clear; it also contained the provision that all crossings should be built subject to the approval of the city engineer.

Under the consent thus given the plaintiff’s lessor was, in December, 1881, proceeding to construct its crossing over Main street, when the city engineer objected that the minimum width of twenty-eight feet of roadway permitted by the resolution of the common council was not sufficient to accommodate the travel’ on the street, and he communicated his objection to the engineer of the railroad company and to the common council of the city. Thereupon the common council, by resolution of December 12, 1881, instructed the city engineer “ to notify the company that they must put a span at that point of not less than sixty-six feet wide,” and on the 16th day of January, 1882, resolved “ that this council will not receive, entertain or act upon any petition or request of said railroad company, until the agents of said company pledge themselves to' cross Main street at Buffalo Plains with a span of the full width of the street.” These resolutions were communicated to the engineer and other officials of the railroad company, and thereafter in January, 1882, a conference was held between various officials of the city and of the railroad company, respectively, including the engineers of both. At that conference it was proposed on the part of the city, and either by or with the assent of the city engineer, that (in the language of the finding) the company should modify its plans for such crossing so that the same should be constructed as it was afterwards actually constructed ; * * * and that said railway did thereupon proceed to construct such crossing in accordance with the plans so modified, with the approval of the city engineer.” The court also made a separate finding as follows: “ That the said crossing over Main street was so located and constructed with the approval of the city engineer of such city.”

Main street at the point of the crossing in question is ninety-nine feet wide. The actual construction of the bridge, according to the modified plans adopted as above mentioned, embraced a pier seven feet thick, of which the west face is twenty-two feet inside of the easterly line of the street, and an abutment backed by a solid embankment, the east face of which is thirty four feet inside of the westerly line of the street. This left two openings for roadway and sidewalk, respectively, one of forty-four feet, and the other of fifteen feet in width.

It was upon findings which embraced the foregoing facts that the learned court at special term based its conclusions of law, which resulted in the dismissal of the plaintiff’s complaint, to the effect: (1) That the common council of Buffalo had no authority under its charter to grant permission to the plaintiff or' its lessor to erect or maintain the abutment and pier, or any other permanent structures, in Main street, upon which it might erect a bridge; and (2) that such permission as was granted to plaintiff’s lessor by resolution of October 10, 1881, was rescinded by the resolutions above mentioned of December 12, 1881, and January 16, 1882.

We do not think that either of these conclusions of law is well founded. It is the first of them to which the argument of the opinion below is chiefly addressed, and which is mainly relied upon by counsel for the respondent in support of the judgment. Both of these arguments seem to proceed upon the assumption that the power to authorize the crossing of the streets of a city by the tracks of a railroad rests with the municipality itself; that the right to make such a crossing is conferred by the city, and that the railroad company can acquire no greater right than the city can confer. But this is not the case. It is the legislature, alone, that has the power to confer such rights in the streets of cities as in the other highways of the state, and over them, so far as public rights alone are concerned, the control of the legislature is supreme. The People v. Kerr, 27 N. Y., 188; Story v. N. Y. El. R. R. Co., 90 id., 122. Accordingly the right to construct its road across any city street which the route of its. road may intersect is conferred by the general railroad act upon every railroad company duly organized under its provisions. The provision in question is as follows: “ Every corporation formed under this act shall * * * have power to construct their road across * * * any * * * street * * * which the route of its road shall intersect * * * - but the company shall restore the * * * street * * * thus intersected * * * to its former state, or to such state as not unnecessarily to have impaired its usefulness. * * * Nothing in this act contained shall be construed to authorize * * *■ the construction of any railroad not already located, * * *■ across any street in any city without the assent of the corporation of such city.” Laws of 1850, chap. 140, § 28, sub. 5. There was also in the special act of 1870, for the revision of the charter of Buffalo, provision for the mode in which the above mentioned assent of the corporation should be given, as follows: “ The common council, by a vote of two-thirds of all its members elected, may permit the track of a railroad to be laid in, along or across any street or public ground.”

Thus it appears that the plaintiff’s lessor did not derive its right to cross Main street with its tracks from the city of Buffalo, but from the state of New York; and that it took this right subject, only to the condition of obtaining the assent of the city of Buffalo, by the vote of two-thirds of its common council, and to the duty of restoring the street to a state of usefulness not unnecessarily impaired.

In the cases where the rule has been so strongly enforced that a municipality has no authority to create or permit a permanent obstruction to the use of its streets or highways, there will be found to have been an absence of legislation conferring such authority. Such are the numerous cases, of which Callanan v. Gilman, 107 N. Y., 365; 12 St. Rep., 21, and Cohen v. The Mayor, 113 N. Y., 532; 23 St. Rep., 509, are late and prominent examples, in which it has been held that a municipality has no authority to create or permit a nuisance and that any permanent or habitual obstruction of a public street is a public nuisance. But no one will contend that any obstruction to a highway authorized by the legislature is a nuisance, nor that the legislature may not authorize such obstruction, where no private interest is invaded, even to the extent of compelling the discontinuance of the use of the highway as such. People v. Kerr, supra.

These considerations are important as bearing upon both of the conclusions of law upon which, as we have seen, the judgment of the special term was based. Because, first, the right being conferred by act of the legislature, is subject to no limitations except those prescribed by that act; and, second, being conferred, so far as the city is concerned, only on condition of the consent of the common council, it became absolute when that consent was given, and was not subject to revocation by any authority short of that by which it was conferred. The legislature confers th¿ right subject to the assent of the city; that assent being obtained, the right becomes an absolute one, conferred by the legislature and not by the city, and it cannot be revoked by any act of the latter.

But, further, the language of the provision of the general railroad act which prescribes the manner in which the right shall be exercised necessarily implies that the public use of the highway crossed may be to some extent obstructed, and its usefulness, to some extent, impaired. The requirement is that the street shall be restored to its former state, “ or to such state as not unnecessarily to have impaired its usefulness.” It is not, therefore, every •obstruction to the easement of the local public in the street by the construction of a railroad across it which becomes, ipso facto, a public nuisance; but only such an obstruction as is unnecessary to the exercise of the more important easement of the general public in the railroad to be constructed. People v. The N. Y. C. & H. R. R. R. Co., 74 N. Y., 802; People v. N. Y., N. H. & H. R. R. Co., 89 id., 266; Post v. W. S. & B. R. R. Co., 123 N. Y., 580; 34 St. Rep., 484.

As we have seen from the findings of the court at special term, the consent of the city was originally given to the construction , of the crossing in question by a bridge, leaving a clear roadway beneath it of not less than twenty-eight feet in width, by a resolution of the common council, which further prescribed that the crossing should be built subject to the approval of the city engineer. This officer having objected that the proposed width of roadway of twenty-eight feet was insufficient, the common council adopted two other resolutions which, while not purporting to revoke the consent already given, successively proposed two other plans for the construction of the bridge. But it was subsequent to the adoption of both of these resolutions that the plan actually and finally employed was agreed upon between the officers of the railroad company and “ the city engineer and the street committee of the common council of Buffalo,” upon which plan the construction of the bridge was actually proceeded with and completed as it stands to-day; and the court expressly finds that this construction of the bridge was with the approval of the city engineer.

We think the only question of fact which was open for litigation in this case was whether the bridge as constructed did unnecessarily impair the usefulness of the highway over which it passed. That question was not foreclosed by the consent of the common council. The two requirements of the statute are independent of each other. There must be not only the consent of the city to a crossing, but a construction of the crossing in such manner as not unnecessarily to impair the usefulness of the highway.

This question was not tried, and there was no finding on the subject.

We think there was error in the conclusions of law at special term, for which the judgment of that court should be reversed and a new trial granted.

Judgment reversed and a new trial granted, with costs of this appeal to abide the final award of costs.

Macomber and Lewis, JJ., concur.


source: Caselaw Access Project

author: Dwight, P. J.

license: Public Domain

text:
    Frederick Palmer, App'lt, v. Mary L. Culbertson et al., Impl’d, Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    Partition—Want of interest in plaintiff.
    In an action of partition, the answer alleged that a grant of land by the ancestor of the parties to plaintiff’s wife was made upon the understanding and agreement between the grantor, grantee and plaintiff that such conveyance should be accepted as an advancement and extinguishment of any claim of plaintiff to an interest in the grantor’s estate as heir at law. The referee so found on sufficient evidence, and held that at the commencement of the action plaintiff had no interest in or title to the land in question, and dismissed the complaint. Held, no error.
    Appeal by the plaintiff from a judgment entered in Livingston county on the report of a referee, dismissing his complaint.

      E. P. Coyne, for app’lt; L. O. Reed, for resp’ts.
   Dwight, P. J.

The action was in partition, between the four heirs-at-law of one Augustus Palmer, deceased, for the division of the real estate, consisting of 159 acres of land, of which he died seized. The facts necessary to the maintenance of the action, in the first instance, were all admitted. It was also admitted that about four years before his death the deceased conveyed to the defendant Hattie A. Palmer, the wife of the plaintiff, who was a son of the deceased, a piece of land of 59 acres, being a part of 218 acres which he then owned and occupied as one farm, the remainder of; which was the 159 acres of which he died seized. Of the 59 acres, three acres were conveyed to the grantee absolutely, and the remaining 56 acres subject to the use and occupation of the grantor during his life. The only question in the case is one of pure fact, and is presented by the answer to the effect that the 59 acres was conveyed, as above, to the wife of the plaintiff, upon the understanding and agreement between the grantor, the grantee and the plaintiff that such conveyance to the wife of the latter should be accepted by him as an advancement and by way of satisfaction and extinguishment of any claim to or interest in his father’s estate which in any event he might have as one of his heirs-at-law ; and that such conveyance was so made by the deceased and accepted by the plaintiff and his wife, and for no other consideration than the agreement above mentioned.

