text:
    Joseph Schestanber et al., Resp’ts, v. Manhattan Railway Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    1. Negligence—Contributory negligence—The gates oe the elevated CARS BEING OPEN IS AN INVITATION TO ENTER OAR—LAWS 1881, CHAPTER 399, § 3.
    In an action to recover damages for injuries resulting in death inflicted by the defendant company by starting its train and closing the gate to the car while the intestate was in the act of entering said car, Held, that if the train was standing still, with the gates open, it was an invitation to the deceased that she might enter with safety, as the law requires that when the cars stop at a station, and a gate has been opened, the car shall not start until such gate has been firmly closed. Laws 1881, chapter 399, § 3. That if the train was in that condition, and no signal was given of the intention to start, intestate was not guilty of negligence in attempting to board it. Pauliisch. v. R T. C. and R. B. B. B, 1 N. Y. State Rep., 65G, distinguished.
    '2. Same—Evidence—When not contradictory.
    Two of the plaintiff’s witnesses testified that intestate had one foot on the car and was about to make a move with the other foot to get on the car when the train started with a sudden jerk and she fell in between the station and the car. Reid, that said testimony did not contradict the testimony of other of plaintiff’s witnesses to the effect that she was pushed back and made to fall by the slamming of the gate while she was attempting to board the train.
    Appeal from judgment entered on verdict, in favor of the plaintiff’s from order denying motion made on the minutes for a new trial.

      Davies & Rapallo, for app’lt- Stephen B. Jacobs, for xesp’t.
   Van Brunt, P. J.

This action was brought by the plaintiff as administrator of Annie Schestanber, deceased, to recover damages by virtue of the statute for the death of the plaintiff’s intestate by reason of the negligence of the defendant.

The plaintiff alleges that on the 21st of December, 1883,. while his intestate was attempting to enter one of the defendant’s cars at its station at the corner of Allen and Rivington streets, in the city of New York, through the-negligence of the defendant and its employees, she was knocked down, fell and dragged along the platform of the station by a train of cars of the defendant which had prematurely started, and that the intestate was thereby so injured that she died about nine hours thereafter. At the close of the plaintiff’s case, the defendant moved to dismiss the complaint upon the ground that the plaintiff had failed to show any negligence on the part of the defendant or its employees. This motion was denied and an exception taken.

At the close of the case the learned court charged, at the request of the plaintiff, “ that if this train was standing still, with the gates open, and no signal was given to us of their intention to start the train, it was not negligence on the part of the girl to attempt to board it.” To this charge the defendant duly excepted. After the verdict a motion was made to set aside the same as against the weight of evidence, which was denied, and an exception taken.

These exceptions raise the questions presented upon this, appeal. There seems to have been a conflict of evidence only upon one branch of the case, and that is as to what occurred immediately before the happening of the accident. It appears that on the morning of the 21st of December, 1883, the deceased, who was a girl of fourteen or fifteen years of age, attempted to get on board a train of the Elevated Railroad Company at the station at Rivington and Allen streets, and while attempting to get on board she met with the accident and received the injuries which caused her death upon the same day.

The testimony on behalf of the plaintiff tended to show that one train had passed by without stopping and that this train which the deceased attempted to board came up and entirely stopped; that a number of passengers were on the platform and got on board, and that while the train was at rest and the gate of the third car was open, she placed one foot upon the rear platform of that car and took hold of the iron stanchion or railing; that while she was in this position the car started without notice to her, and the gate was suddenly closed, and the effect was that she was thrown down between the two cars and then thrown out between the car and the platform of the station, and in this way received the injuries which caused her death.

The testimony on behalf of the defendant tended to show that after the other passengers had got on board, the gate was nearly closed, so that there was a space of only about eight inches left open, and that it was while the gate was in this position that this young lady ran across the platform, which was slippery, and attempted to get hold of the iron railing and slipped and fell down between the gate and the platform of the station, and thus received her injury.