The learned and careful referee found the fact in accordance with this allegation of the answer, and thereupon based his conclusion of law to the effect that the plaintiff, at the time of the' commencement of the action, had no title to or interest in any portion of the 159 acres of land, and therefore that his complaint should be dismissed. The attempt to point out a variance or discrepancy between the allegation of the .answer and the finding of the referee is mere verbal criticism; the two are in essential accord.

A careful review of the testimony leads us to the same conclusion with the referee upon the question of fact, and the conclusion ■of law and dismissal of the complaint necessarily follow.

The judgment appealed from must be affirmed.

Judgment appealed from affirmed, with costs.

Macomber and Lewis, JJ., concur.


author: Van Wyck, J.

text:
    Oscar Compton, Resp’t, v. John D. Heissenbuttel et al., App’lts.

      (City Court of New York, General Term,

      Filed October 24, 1892.)

    1. Contbact—Breach—Damages.
    Under a contract of affreightment defendants agreed to pay a certain amount for freight and to pay the wharf owner or lessee all wharfage at place of consignment. Held, that for a breach in failing to pay wharfage charges, plaintiff could recover the amount paid to regain possession of the vessel when seized in proceedings brought by the wharfinger, and the damages suffered by its detention. ,
    3. Same—Limitation.
    Plaintiff’s cause of action did not arise until he paid the wharfage and other expenses to regain possession of the boat and the statute did not begin to run until that time.
    Appeal from judgment entered upon a verdict for plaintiff. Action to recover the amount paid by plaintiff to release his canal boat from proceedings in rem brought against it by a wharfinger for nonpayment of wharfage, and damages for its detention by such proceedings. The facts fully appear in the former report of the case in 88 St Rep., 458.

      Hyland & Zabriskie, for resp’t; Putney, Bishop & Slade, for app’lts.
   Van Wyck, J.

Upon the affirmance of the judgment entered on the verdict returned at the first trial of this action' this court said, “By their express agreementsto pay all wharfage the defendí ants assumed, so far as the plaintiff is concerned, a primary obligation, to which the liability of the plaintiff or his boat is secondary, and although as to the wharfinger the boat itself can be held liable,” still as between plaintiff and defendants the former is liable as surety and the latter as principal. See 13 N. Y. Supp., 594, and 38 St. Rep., 458. And our appellate authority, in deciding the appeal from this judgment of affirmance, said, “ Defendants insist that the amount of wharfage was payable from them to the plaintiff, and plaintiff contends that it was payable from defendants to the wharf owner. Had the defendants’ engagement been to pay the amount of wharfage to the wharf owner, thus satisfying the latter’s lien upon the boat, then the non-performance of that engagement would have imposed upon the defendants a liability towards the plaintiff to recompense him for the loss of the use of his boat while it was necessarily in the custody of the United States marshal under his seizure in the wharf owner’s proceedings for the enforcement of his lien, together with the costs of such proceedings, and the amount of wharfage necessarily paid by plaintiff to enable him to recover possession of his boat. Such, howqver, was not the defendants’. agreement, as will appear by reference to the complaint and the testimony.” See 41 St. Rep., 846, and 16 N. Y. Supp., 524. The original complaint alleged that “ defendants agreed to pay to plaintiff as freight eighteen cents per ton alongside and all wharf-, age at the place of consignment,” and this was not a direct allegation that defendants agreed to pay to the wharfinger all wharf-age at place of consignment, and the testimony read in connection with this allegation may not have shown an express agreement to pay the wharfinger all wharfage, for which . plaintiff’s boat could certainly have been held liable, and this court should, upon the former hearing of appeal, have amended the complaint so as to conform to the proof; hence our appellate authority properly reversed the judgment and ordered a new trial.

The plaintiff, in obedience to this decision upon the former final appeal herein, moved at special term of this court, before the new trial was had, and was permitted, upon payment of fifty dollars costs, to amend his complaint so as to allege “ that defendants agreed to pay to the wharf owner or lessee of the dock all wharf-age at place of consignment; ” and upon such new trial, under this amended complaint and the answer to the same, much evidence was given by both parties, the one to prove the truth of this new or amended allegation, and the other to disprove the same, and this disputed question of fact thus raised and contested was by the trial judge fairly and clearly submitted to the jury, and especially so in charging the following request of defendants’ counsel: “I ask the court to charge that the jury cannot find a verdict against the defendants for a larger sum than ten dollars, unless they find that there was an express contract on the part of the defendants to pay wharfage to the wharfinger at the port of destination.” The jury found with the plaintiff upon this and the other disputed questions of fact and the verdict is not against the weight of evidence, and it would seem that this verdict, upon the new trial on the new evidence given under the amended complaint and the answer thereto, is a complete answer to the objections successfully made by the defendants on the hearing of the first final appeal herein.

Now as to defendant’s plea of the statute of limitation in bar of the action ; if this court and its appellate authority have rightly comprehended the nature of defendants’ liability and the consequent measure of damages, then it follows that plaintiff’s cause of action did not arise until he had paid the wharfage and the necessary expenses of the seizure of his boat in order to regain possession thereof, and all of this he did within six years of the commencement of his action.

The judgment appealed from is affirmed, with costs.

Ehrlich, Ch. J., and McCarthy, J., concur.


author: Ehrlich, Ch. J. McCarthy, J. Vah Wyck, J.

text:
    Bridget McArdle, Resp’t, v. James A. Smith, App’lt.

      (City Court of New York, General Term,

      Filed October 24, 1892.)

    Keghgence—Evidence.
    In an action to recover for the loss of plaintiff’s horses and wagon by reason of the failure to furnish guards or protection at the edge of a dump, an officer testified that he did not remark whether there was any stone or guard rail or anchor at the top of the dump to prevent wagons from falling off, and was asked whether he saw any there afterwards. This was objected to as irrelevant and immaterial. Meld, that the objection was not specific enough to call attention to the rule against the admission of evidence of subsequent alterations, and was properly overruled.
    (Vast Wyck, J., dissents.)
    Appeal from judgment entered on verdict of the jury in favor of plaintiff.

      R. W. Horner, for app’lt; W. P. & R. K. Prentice, for resp’t.
   Ehrlich, Ch. J.

No order was entered denying the motion for ao new trial on the judge’s minutes, and the appeal brings up for review only such errors of law as were committed at the trial. Third Ave. R. R. Co. v. Ebling, 100 N. Y., 98; Code, § 1346; 64 N. Y., 242.

The defendant was under an obligation to furnish the driver of the plaintiff a safe place to unload his wagon. Pantzar v. Tilly Foster I. M. Co., 99 N. Y., 368; Booth v. Boston & Albany R. R. Co., 73 id., 38; Newall v. Bartlett, 114 id., 399 ; 23 St. Rep, 732; Gluck v. Ridgewood Ice Co., 31 St. Rep., 89; affirmed 125 N. Y., 728; 35 St. Rep., 995; Ouderkirk v. Central Nat'l Bank, 119 N. Y., 263; 29 St. Rep., 573.

The .questions of duty, negligence and contributory negligence were all of them carefully submitted to the jury, who upon satisfactory evidence found a verdict in favor of the plaintiff for four hundred dollars ($400), which is moderate in amount, and ought to be affirmed.

The motion for a nonsuit was properly denied and the exception to the refusal is unavailing. The only exception worthy of attention is at folio 29 of the case, on the ruling admitting the evidence of Officer Kaiser.

He had testified that “he did not remark whether there was any stone or guard-rail or anchor at the top of the dump to prevent wagons from rolling off,” and was asked whether he saw any there afterwards ?

He answered this question in an unobjectionable manner, that is to say, in a manner not prejudicial to the defendant. The question did not purport to show any change in the condition after the accident, but only whether the officer had seen afterwards the things he was not sure he had seen before the accident occurred.

True, the officer went on and afterwards testified to objectionable matter, but no specific objection to the evidence was then made, nor was any motive urged to strike the objectionable answer out

The objection that evidence tending to prove that alterations have been made or precautions taken after the accident, is incompetent, Schmitt v. The Dry Dock R. R. Co., 2 City Court R., 361 ; 3 St. Rep., 257; 37 id., 142, 143,, is at most purely technical, and ought to have been made so clear that the trial judge might have understood the legal proposition before him before he was put in error.

It can scarcely be claimed that the objection urged at folio 29 intelligently apprised the trial judge of the point now urged so -clearly against the admission of the testimony allowed.

The objection was not to the competency of the evidence, but its materiality only. Bell v. Bumslead, 38 St. Rep., 396.

In addition to this, the absence of all' guards to prevent the falling in of wagons was such a clear breach of duty by defendant, or his agents, in charge of the dumping ground, that common prudence would dictate that if no guards were there before they should have been put there afterwards. We think the evidence did not prejudice the defendant in the minds of the jurors, and that the so-called error was harmless in its effect. For these reasons we think the judgment ought to be affirmed, with costs.

McCarthy, J.

The objection at folio 29 of the case was not specific, and was properly overruled. I concur.

Vah Wyck, J.

(dissenting.)—The complaint alleges that the plaintiff’s damages for the loss overboard of her horses and wagon was occasioned because the defendant “ did not provide guards or any protection ” on the embankment or dump for wagons, and her witness Dunn was questioned and answered as follows: •

“ Q. Was there a guard there for the wagons ? A. Ho guard at all for the long wagons.”

Her other witness, the policeman, speaking as of time prior to the accident, testified at folio 29: “I did not remark whether there was any stone or guard rail or anchor at the top of the dump to prevent wagons from falling off.”

“ Q. Did you see any there afterwards ? Defendant’s counsel objects as irrelevant and immaterial. Objection overruled. Exception. A. Well, after they had got the stones built up, the stones just as soon as they would be thrown from the wagons would go to the.very edge of the dump and several stones may remain there; there was no block or bar or anchor at the top of the dump to prevent the wagons from rolling off until after this accident; I saw one after the accident.”

The court of appeals in Corcoran v. Village of Peekskill, 108 N. Y., 151; 13 St. Rep., 105, says that the admission of evidence of this character is error, and Judge Earl there writing quotes from the opinion of the Salter's case, 3 Hun, 151, as follows: “ Whether the defendants were negligent was a question to be decided upon the facts as they existed at the time of the injury. What the defendants did afterwards was immaterial, unless their acts could be construed as equivalent to their declaration that they were negligent at the time of the injury. But the question appears to be settled by authority and not open for discussion in this court,” and continuing he says: “ While such evidence has no legitimate bearing upon the defendant's negligence or knowledge, its natural tendency is undoubtedly to prejudice and influence the minds of the jury.. Hence in this court and generally in the supreme court, it has been held erroneous to receive such evidence.”

The judgment appealed from should be reversed and new trial granted, with costs to appellant to abide the event Judgment affirmed, with costs.


author: McCarthy, J.

text:
    Jennie Fisher, Resp’t, v. Robert B. Monroe et al., App’lts.

      (City Court of New York, General Term,

      Filed October 24, 1892.)

    Contract—Theatrical—Discharge.
    Plaintiff was 'employed by defendants for a theatrical season under a contract which provided that if she was guilty of any violation of the rules the manager could annul the contract by giving a weeks notice. A rule of the company required every member to attend rehearsals when called. Plaintiff refused and neglected to attend a rehearsal, and was discharged the same day. Held, that defendants were bound by the terms of the contract; that the ground of discharge being a violation of the rules, the contract could not be terminated without the weeks notice, and that the discharge was in that respect wrongful and entitled plaintiff to damages.
    Appeal from judgment in favor of plaintiff, entered upon verdict.

      W. H. Phillips, for app’lts; S. Miller, for resp’t.
   McCarthy, J.

This is an appeal from a judgment entered upon a verdict in favor of the plaintiff.

The action was for damages caused'the plaintiff, an actress, by-reason of her discharge by the defendants, who were theatrical managers and proprietors, and until the end of the season specified in the contract between them.

The written contract declared that the plaintiff was engaged for a season of thirty weeks or longer during the years 1888-9.

The plaintiff began her duties under this contract at the opening of the season, September, 1888, and continued to perform her duties as a.n actress until after the performance of Saturday evening, November 1, 1888, when, immediately after that Saturday evening performance, one of the defendants discharged her, and refused to permit her to perform any longer under said contract.

The plaintiff was paid up to the time of her discharge, but the defendants have neglected and refused to pay her any further sum.

The plaintiff made diligent endeavor to find other employment during the balance of that season, but was able to procure an engagement but for a week, and for that she received the sum of thirty-five dollars ($35).

The season mentioned in the contract did not close until May 11, 1889. So the jury awarded the plaintiff the sum of thirty-five dollars ($35) a week for the remaining twenty weeks, less the sum of thirty-five dollars ($35) that she had earned in the meantime, thereby making the amount of their award five hundred and sixty-five dollars ($565).

It was testified by the defendant that the cause of the plaintiff’s immediate discharge by the defendants was her failure and refusal to be present .at a rehearsal, and it was also admitted that there was an absolute rule of the company that everybody should attend rehearsals when called, and that the plaintiff was aware of such rule.

The plaintiff was notified on a Friday to attend for rehearsal on the following day at 10.30 A, m. She failed to attend at the time named, but did later on the same day, and was that night discharged.

The defendant is bound by the terms of his own contract It reads: “ * * * guilty of any violation of the rules made by the party of the first part, then said manager may annul this contract by giving a weeks notice to do so.”

This condition limits the power to discharge, and is controlling in this case.

Here it appears that the ground of the discharge is the violation of a rule of his company. This being so, he cannot terminate the relations between him and the plaintiff unless by giving such a weeks notice to do so. The discharge was immediate and without notice. Until such notice was given, and the week had expired, he could not discharge her. Without the proper notice she became entitled to damages awarded in such cases.

The situation appears to have been overlooked in the trial.

In this view of the casa it becomes immaterial whether there was sufficient cause or not for the plaintiff’s discharge.

But if there was any doubt, then under the case presented it was a question of fact and was fairly submitted to the jury by the learned justice at the trial.

The fact that the plaintiff had received and receipted for the salary due her up to the time of her discharge does not relieve the defendants from their liability.

The rulings of the justice were proper and we find no error.

Judgment should be affirmed, with costs.

Ehrlich, Ch. J., and Vah Wyck, J., concur.


text:
    Catharine A. Peters, Resp’t, v. Sidney H. Stewart, Adm’r, App’lt.

      (City Court of New York, General Term,

      Filed October 24, 1892.)

    Decedents’ estates—Limitation.
    The mere leaving of a notice of rejection of claim at the residence of the claimant while such claimant is absent from the city, the server being notified of such absence, is not sufficient to bring such notice to the claimant’s knowledge so as to set the short statute of limitations running, unless such service was made with his assent and authority; but the statute only begins to run from the time when the claimant receives such notice.
    Appeal from judgment entered upon verdict in favor of plaintiff.

      T. N. Melvin, for app’lt; S. Miller. for resp’t.
   McCarthy, J.

This is an appeal from a judgment entered upon a verdict of a jury in favor of the plaintiff.

The plaintiff was a dress-maker, and with the money that she ¡received at that occupation supported her household, consisting of herself, her husband, sister and nephew, and in addition she had some boarders.

Her husband occasionally gave her some money, but she was the head of the household, supplied its running expenses with her own earnings, which she obtained from the practice of her trade and from her boarders, which she alone received; furnished the-entire table and flat, and paid the rent thereof, and no other person received any other emoluments from either source.

In the latter part of June, 1887, Mrs. Sarah A. Peck (a woman of considerable means), asked the plaintiff to take her to board,, and she and the plaintiff agreed on the price that she was to pay, viz: six dollars a week, and her washing fifty cents a week; and from that time she continued to board and room with the plaintiff, with the exception of a few weeks when she was absent, visiting,, until the time of her decease, January 19, 1889.

For about two weeks prior to her decease Mrs. Peck was very ill, and did not arise from her bed without the aid of the plaintiff, and during that latter period the plaintiff gave her extraordinary care and nursing * * * being with her day and night. * * * administering to her medicines, changing her bedding several times a day, and washing her person and apparel.

The body of Mrs. Peck was covered with gangrene sores, loathsome and dangerous to touch.

After Mrs. Peck’s decease the plaintiff washed and prepared her body for burial, and the burial services were conducted at- the plaintiff’s home, pursuant to instructions that Mrs. Peck had given during her lifetime.

Mrs. Peck had paid the plaintiff for her board up to April, 1888, but from that time she had paid but seventy-two dollars, leaving a balance due of two hundred and thirty dollars for board and washing up to the time of her decease; and for the extra care during the last two weeks of her life, which her physician said was worth twenty-five dollars a week, making fifty dollars; and for washing and preparing the body of deceased for burial twenty-five dollars, making in all, less the sum of seventy-two. dollars paid on account, the sum of $233.

The court refused to allow the jury to give any sum for the use of plaintiff’s house for burial.

There is no dispute as to the facts, for the defendant offered no evidence whatsoever in rebuttal or to sustain the allegations set forth as a counterclaim.

And at the conclusion of the trial, “ the defendant’s counsel, in open court, and to the jury stated that Mrs. Peck had made the-agreement with Mrs. Peters (the plaintiff) for the board as testified to by Miss Jackson, and that she was not a pensioner upon that family.”

The facts bearing on the question of costs are as follows : The defendant’s intestate died January 19, 1889.

Letters of administration upon her estate were issued to the-defendant February 11, 1890, and an order to advertise for claims was entered September 27, 1890; the claim herein was presented, in writing to the defendant Rovember 17, 1890.

The clerk of the attorney for the defendant took a written notice of rejection, in a sealed envelope, to the home of the plaintiff November 19, 1890, but the plaintiff was not at home at that time, and the clerk ordered it to be given to the plaintiff when she returned.

The plaintiff did not return until December 6, 1890, when she first-received the notice.

The defendant subsequently refused to refer the claim under the statute, so this action was begun by the service of a summons and complaint May 23, 1891, within six months from the time that the plaintiff received the notice of rejection.

The defendant .introduced no evidence whatsoever in support of the counterclaim for five hundred dollars set up in his answer.

The first question to determine is, was this claim barred by the-short statute of limitation.

Section 1822, Code of Civil Procedure, is as follows:

“ Where an executor or administrator disputes or rejects a. Claim against the estate of the decedent exhibited to him either before or after the commencement of the publication of a notice, requiring the presentation of claims, as prescribed by law, unless the claim is referred, as prescribed by law, the claimant must commence an action for the recovery thereof against the executor or administrator within six months after the dispute or rejection, or if no part of the debt is then due, within six months after a part thereof becomes due, in default whereof he and all persons claiming under him are forever barred from maintaining such an action thereupon, and from every other remedy to enforce payment thereof out of the decedent’s property.”

There must be a personal notice to the owner of the claim and a strict compliance with all of the provisions of the statute.