The learned court substantially charged the jury that if the theory of the defendants was true in respect to the manner in which the deceased received her injuries the-' plaintiff could not recover. There is no complaint but that in the charge itself the learned court gave the correct rule to the jury, but that an error was made in charging the request above stated.

The evidence given by the guard in charge of the train was as follows:

Q. Was she the last person getting on at that time (referring to the time before giving the signal to start)?

A. I took the passengers on that were there, and did not see her until she ran up and fell.

Q. All the passengers had got on that presented themselves?

A. Yes, sir.

It is claimed that the jury might have believed this testimony, but that according to the judge’s charge, if a signal had not been given to the deceased of defendant’s intention to start the train, apparently everybody had got on board that presented himself, then the deceased was free from negligence in attempting to board the train even if as matter of fact under all the circumstances she was too late; and that the question of the negligence of the deceased defendant on the surrounding circumstances was not to be regulated by the fact that a signal of the intention to start the train was or was not given to the deceased, and that whether or not the signal was given to deceased was not the proper test. Citing the case of Paulitsch v. N. Y. C. and H. R. R. R. Co. (102 N. Y., 280; 1 N. Y. State Rep., 656) as decisive on this point.

In the case cited, the plaintiff, a belated passenger had purchased a ticket at defendants’ depot. Just as she came on to the platform of the station, the conductor, observing that all persons on the platform had boarded the train and that the station platform was clear and empty, raised the drop platform, connecting the cars with the station platform, gave the signal to start and turned to enter •or entered the car. The engineer drew in his head, pulled his lever and the train started. At that precise moment the plaintiff had reached one of the cars, according to her own account, and put one foot upon its steps, and then and not before the train moved, she was thrown down and seriously injured. There were other circumstances in the case showing that she knew that she was late and that she was conscious that the cars had started. The court was asked to charge, in view of these circumstances, that “ when the people who desired to stop at 110th street had left the train, and the persons who were then on the station platform had entered the train, the defendants had the right to raise the drop platform and start the train. ” The trial judge refused to charge this proposition except with the qualification: “Provided that they had given each passenger having a right to enter upon that traínas a passenger, an opportunity to get on board.”

The court held that the first part of the proposition was in all respects entirely sound and correct, but that the qualification practically annulled it, and destroyed it, or, at least, may have dangerously misled. the jury; that the jury might naturally understand it to mean that when the plaintiff had bought her ticket at the office below she acquired, upon the instant, the right to take passage on this particular train, and that the defendants, were bound to know that she was coming and hold the train until her .arrival, and so the conductor was negligent in starting the train at the moment when he did.

The learned court held, therefore, that the qualification was error as the purchase of the ticket gave her no right to delay the train at all, and imposed upon her the duty of presenting herself in time or of waiting for a succeeding train; that the purchase of a ticket gives no right to a passenger except upon the condition of presenting herself for passage before the signal is given for the start, and if she gets on after that it is not negligence as against her that the train starts in obedience to it.

It will be seen from the foregoing statement that the case cited has no application whatever to the question of the plaintiff’s negligence, and that, therefore, it is no authority' against the proposition charged by the court. It is, however, pertinent to the question of the defendants’ negligence .and tends to establish that if the guard’s story is true then that the defendants were not guilty of negligence in starting the train.

The proposition of the charge contains no element of •error. If the train was standing still with the gates open it was an invitation to the deceased that she might enter with safety, the more especially so as the law requires that when the cars stop at a station and a gate has been opened, the cars shall not start until such gate has been firmly closed; (Laws of 1881, chap. 399, sec. 2), and if the train was in that condition and no signal was given of the intention to start, she was clearly not guilty of negligence in attempting to board it. If any other rule were to prevail then no matter how negligent the employees of the railroad might be in starting the train a passenger would be guilty of negligence in attempting to board it, although the train was standing there apparently inviting passengers to enter.