Van Brunt, J., in Van Saun v. Farley, 4 Daly, 167, says:

“ It will not be pretended that a mere rejection of a claim, without notice of such rejection to the owner of the claim, would set the statute in motion, because there is no other way than such notice by which the owner of the claim can be made aware that, his action must be commenced within six months after such rejection, or his right to bring an action will be lost.

“The statute does not mean, by rejection, merely a mental emotion, but the action of the mind must be followed by some outward act by which the owner of the claim may be apprised of the result arrived at.

“ It has been repeatedly held that this statute, unlike the other-statute of limitations, is not a statute of repose, but is rightly penal in its character, and should be strictly construed. Broderick v. Smith, 3 Lans., 27, and cases there cited.”

The mere leaving of the notice of rejection at the residence of the claimant on November. 19, 1890, while she was absent from the city, such statement being made to the server at the time, is not sufficient to bring such notice to her knowledge and thus bather claim, unless the service was made upon the person at suck residence with her consent and authority.

No such evidence -appears in this case. The fact is, that the -claimant did not return until December 6, 1890, and then for the first time received such notice and knew of the rejection of her claim.

Under the decisions, the statute could only begin to run from that date.

The action was commenced on May 23, 1891, and within six months after rejection of the claim, and is therefore not barred by the statute of limitations.

The party invoking the aid of the same must show a strict compliance with all its provisions. See Hoyt v. Bonnett, 50 N. Y., 542.

There is sufficient evidence that the defendant’s intestate boarded and lodged with the plaintiff at an agreed sum, and if there was any need of more proof that is supplied by the admission of the defendant at the close of the case.

It is further testified that in April, 1888, the defendant’s intestate said that she had loaned out her money and had not the money to pay her bill, she having paid up to that time, and no ■claim being made for the time prior.

That after that time the witness saw Mrs. Peck pay fifty dollars, ■and at another time twenty-two dollars, making in all seventy-two dollars.

Immediately upon such proof being presented, the defendant having pleaded payment, the onus was on him to show any further payments.

This he did not do.

The jury had a right to consider the evidence of the other witnesses in regard to services rendered similar to those of the plaintiff, and to say, in their judgment, what they were reasonably worth.

All the questions of fact were fairly and properly submitted.

We find no error, and the judgment should be affirmed, with costs.

Ehrlich, Ch. J., and Vah Wyck, J., concur.


text:
    Johh D. Brassington, Resp’t, v. Frederick Rohrs et al., App’lts.

      (City Court of New York, General Term,

      Filed October 24, 1892.)

    1. Pleading—Demurrer—When mat be served.
    There being no fixed time when a demurrer should be served, the right to serve it is not affected by the service of a notice of trial.
    '3. Same.
    In an action upon a promissory note, the answer denied, on information and belief, that plaintiff was the holder for value thereof, and for a further defense, that it was made for the accommodation of the payee only, and that defendant never received any consideration therefor. Feld, that the latter clause was intended as a separate and distinct defense, and that a , demurrer thereto was properly sustained.
    Appeal from judgment entered upon order sustaining demurrer to the second defense of the answer.

      H. Wehle, for app’lts; C. J. Hardy, for resp’t.
   McCarthy, J.

This action was brought by the plaintiff against the defendant as maker of a promissory note. The note was made payable to the order of one Nylin, who before maturity and for value transferred same to the plaintiff.

The defendant Rohrs answered as follows :

“Defendant denies, upon information and belief, that the-plaintiff is the holder of said note for value, but avers that defendant Nylin is still the owner thereof.”

“ For a further defense this defendant alleges that said note was. given to said Nylin for accommodation only, and defendant never received any consideration for the same.

The plaintiff and defendant immediately noticed the cause for trial, and the cause was put on the calendar for trial.

The plaintiff thereafter demurred to the second defense, on. the-ground that it was insufficient in law.

The demurrer was brought on for argument and the counsel for the appellant made a preliminary objection to the hearing of the demurrer, on the ground that the plaintiff having already served his notice of trial was precluded from demurring to the-answer, it being too late.

The preliminary objection was overruled and the demurrer sustained, and an interlocutory judgment directed, which was afterwards entered. The appellant now appeals from the order sustaining the demurrer and directing judgment, as well as from the judgment entered.

Section 494, Code of Civil Procedure, is as follows:

“ The plaintiff may demur to a counterclaim or a defense consisting of new matter contained in the answer, on the ground that it is insufficient in law upon the face thereof.”

An answer and a demurrer are distinct pleadings under the Code, having different offices and different characteristics, one forming an issue of law, and the other an issue of fact. Kelly v. Downing, 42 N. Y., 77.

The Code fixes the time in which an answer must be served, but, there is no provision limiting the time for the service of a demurrer. This brings us to the question regarding the effects of a-notice of trial.

The object of the notice of trial is to give notice of an issue-to be tried and of the readiness of the party serving same for trial.

Such notice, however, is subject to be defeated and rendered unavailing by the service of an amended pleading or a change in the pleading. See Townsend v. Hillman, 18 Civ. Pro., 215, and cases cited.

Unless an amended pleading is served before the time to do so expires, the notice of trial will stand. There being no fixed time when the demurrer should be served, the same was not affected by the service of the notice of trial.

The preliminary objection was properly overruled.

It is clear that the defense demurred to was intended as a separate and distinct defense.

It is not necessary to use the words separate and distinct.

Any other word or words may be used which will show the intent of the pleader, and, to my mind, it is clearly shown here.

It is too late now for the defendant, when caught, to attempt to «claim his intent was other than appears from the pleadings.

The demurrer was properly sustained and an interlocutory judgment therein directed.

The judgment was properly entered, and the order and judgment should be affirmed, with costs.

Ehrlich, Ch. J., and Vah Wyck, J., concur.


author: Ehrlich, Ch, J.

text:
    William P. Roome et al., Resp’ts. v. Frederick C. Jennings et al., App’lts.

      (City Court of New York, General Term,

      Filed October 24, 1892.)

    Pleading—Sufficiency of complaint.
    Where the objection that a complaint does not state facts sufficient to constitute a cause of action is not taken until the trial, the allegations are not subject to as close a criticism as upon demurrer. It is sufficient in such case if the complaint in some form contains the elements essential to a cause of action.
    Appeal from judgment entered on verdict in favor of plaintiffs.

      F. A. Thompson, for resp’ts; Putney & Bishop, for app’lts.
   Ehrlich, Ch, J.

Where the objection that a complaint does not state facts sufficient to constitute a cause of action is not taken until the trial, the allegations are not subject to as close a ■criticism as upon demurrer.

It is sufficient if the complaint in some form contains the elements essential to a cause of action. Disbrow v. Harris, 122 N. Y., 362; 33 St. Rep., 558; Zabriskie v. Smith, 13 N. Y., 332; Sanders v. Soutter, 126 id., 193; 37 St. Rep., 1; Clark v. Crego, 51 N. Y., 646.

The complaint liberally construed makes out a complete cause -of action, and the case was properly sent to the jury on the evidence.

It was intelligently submitted and the proofs sufficiently warrant the result arrived at.

There is no merit in the exceptions.

It follows that the judgment appealed from must be affirmed, •with costs.

McCARTHY, J., concurs.


author: Ehrlich, Ch. J.

text:
    Eva Brumfield, Resp’t, v. The Pottier & Stymus Mfg. Co., App’lt.

      (City Court of New York, General Term,

      Filed October 24, 1892.)

    1. Brokers—Commissions.
    The employment of a broker does not preclude the owner from making other efforts to sell or rent, and if without the broker a sale or renting is effected the broker gets nothing.
    S. Same—Evidence.
    While evidence as to what other persons did in the way of bringing about the sale or letting of the premises for which plaintiff claims commissions is relevant, evidence as to what the owner said to such persons in the absence of plaintiff is immaterial.
    Appeal from judgment entered on verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Brewster Kissam, for app’lt; Denison & Hall, for resp’t.
   Ehrlich, Ch. J.

The employment of a broker does not preclude the owner from making other efforts to sell or rent, and if without the broker a sale or renting is effected, the broker, as matter of course, gets nothing.

The question at issue here was whether the plaintiff was the procuring cause of the letting, and the j ury on the evidence found that she was, a finding which negatives the idea that any other agency co-operated to bring about the result.

The evidence was sufficiently strong to warrant the finding made by the jury, and their verdict should stand unless error was committed in excluding testimony tending to prove that othqr agencies brought about the result finally reached.

The trial judge did not exclude evidence of any fact tending to show what other brokers or persons did in the premises, or what they, accomplished with reference to the letting for which brokerage was claimed.

The evidence excluded was as to conversations with other persons in the absence of the plaintiff. What was said to them by the defendant’s officers was immaterial.

While what such other persons did (whether employed or not) in the way of bringing about the letting for which the plaintiff claims compensation was relevant; indeed, might be controlling, the evidence excluded was not of this material character, and its exclusion was not error requiring correction or a. new trial.

It follows that the judgment and order appealed from must be affirmed, with costs.

McCarthy, J., concurs.


text:
    Richard Ridert, Resp’t, v. Adolph Blumenkrohn et al., App’lts.

      (City Court of New York, General Term,

      Filed October 24, 1892.)

    Depositions—Examination before trial.
    Where the plaintiff resides in a foreign land, and cannot with any certainty an'icipate what the defendants will testify to on the trial, and the evidence sought is material and necessary, it is proper to order an examination of the defendants before trial.
    Appeal by defendants from order denying motion to set aside order for examination of said defendants as witnesses before trial

      Simpson & Wolf, for app’lt; Blumenstiel & Hirsch, for resp’ts.
   Ehrlich, Ch. J.

The plaintiff resides in Saxony, and the defendants reside and do business in New York. The order requires the defendants to appear and submit to an examination as Witnesses in behalf of the plaintiff in respect to the issues raised by the pleadings. The affidavit upon which the order was granted complies with the formal requirements of the Code. It shows the materiality of the evidence and the necessity of the examination in advance of the trial.

Considering the fact that plaintiff resides in a foreign land, that he could not with any certainty anticipate what the defendants would testify to at the trial, their examination was both prudential and necessary to meet the exigencies of the trial.

The fact that the plaintiff intended to use the deposition at the trial is not expressed in so many words, yet the purpose to use thecsame thereat so clearly appears that the omission is supplied by necessary intendment, and so long as the fact appears, the rule is satisfied.

The rule in regard to these examinations has been liberally extended by the courts, Herbage v. City of Utica, 109 N. Y., 81; 14 St. Rep., 845; Goldberg v. Roberts, 5 Civ. Pro., 96, and it can in furtherance of justice be applied to this case.

We find no error, and the order appealed from must be affirmed, with costs.

Van Wyck, J., concurs.


author: Peckham, J.

text:
    Peter J. Ferris, Trustee, Resp’t, v. Samuel B. Hard et al., App’lts.

      (Court of Appeals,

      Filed October 11, 1892.)

    1. Foreclosure—Evidence.
    In an action to foreclose a mortgage, the complaint set forth that defendant and his wife executed the same to B. for $10,000 payable in sums of $2,500 yearly; that B. duly assigned the same to plaintiff as trustee for the city of Buffalo and the whole amount was due. Defendant Margaret Hard answered that she was requested to execute the mortgage upon her land for the purpose of securing B.’s firm for money loaned and to be loaned to her husband, and that the firm had received moneys which should be applied on her husband’s indebtedness. Her husband’s answer contained the same allegations,but on the trial he testified that nothing had ever been said between him and B. that the mortgage should stand for the loan, etc. Mrs. H. then offered to show by her husband that when the answers were drawn he informed the attorney that the bond and mortgage were not .executed as securities for any loan, etc., and the attorney advised him there was no legal difference, as that was the legal effect, etc., and under objection the court refused to allow this to be shown. Held, error; that as the evidence stood there was a clear contradiction between the evidence and the sworn answer, and any evidence which tended, if believed, to explain such contradiction in a manner consistent wiih the honesty of the witness, the defendants were entitled to give.
    2. Same.
    In this case paroi evidence was admissible to show that the consideration for the exección of the written security for the payment of $10,000 was the indebtedness then existing, or subsequently to be incurred, of Mr. H. to B. or to any firm of which he was a member.
    3. Same—Interest.
    The referee gave judgment for the principal sums as set out in the mortgage with interest at seven per cent, up to the entry of the judgment. Held, error; that by the terms of the mortgage, as the instalments came due, if unpaid they bore interest at the rate of interest authorized by law, so that it was reduced to six per cent, on all sums due and unpaid after the time when the legal rate was reduced by law.

      Appeal from judgment of the superior court of the city of Buffalo, general term, affirming report of referee in foreclosure in favor of plaintiff.

      Geo. Wadsworth, for app’lts; Price A. Matteson, for resp’t.
   Peckham, J.

This is an action to foreclose a mortgage executed by defendants Hard, upon land owned by the defendant, Mrs. Hard.

The amended complaint sets forth the fact of the execution of the bond by defendant Samuel B. Hard to one Joseph Bork. on the 10th of September, 1874, for the payment of $10,000 in four equal payments of $2,500 on the 10th of September in each of the years 1876, 1877, 1878 and 1879, with interest semi-annually on all sums remaining from time to time unpaid. To secure Such payments the amended complaint alleged that defendants Hard executed a mortgage bearing even date with the bond and whereby they mortgaged the land described in the amended complaint. The mortgage was duly acknowledged and certified, and it was delivered to Bork on the day of its date. On February 1, 1876, Bork duly assigned the same to plaintiff as trustee for the city of Buffalo, and the city is the real party in interest and the sole and absolute .owner of the bond and mortgage. It is then further averred that there is due and remaining unpaid the sum cf $10,000 and interest thereon from September 10, 1874, at 7 per cent. Further appropriate and ordinary allegations for the foreclosure of the mortgage were set forth in the pleading.

The defendant Margaret Hard put in a separate answer and set up in the way of an independent allegation, that she was seized on the 10th of September, 1874, and possessed in her own right of the lands described in the amended complaint, and that on such day she executed a mortgage of the premises mentioned in the amended complaint and delivered it under the circumstances, and upon the consideration, and for the purpose then set forth in her answer. She also therein alleged that she was in September, 1874, informed that her husband was indebted to the firm of Lyon, Bork & Co., on account of money loaned by the firm to him, and she was requested to execute a mortgage to Joseph Bork, one of the firm, upon her land, for the purpose of securing such firm against loss by reason of such loans theretofore made and thereafter to be made to her husband, and she thereupon executed a mortgage upon lands described in the amended complaint and delivered it for such purpose. She believed the mortgage set forth in the amended complaint to be the same one thus executed and delivered.

The answer further stated that the firm had since that time received moneys which should be applied on her husband’s indebtedness to the firm, but there had been no accounting, and she denied any knowledge, etc., that the sum of ten thousand dollars was due. She then denied any knowledge or information sufficient to form a belief as to tlie truth of the allegations of the amended complaint, “ not hereinbefore admitted, qualified or denied, and therefore she denies the same, and each and every o£ such allegations. ” Ho question appears to have been raised as to the form of this denial.

The action was referred to a referee for trial, and he reported in favor of the plaintiff for foreclosure and sale of the premises to pay the full amount of ten thousand dollars, and interest at seven per cent, from the execution of the mortgage.

Judgment was accordingly entered, and the same has been affirmed upon appeal at general term of the superior court of the city of Buffalo, and from the judgment of affirmance the defendants Hai’d have appealed to this court.

Upon the trial Samuel B. Hard was called as a witness on behalf of the defendants. It appears that his answer to the complaint also contained the allegation that the mortgage had been executed in order to secure the firm of Lyon, Bork & Co. for loans of money theretofore made, and which might thereafter be-made to the witness. Upon the trial he testified that nothing was-ever said between him and Bork (with whom the whole transaction concededly took place) that the mortgage should stand for anything he owed, nor that it was given to secure any advances-subsequently to be made by either of the firms or by Bork. Hard also testified that he told Bork that he would get his (Hard’s) wife to execute a mortgage for $10,000 on a part of the creek property, and that he would give Bork his own bond, and that Bork should sell the bond and mortgage.

Here was a direct contradiction between the evidence of Mr. Hard and his sworn answer.

It would seem that this contradiction was fully understood and. its serious character appreciated by the defendants and their counsel. The record shows that the defendant, Mrs. Hard, offered to-show by her husband, Mr. Hard, the witness then on the stand, that when his and Mrs. Hard’s answers were drawn, Mr. Hard informed the attorney who drew them that the bond and mortgage in question were executed and delivered to Bork to be sold by him for the benefit of Mr. Hard, as absolute securities and not as securities for any amount then owing by him or for advances thereafter to he made, and the attorney advised him there was no legal difference, that the mortgagee would have the right to bold them as such security, and that such was the legal effect of the transaction, and that, relying upon such advice and supposing it to be correct, he and the defendant Margaret H. Hard answered the complaint as shown by their answers herein. The plaintiff objected to this evidence as immaterial, incompetent and irrelevant, and the court sustained the objection and the defendants excepted.

We think this offer should have been allowed to be proved. As the evidence stood, a clear contradiction was shown between the evidence and the sworn answer of the witness, and any evidence which tended, if believed, to explain such contradiction in a manner consistent with the honesty of the witness, the defendants were entitled to give.

If the plaintiff claim that the allegation in the answer was an admission of a fact which concluded the defendant so long as it remained a part of the pleading, one answer to such claim is that it comes too late. The plaintiff had permitted, without objection, the evidence to be given which showed the contradiction, and it was then too late to interpose with an objection which should preclude any explanation of the contradiction. This is upon common principles of fairness. If the plaintiff had a conclusive objection to the proof of any fact which would contradict the admission in the answer, he was bound to state it when the evidence in contradiction was offered, and he should not be permitted to acquiesce in its admission without the least objection, and subsequently present the objection when the witness desires to explain this contradiction. Otherwise the plaintiff obtains the benefit of the contradiction and its effect as more or less of an impeachment of the rest of the evidence of the witness, while at the same time he secures the conclusive character of the admission in the pleading. This he should not be permitted to do.

Upon examination of the so-called admission we are of the •opinion that it is not of such a character as to prevent on that ground evidence of an inconsistent fact.

It admits no allegation of the complaint. That pleading made no allegation as to the consideration of the bond and mortgage. It alleged the execution of the bond in the penal sum of $20,-000 with the condition for the payment of $10,000 as therein stated, and that the mortgage was executed as security for the bond.

The answer of Mrs. Hard set up as an affirmative defense the execution of the mortgage for the purpose of securing the firm of Lyon, Bork & Co. for loans already made by that firm to her husband, or which might thereafter be made to him, and then stated the further facts necessary to secure an accounting, and denied the indebtedness of $10,000. The only admission that could possibly be here claimed might consist in an admission of the execution of a mortgage upon the lands described in the amended complaint.