It is however, contended that the learned trial judge erred in denying the motion to set aside the verdict as against the weight of evidence, because the jury were charged that if they believed that the decased was not struck by the gate or pushed from the car by any carelessness of the employees, the verdict must be for the defendant, and that the plaintiff failed to establish by a preponderance of evidence that his intestate was struck by the gate or pushed from the car by the negligence of defendants employees.

It is claimed that all of the plaintiff’s witnesses did not agree in their testimony that she was struck by the gate. One of them testifies as follows: “ She was just about to make a move with the other foot to get on the car when the train started and gave a sudden jerk and she swung backwards and then down between the platform of the car and the platform of the station, and that when she attempted to get on the gate was open.”

Another testified : “ She attempted to get on the car and had one foot on the station and she was about drawing her other foot on the car and the car gave a jerk and she fell in between the station and the car. This witness appears to have been examined by an interpreter, and in answer to the question, “ Do you always know whether she slipped or not?” the interpreter said: “he says all he knows is that she fell by the jerking of the car or the jarring of the car.”

It is claimed that this testimony shows that the plaintiff was not thrown down by the gate nor through being pushed by one of the defendants employees but by the sudden jerking of the train and that therefore under the judge’s charge the plaintiff could not recover if such were the case.

Two other witnesses, upon the part of the plaintiff however, swear, one that the door (meaning the gate) knocked the girl down and that the gate pushed the girl back and she fell, and the other that if the gate had not been slammed she would have had no difficulty in getting on to the car.

The evidence of the first two witnesses does not hy any means necessarily militate against that of the last two-named. They did not swear that she was not struck by the-gate, nor did they swear that she was not pushed back by the gate. They simply swear to their deduction from what, they saw that the girl fell from the sudden jerking of the car. It was for the jury to determine from all the facts and circumstances whether the theory of the plaintiff, was-correct or not. It is urged that the plaintiff’s witnesses-contradicted each other in other material points. But those were questions for the jury, and it was for them to determine as to the nature of this accident.

The case was fairly submitted to the jury; the question at issue was distinctly stated; there was evidence sufficient to justify the verdict; and it should not be interfered with unless plainly contrary to the evidence.

The judgment and order appealed from' should be affirmed, with costs.

Daniels and Brady, JJ , concur.


source: Caselaw Access Project

author: Daniels, J.

license: Public Domain

text:
    Elizabeth G. White App’lt, v. Daniel J. Sprague, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    1. Negligence—Landlord—Liability for non-repairing.
    In an action to recover damages for an injury resulting from the falling of plastering from the ceiling upon plaintiff while she was at work. Held, that if a landlord lets premises and agrees to keep them in repair and lie fails to do so, in consequence of which any one lawfully upon the premises, has been injured he is responsible for his own negligence to the party injured.
    2. Same—Contributory negligence—When question for jury.
    The defendant in answer to complaints about the condition of the plastering had remarked, “that it was no cause for alarm,” and' was not at that time dangerous. It, also, appeared that the eye sight of the plaintiff was somewhat defective, preventing her from fully discovering the condition in which t-lie plastering appeared to be. Held, that whether the plaintiff was heedless or careless in exposing herself to the chance of such an. accident was a question of fact for the jury.
    Appeal from a judgment on the dismissal of a complaint at the circuit.

      George C. Holt, for app’lt; W. Z. Lamed, for resp’t
   Daniels, J.