It in fact is nothing but an allegation of the execution of a mortgage, coupled with and forming part of the allegation as to its consideration. An answer may contain a direct or implied admission of some fact alleged in a complaint. The admission is implied when the fact alleged in the complaint is not denied in the answer. It is direct when the admission is made in terms. Either form of admission of an allegation contained in the complaint. is conclusive upon a defendant so long as it remains in the pleading, and the plaintiff can point to it as conclusive proof of the truth of his allegation. Paige v. Willet, 38 N. Y., 28 ; Robbins v. Codman, 4 E. D. Smith, 315, 325. An allegation contained in an answer setting up an affirmative defense which has no reference to and does not admit any allegation of the complaint, is of an entirely different nature. Such allegation is not an admission contained in a pleading which is conclusive so long as it remains in the record. An admission which so concludes a party admits something already alleged or set forth in the pleading to which the pleading containing the admission is an answer. In this case the allegation as to the consideration of the mortgage-admitted nothing as to that consideration which was set forth in complaint, for there was no allegation therein as to the consideration, and consequently the defendant was not concluded from, showing a fact which was inconsistent with his allegation of the consideration, on the ground that he had admitted the consideration and could not be heard to prove one inconsistent with such admission. The plaintiff could avail himself of the allegation as a declaration by defendant, and the defendant could explain it by other evidence so far as possible.

The qtíestion whether this evidence of the consideration, as testified to by Mr. Hard, was not objectionable on the ground that it changed substantially the defense, Code, § 72S, is not now here. Ho such question was raised when the evidence was given. Subsequent to that time, the defendants requested the referee to-give them leave to amend the answers by striking out the allegations as to the consideration of the mortgage, and by inserting allegations in conformity to the testimony of defendant Hard-This was objected to by the plaintiff upon the ground that such amendment would change the issues, and also because the defendants had been guilty of loches. The court denied the motion for lack of jurisdiction, and not as discretionary. I suppose the motion was made so that the evidence already in without objection might be regarded by the referee as properly taken upon a question raised by the pleadings, and in order that he should not. ignore the evidence as not material to any issue raised, although* coming in without objection.' The defendants, of course, desired the benefit of this evidence, if there was any, and therefore naturally sought to have it appear as material evidence offered upon an issue raised by their answers in the action.

As there must be a new trial because of the error in refusing,, under the circumstances already set forth, to allow the defendant Hard to explain the apparent contradiction in his evidence when* compared with his answer, it is not necessary to decide whether the referee was or was not correct in his decision. The motion for leave to amend can be now made at special term, if defendants be so advised, before another trial is entered upon, and the court can decide the motion upon such terms as to it may appear to be just.

The rules for permitting amendments to pleadings before trial so as to have them present the case as the parties desire it, are very properly quite liberal, and there is no fear that the defendants will be treated with any injustice in such a matter.

It would be quite unfortunate for the parties if we should send-this case back for a new trial without deciding the real question which appellants’ counsel has so ingeniously argued. He says, this mortgage was executed by the defendant, Mrs. Hard, as a. surety for her husband’s liability, and her contract must be-judged according to the strictest rules governing contracts oi sureties. The mortgage, he says, is in terms one to Joseph Borl- and on its face purports to secure the payment to him of $10,000,* and it cannot be enforced as security for the payment of Mr. Hard’s debt to Lyon, Bork & Co., or any other firm, even though Joseph Bork were a member thereof, and it can only be enforced as a security for a debt owing to Joseph Bork personally. He urges that the contract is one to answer for the debt of a third person, and must be in writing and the writing must govern even though it do not express the paroi contract which in fact had been entered into. Thus, if Mrs. Hard had agreed by paroi to secure by her mortgage the debts of her husband to Bork, or to any firm of which he was a member, and the mortgage was in terms to secure her husband’s personal indebtedness to Bork alone, it could not, he argues, be enforced for the firm indebtedness because of the want of an agreement in writing to that effect. The principle claimed by the counsel is correct, but it is not applicable to this case.

It is true that the indebtedness for which the land of Mrs. Hard is to be held liable is that of a third person, viz.: her husband, but her contract in regard to it is in writing and signed by her. The statute which forbids holding her liable for the debt of another unless by virtue of her own contract in writing and signed by her is thus complied with. Evidence of the real and actual consideration of the mortgage may always be given by paroi. Either party is always at liberty to show, for any purpose except to prevent its operation as a valid deed or mortgage, that the consideration was different from that named in the instrument. Murray v. Smith, 1 Duer, 412, and cases cited. This principle is not affected because one of the parties to the instrument is a surety for some third person. Thus, in this case, it seems to me plain that paroi evidence is admissible to show that the consideration for the execution of this written security for the payment of $10,000 was the indebtedness then existing or subsequently to be incurred of Mr. Hard, the husband of the mortgagor, to Mr. Bork, or to any firm of which he was a member. The mortgagor must be privy to such consideration.

The evidence of the real consideration does not change the liability of the party signing the mortgage. It shows the reasons for assuming the obligation and the character thereof. While the instrument might show a pecuniary consideration for its execution, paroi evidence is admissible to show that the consideration was other than pecuniary. And this has been held not to violate the general rule that paroi evidence is not admissible to contradict a writing. (Case above cited.) The same principle applies to the case of a surety. The consideration, while open to explanation, cannot be enlarged so as to enlarge the liability beyond that which the party has entered into in writing. The amount of the indebtedness of her husband, for which Mrs. Hard’s property described in the mortgage could be held liable, cannot in any event exceed $10,000 and interest properly cast. She has only offered her land as security to that extent, and she cannot be held beyond it by virtue of any paroi agreement. She agreed to hold her land liable to secure the payment of $10,000 in sums and at the times mentioned in the mortgage, and her land is not liable to secure the payment of any greater sum or at any other times than as she promised. Any indebtedness, therefore, which her land could secure must have been incurred and have become due not later than the times indicated for the payment of the moneys set out in the mortgage. Within the principle permitting paroi evidence as to the consideration for which a written instrument was executed, it is entirely competent to show that the consideration upon which the defendant Mrs. Hard executed the mortgage to secure the payment of $10,000 was the indebtedness of her husband then existing or thereafter to be incurred in favor of Mr. Bork, or in favor of any firm of which he was a member. The agreement by which Mrs. Hard answers for the debt of a third person is the written mortgage signed by her. The consideration for the written agreement may be proved by oral evidence. This consideration will be a matter for proof upon the new trial which must be had, and we-will not anticipate 'further the questions which may possibly be-raised on such new trial.

One other question will necessarily be passed upon on the new trial, and that is .the question of the rate of interest. It arises now, and we think we should decide it. The referee gave judgment for the principal sum as set out in the mortgage, with, interest at seven per cent, up to the entry of the judgment.

The mortgage contained a provision for the payment of $10,-000 as stated in the commencement of this opinion.

This is not like the agreement to pay interest on a principal sum at seven per cent until the principal sum is paid, such as the-case of Taylor v. Wing, 84 N. Y., 471, 477.

In the present case the amount of principal was stated and it was agreed to be paid in instalments of $2,500 in four annual payments, and the sums remaining from time to time unpaid were to bear interest at seven per cent. This clearly meant that the-interest on the principal sum, which by the terms of the mortgage was not due, was to be at seven per cent. Thus the whole principal sum of $10,000 was to be at an interest of seven percent from the time of the execution of the mortgage until an instalment became due, and then when the instalment was paid the-interest on the balance remaining unpaid, but not yet due, was-also to be at the same rate. If an instalment was not paid when due, the contract was violated and interest after that upon such instalment could only be recovered as damages and at the rate of interest authorized by law. Bennett v. Bates, 94 N. Y., 354; O'Brien v. Young, 95 id., 428.

This leaves the mortgage running at seven per cent interest upon all sums unpaid up to the time when the legal rate was reduced to six per cent and from that time on at the reduced rate.

For the reasons above given the judgment must be reversed! and there must be a new trial, with costs to abide the event.

All concur.


author: Gray, J.

text:
    Pliny T. Sexton, Survivor, App'lt, v. Henry Breese, Resp’t.

      (Court of Appeals,

      Filed October 11, 1892.)

    Mortgage—Mortgagee in possession.
    The owner of a farm in 1873 executed and delivered to plaintiff’s firm a mortgage thereon as collateral security for any liability which the mortgagor might thereafter incur, and it was to become due by its terms after demand. In February, 1879, the owner left the place, allowing the defendant, to whom he was in debt for money borrowed, to have possession, of the farm and in March he sold defendant the growing crop of wheat which he had himself sowed the previous autumn; the bill of sale giving-to defendant the right to secure and harvest the crop. In April the owner authorized plaintiff ‘ ‘ to take possession of my farm at Macedón and to= rent same * * * and after paying all expenses to apply the net income-upon my indebtedness to him.” He took possession, and when the wheat had ripened the defendant went upon the farm to cut it, but was prevented from doing so by the plaintiff, who proceeded to harvest it for himself, but before he had gotten in the wheat from the field defendant entered early in the morning and carried it off. Held, that plaintiff was not a mortgagee in possession, but merely had the right to rent the place and, apply the net income upon the indebtedness, and defendant had the right of ingress to gather and carry away the crop.
    Appeal from a judgment of the supreme court, general term,, fifth department, denying motion for new trial on case and exceptions ordered to be heard in the first instance at the general term., after a verdict for defendant at the circuit.

      S. B. McIntyre and Charles McLouth, for app’lt; M. Hopkin, for resp’t.

       Affirming 32 St. Rep., 262.

   Gray, J.

The action was in replevin, for the purpose of recovering a crop of wheat which had been harvested from a farm and the question presented relates to the respective rights thereto-of the plaintiff; as mortgagee of the farm, and claiming to be in possession as such, and of the defendant as the vendee of the= growing crop, under a bill of sale from the owner and mortgagor. The mortgage was executed and delivered in 1875 to the plaintiff's firm as a collateral security for any liabilities which the-mortgagor might thereafter incur, and was to become due, by its. terms, one month after demand. Ir February, 1879, the owner of"' the farm left the place, allowing the defendant, to whom he was in debt for moneys borrowed, to have possession of the farm and to work it for himself. In 'the following month he sold to the defendant the standing, or growing crop of wheat in question, and which he had himself sowed in the previous autumn; the bill of sale giving to defendant the right to secure and harvest the crop. In the following month of April the owner of the farm executed and delivered a certain instrument to the plaintiff, wherein he authorized him “ to take possession of my farm at Macedón, and to-rent same * * * and after paying all expenses, to apply the net income upon my indebtedness to him.” He entered upon the farm, under this instrument, and it is his claim that thereby he became mortgagee in possession. When the wheat had ripened, the defendant went upon the farm to cut it, but was prevented from doing so by the plaintiff, who proceeded to harvest it for himself. Before, however, the plaintiff had gotten in the wheat from the field, the defendant entered, early in the morning, and carried it off. This action then resulted.

I do not think that the instrument, under which the plaintiff -entered into the possession of this farm, had the effect of making that possession that of the mortgagee, as that is technically understood. Its very terms seem to preclude that idea; for the possession which the plaintiff was authorized to take was qualified and limited to the exercise and enjoyment of certain prescribed acts; namely, to rent it and to apply the net income upon the indebtedness. The mortgage had not become due; inasmuch as there had been no demand for the payment of any indebtedness accrued and to be secured by it; or, at any rate, such a demand as the nature of this mortgage required. But I do not think it very important to our decision whether we hold that the possession was technically that of mortgagee; or one authorized by and assumed under the writing referred to. Although, if that question should be deemed essential, I should regard the possession taken by plaintiff, through this instrument of April, 1879, as not equivalent to a possession by surrender of the land from the mortgagor. In this state it must be regarded as settled by the cases that the title of the mortgagor to the land is not changed by the mortgage. It remains as beforé, while the mortgagee has in the mortgage a security for -the mortgagor’s debt, which is impressed upon the lands (described and incumbers them with the burden of the debt It must also be regarded as settled that even if the mortgagee goes into possession of the premises by a surrender of them from the mortgagor, the legal title or fee still remains in the mortgagor; and what the mortgagee thereby acquires is the possession of the pledged property. He holds it then for the purpose of paying.off the debt with which it was incumbered; but takes no estate in the land. Kortright v. Cady, 21 N. Y., 343; Trimm v. Marsh, 54 id., 599. In Trimm v. Marsh, the question of the effect upon the title, where the mortgagee acquires the possession of the land, was quite fully discussed, upon theory and in the light of earlier cases, and the decision should be considered as settling, and, as I think, quite in accordance with the reason of the thing, that a mortgagee who merely is let into the possession of the mortgaged land does not acquire the legal title.

If we assume that the plaintiff was in possession of the land as by an actual surrender from the mortgagor, his rights in its use were subject to the previous disposition made of the growing crop of grain by the owner of the land. He had planted the crop and it was perfectly competent for him to dispose of it while he held the title to the land. Though, in a sense, a growing crop of grain, is a part of the real estate, it, nevertheless, possesses the characteristics of a chattel and is saleable and transferrible as other personal property is, and may be taken upon execution and sold in discharge of a judgment debt Whipple v. Foot, 2 Johns., 422 ; Stall v. Wilbur, 77 N. Y., 158. The relation which growing crops bear to the land has been frequently the subject of discussion in the courts, and is in some respects a peculiar one. They pass to the grantee in a conveyance of the land, as appertaining thereto. Wintermute v. Light, 46 Barb., 283 ; Stall v. Wilbur, supra. And equally upon a sale in foreclosure of a mortgage, the purchaser would acquire with the title to the land the right to the growing; crops. Shepard v. Philbrick, 2 Denio, 174.

In England, growing crops which were fructus industriales, that is to say, annual products of a tillage of the earth by the labor of the occupier, have been regarded as chattels, quite independent of the land. Any supposed confusion in the decisions, with respect to their relation to the land, arose rather in the consideration of the question of the validity of- their transfer by paroi, under the statute of frauds, than in any difference in opinion as to their being chattels.

Distinctions, of course, were made between growing crops of grain, and trees, the fruits of trees and perennial plants. Crosby v. Wadsworth, 6 East, 602; Evans v. Roberts, 5 B. & C., 829: Jones v. Flint, 10 Ad. & E., 753; Rodwel v. Phillips, 9 M. & W., 501.

Those views, as to the legal relation of these annual products of the land to the land itself, obtained and were held here in the early cases of Whipple v. Foot, supra; Shepard v. Philbrick, supra ; Green v. Armstrong, 1 Denio, 550, and more recently in the case of Stall v. Wibur, to which I have referred. Probably the rights of a third person to the growing crop of grain, under a contract of purchase with the owner, would be annulled by the sale upon the foreclosure of a mortgage of the land, according to the decisions in Shepard v. Philbrick, supra, and Lane v. King, 8 Wend., 584, for then the transfer of the title to the mortgaged premises would carry with it to the purchaser a paramount title to the growing crop. But, in the present case, that proposition is not before us and the title of the mortgagor to the mortgaged land was not divested or transferred to the mortgagee with the possession. The defendant Breese was the purchaser of the growing crop of wheat and, upon its becoming ripe for harvesting, as well under the express authority of his bill of sale, as without it, impliedly, he had the right of ingress to gather and to carry it away. Stewart v. Doughty, 9 Johns., 108. His vendor’s legal title to the land had not ceased and the fact of the mere possession having changed to another person was not sufficient to annul Breese’s contract, and was, consequently, inoperative upon his right to enter and carry away the ripened wheat.

We think the conclusion reached by the general term that the defendant was entitled to the verdict at circuit was correct and, as no other errors appear from the record, their order denying plaintiff’s motion for a new trial upon his exceptions,- and directing judgment on the verdict, should be affirmed, with costs.

All concur.


author: Finch, J.

text:
    The People, Resp’ts, v. Fred McGuire, App’lt.

      (Court of Appeals,

      Filed October 18, 1892.)

    1. Homicide—Evidence—Accomplice.
    Upon the trial of defendant for murder, it was clear that either he or Sarah Brown was guilty of the crime. By their own testimony they were ready to commit robbery if it could be done with safety. McGuire swore that while gathering nuts they came to the murdered woman’s place; that Sarah went over there and on her return said she “ had murdered the dirty old wretch.” She had never been there before and had no hostility to the murdered woman. Sarah McGuire testified that she and the prisoner went to effect the robbery ; that she tried to persuade him to abandon his purpose; that they parted at the fence and on his return said he had killed Mrs. G., but wished he had not; that he hid the pistol, the pocket book, money and mask in the woods where they were afterwards found. The murdered woman was horribly mangled, yet the prisoner said Sarah had no blood on her on her return, and her clothing showed none, while she says he had blood stains on him, etc. Held, that even if the woman be regarded as an accomplice her evidence was strongly corroborated in material respects by that of the prisoner himself and strengthened by the falsity of his statements when first accused, and by his confessions.
    2. Same.
    Proof of practice at shooting at a mark by the prisoner, Mrs. Brown and another, while of slight importance, was competent evidence.
    Appeal from judgment of the Orange county oyer and terminer, convicting defendant of the crime of murder.

      Wilton Bennet, for app’lt; M. H. Hirschberg, for resp’ts.
   Finch, J.

It is so entirely clear that the murder charged in the indictment -was committed either by the prisoner or Sarah Brown, that the learned counsel for the former frankly admitted the fact upon the argument, and so left in the case only the inquiry which of the two was guilty of the crime. Each charged it upon the other, and both as witnesses upon the trial gave their version of the facts, and it is not difficult upon a comparison of their-respective accounts of the transaction to determine where the truth really is.

They started from their home together and went to the neighborhood of Gregory’s house. Both knew that money was kept there, •and largely overestimated the amount. Both had talked over the project of robbery and apparently were ready to commit that crime if it could be done with safety. The man says that they left home for the innocent purpose of gathering nuts, and that in pursuit of that occupation they came to the edge of the woods near Gregory’s; that the woman then said she was going to Gregory’s; that the prisoner asked what for;' and she merely replied, “Wait till I return;” and that when she came back she said she “had murdered the dirty old wretch.” She had never before been in the house, had no acquaintance with and so no personal hostility to Mrs. Gregory, never even asked McGuire to go with her or aid her in the enterprise, and did not tell him her purpose, although she knew he had talked about the robbery and certainly had displayed no aversion to the act. The story, as he tells it, is not very easy of belief. On the other hand, she testifies that they left home for the understood purpose of effecting the robbery, which had often been talked about; that she tried to persuade the defendant to abandon his purpose, but he persisted; that he left her to wait for him at the barbed wire fence ; that on his return he said he had killed Mrs. Gregory, but wished he had not; and that he hid the pistol, the pocket book, the money, and the mask which he had made, in the woods where they were afterwards found. Knowing, as we do, that one account or the other is substantially true, although both witnesses were more or less unreliable, there is very little doubt which should have our belief. And even that doubt is dispelled when other features of the evidence are considered.

Mrs. Gregory was both shot through the head and cut and mangled and bruised almost beyond recognition. Her blood was everywhere; on the floor and on the door and spattered in all directions. The broken vessel of earthenware showed with what weapon the cuts and bruises were made. The murderer left the scene through the front door. The blood on his hands stained its knob, left finger marks on the sides, and the outline of a heel on the porch. And yet the prisoner, telling his story to save his life, confesses that when Mrs. Brown returned to him he saw no blood upon her anywhere, on face or hands or dress, and no witness in the case was able to find upon her clothing any. such marks of guilt, although she wore for the first time a light calico dress which she continued to wear thereafter. If she was the guilty person, what we know of the death scene makes it certain that the blood of her victim would have been plainly visible upon her in the daylight of her return. In addition, he declares that he saw -her have no weapon, although, beyond question, the shots were fired from his own revolver. On the contrary, she testifies that he returned with blood stains upon him; that they were on his pants and on his shoes; that he wore two coats when he started from home, a black coat over a red one; that he left the black coat with her at the fence, and on his return put on the black one, and buried the red one, which he later dug up and burned. She adds that he rubbed out most of the stains on his pantaloons with a piece of lining torn from the coat, but one refractory spot he pounded out with a stone, and she sewed a patch over the rent The garment with the patch on it was produced, and all the prisoner could say about it was that he could not tell how the patch or the hole it covered came to be there. Comparing the statements of the two witnesses, we are obliged to say that even if the woman be regarded as an accomplice her evidence is strongly corroborated in material respects by that of the prisoner himself, and strengthened by the falsity of his statements when first accused. He denied totally his presence at Gregory’s or near there on that afternoon,- asserting that he went to the asylum in pursuit of work, -and denied also possession of the small revolver. The falsity of both statements he admitted as a witness, assigning as an excuse a desire to screen Mrs. Brown, when the most probable object was to screen himself.

A distinct confession of his guilt made by him to Brazington was sworn to by the latter. He cannot be regarded as an accomplice in the commission of the crime. When it was done he was at work with Gregory in the celery field, and never was gone for a moment There is no evidence that he knew beforehand of the expedition to Gregory’s on that day, or in any manner aided or abetted it. There is proof that he talked approvingly of a robbery, and even started once with McGuire to effect it, but he is in no manner connected with the actual offense committed except by his silence after he heard of it. He says that McGuire confessed to him that he committed the crime, and gave him the twenty dollar gold piece and some other money stolen from Gregory not to tell. The prisoner’s counsel calls the story improbable, and criticizes it as telling of a crime and then buying the listener’s silence, when it was easy not to tell at all. But that is not a just criticism. What had previously passed between the two with reference to a robbery was quite enough when it occurred to enable Brazington to be sure that McGuire was the perpetrator. The latter knew that the former would be confident of it, and a denial to him useless. He took what seemed to him the safer course of telling him the truth, and bribing him to silence. So that neither the want of corroboration of Mrs. Brown’s evidence nor the criticism upon Brazington’s are well founded.

The defendant’s counsel urges that the proof given of practice at shooting at a mark by McGuire, Mrs. Brown and Brazington, or some of them, was improperly admitted. It was competent evidence, although of very slight importance, and can scarcely be said to have influenced the verdict.

The trial was conducted with extreme solicitude for the rights of the prisoner; the charge to the jury was so fair and just that his counsel not only took no exception to it, but expressed his entire satisfaction; and the verdict is well supported by the evidence.

The judgment must be affirmed.

All concur.


text:
    William I. Thorn, Resp’t, v. Oliver T. Beard, App’lt.

      (Court of Appeals,

      Filed October 18, 1892.)

    1. Attorney—Compensation—Guardian ad litem.
    A guardian ad litem cannot recover for services rendered as counsel for a party whose interest is adverse to that of the infants.
    2. Same.
    While plaintiff was so acting as guardian ad litem he was also more or less advising defendant, the infants’ father, in directions hostile to their interests. In the course of the discussions, certain matters in which the interests of the children were identical with those of the father came up, and there was some talkpf plaintiff being employed as attorney after the existing litigations were out of the way, and he left unhampered by his position as guardian. Held, that plaintiff could not recover, as he never rendered any services under such agreement, nor made any special preparation for its performance.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff, entered upon verdict of a jury, at circuit

      O. T. Beard, in person, for app’lt; Wood & Morschauser, for resp’t.

       Reversing 39 St. Rep., 30.

   Finch, J.

This action was brought by an attorney, to recover for services rendered to his client. They covered a period extending from September, 1887, to March or April of 1889. During that time a suit was brought for the construction of the will of William Beard, in which the interest of the defendant was quite seriously involved, and a proceeding was instituted for the settlement of the accounts of the executors named in that will. In each of those litigations the defendant was represented by counsel other than Thorn, and the latter participated in the character of guardian ad litem for certain of the infant children of the defendant, whose interests under the will were certainly adverse to those of their father. He was seeking to divert income to himself which otherwise would accumulate for the benefit of the children as remaindermen. During the progress of these litigations there was much of consultation and conversation between the two parties about the will and its construction and the action and accounts of the executors. Upon the entry of final judgment in the'equity suit, an allowance was made to Thorn as guardian of five hundred dollars. He took the money, but was discontented with its amount and presented a bill for seven thousand dollars against the defendant, for five thousand dollars of which he had presented a sworn claim to the court as due to him in the capacity of guardian. The defendant refusing to pay, this action was brought. The courts have held that Thorn’s position as guardian for the infants was inconsistent with any action as counsel for the defendant in the then existing litigations, and refused to permit a recovery for the services claimed to have been rendered ; and that determination was so clearly correct as scarcely to require discussion.

But beyond what was involved in the equity suit and the accounting before the surrogate, there seem to have been two questions raised by the defendant which were important to him, and as to which the interest of his children was identical with his own. These were whether the executors under the will were entitled to commissions not only as such, but also as trustees under the trust provisions of that instrument; and whether a bill of sale for a dredge plant executed for a nominal consideration by the testator to one of his sons could be set aside. A successful result of these inquiries would have necessarily added large sums to the estate and benefited alike the defendant and his children. Thorn claimed to have rendered services in those directions upon the request of the defendant, and has recovered a judgment therefor which is assailed on this appeal, but I am unable to see how it can be sustained.

The two subjects came up while the litigations over the will were in progress. Thorn testifies that he told defendant that neither question was involved in or could be determined by the suit for construction of the will or the accounting of the personal estate which were in progress ; that defendant’s remedy would be by an action thereafter to be commenced to remove the executor who held the bill of sale and restore the subject matter of it to the estate; but that he, Thorn, would not enter upon that litigation unless he could entirely control it.

I quote his testimony : “ I said we will go through this matter,, but when we come to the suit for the accounting and for the discharging of the trustees I am going to do the business in my own name and in my own way, or I won’t do it; you have put. me to a great deal of trouble here, you are tenacious, I will run-your litigation or you will run it; well, he says, I engage you now to ruth that litigation, do you hear ? ' Yes, in my name ? ' ‘Yes.’ Well, I have fished behind the net long enough and I cannot handle myself, and I intend to be where I can protect myself fully, and I want you to talk a great deal less, if you will, Colonel, and let me have my own way a good deal more or less,. I want you to let me alone. Mr. H. B. Haight was present when that conversation occurred, and the thing was discussed thereafter and it was understood that just as soon as we got the judgment perfected and matters straight in this construction suit that, that matter, then fully discussed, was to be started in action, Oliver T. Beard against the balance.

“ Q. Were you posted and prepared to commence that action and carry it through ? A: I think I was as we understand—I knew all about it and I knew how to commence it except in-details.

“ Q. After the completion of that other suit fixing as to income that suit was not commenced ? A. We split.”

He testified again that when the subject of the bill of sale to, defendant's brother came up in a discussion over the accounting he told the defendant. “ to let it alone and it would all come up in the big suit.” It seems to me to be the just result of the testimony that while Thorn was acting as guardian ad litem, for the infants he was also more or less advising defendant in directions-hostile to their interests; that in the course of those discussions the double commissions which might or might not be charged and the bill of sale were talked about; that those matters were incidental and came up at first before the relation of attorney and client was established between Thorn and defendant; that it was-not to be established until after the existing litigations were out of the way and Thorn left unhampered by his position as guardian ad litem; that he refused to be employed in his existing situation and only on condition that he could act in his own, name and in his own way; and that the only employment by defendant to which he anywhere testified was a retainer to bring an. independent suit after the close of the existing litigations. How that suit he never brought. He did not enter upon the stipulated employment. He never even offered to bring it or tendered his services for that purpose.

On the contrary he presented an unjust bill, and then sued upon it, making impossible the future relation contemplated. In other words, he neither performed nor offered to perform the contract of employment to which he testified, but put himself in an attitude toward the defendant which would have justified the latter in refusing his services if .he had tendered them. And beyond that I can discover no evidence that Thorn did any labor or performed any work after the contract of employment and by reason of that engagement in the way of preparation for the future suit contemplated. What he says about the double commissions is this: “ Whether they had a right to single or double commisions was the serious question that he made—I had none. Q. That question never as matter of fact arose at all ? A. Never as yet, because he did not bring that suit” And he says, elsewhere, that he stopped the defendant’s discussion of the subject, saying he knew all about it and was devoting time to it in another very important case. I cannot find that he ever advised the defendant one way or the other upon the question, but kept his knowledge and opinion to himself, evidently intending to wait until the question in some way arose, although apparently it did arise and was decided in the accounting before the surrogate and so came within the duties of the guardian. So far as the bill of sale is concerned he seems to have done nothing and had not investigated the details. It seems to me to be beyond dispute that he neither did the service he was employed to do or made any special preparation for its performance. The question was fairly raised on the trial by a motion for a nonsuit and by an exception to so much of the charge as related to the bill of sale of the dredge plant. We think the nonsuit should have been granted.

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

All concur.