The plaintiff was employed by the defendant as janitress of the building No. 129 West One Hundred and Twenty-ninth street, in the city of New York. It was-let out in apartments and occupied by different tenants.. By the terms of her employment she was at liberty, to perform services for the tenants whenever it might be desired by them, and on the day in question she was engaged in washing for Mrs. Dishow, the wife of a tenant of part of the premises. The plastering fell from the ceiling, striking-her upon her head and shoulders, and as the evidence tended to establish the fact, inflicted serious injuries upon her. In this action damages were claimed from the defendant as the landlord of the premises, who was obligated to keep them, in repair. This accident occurred on the 23d of March, 1885, and either in the last of February or the first week of March, the defendant’s attention was called to the •condition of the plastering, which at that time had become badly cracked and somewhat threatening. Evidence was given of the fact that he then stated that he would have the plastering attended to right away, although he did not at the time consider it to be dangerous. But he gave the subject no further attention until after the happening of the accident. The evidence concerning these facts was such as to support the inference that the building was either the defendant’s property, or in his possession and under his control as the landlord, and that there were indications in the ceiling that the plastering was in an infirm condition, requiring attention to render it safe, and that the obligation of keeping it in reasonable repair was upon him and not upon the tenant.

Under this evidence, if the facts were as it indicated the case to be, he was chargeable with carelessness, resulting in the production of this injury to the plaintiff. And as she was rightly upon the premises, she had the legal right to look to him for redress, provided she herself was not chargeable with want of care in exposing herself to the risk of the accident. For the legal rule has been stated to be that “if a landlord lets premises, and agrees to keep them in repair, and he fails to do so, in consequence of which any one lawfully upon the premises has been injured, he is responsible for his own negligence to the party injured.” Edwards v. New York and Harlem Railroad Company, 98 N. Y., 245, 248, 249.

That the plaintiff could not as a legal conclusion from the facts be chargeable with negligence herself in pursuing her occupation in the room under the cracked plastering, seems to follow to some extent at least from the judgment •expressed by the defendant, as the result of his observation as to the condition of the plastering “that it was no cause for alarm ” and was not at that time dangerous. Besides that, it appeared from the testimony of the plaintiff that her eyesight was somewhat defective, preventing her from fully discovering the condition in which the plastering appeared to be. Whether she was heedless, or careless in exposing herself to the chance of such an accident from the falling of the plastering was, under the evidence, a fair question of fact for the decision of the jury.

That is the view which has been adopted and followed in other cases involving this inquiry, and by following them this course should have been taken at the trial. Camp v. Wood (76 N. Y., 92); Belton v. Baxter (58 id., 411, 415), where it was declared that “if the evidence is conflicting is cajiable of different interpretations, or the inferences to' be drawn from it are doubtful, it is the province of the jury to pass upon it.”

Upon each of the vital inquiries in the case, it was one-' for the jury and not for the court. The judgment should be reversed and a new trial ordered, with costs to abide the event.

Van Brunt, P. J., and Brady, J., concur.


text:
    Seligman Trier et al., App’lts, v. Edward Hermann et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    Practice—Entry of judgment on offer and acceptance—When not set aside.
    The court is not authorized to vacate a prior judgment entered on the service of a summons and complaint, and an offer of judgment and the acceptance, for the sole reason that the proceedings were taken in that manner, as being preferable to those provided for the recovery of judgments by confession.
    Appeal from an interlocutory judgment sustaining a demurrer to the plaintiff’s complaint.

      Blumensteil & Hirsch, for appl’ts; George H. Yeaman, for resp’ts.
   Daniels, J.

The object of this action was to to vacate and annul a prior judgment recovered in favor of David S. Tuska against the defendants Hermann.

The plaintiffs recovered two judgments against the same defendants upon which they issued executions, but were unable to obtain satisfaction as long as the preceding judgments recovered by David S. Tuska against them stood in the way. His judgment was entered upon an offer served on the same day as the complaint was served in the suit of David S. Tuska against Edward and Moses H. Hermann. The offer was accepted and the judgment accordingly entered. The proceedings in that action were entirely regular, as they were authorized by sections 738 and 740 of the Code of Civil Procedure.

The plaintiff in this action assailed the judgment, however, as invalid under the allegation that the object of entering the judgment on the offer and acceptance was to evade the observance of the statutory requirements made for the entry of judgments by confession. There was no impeachment of the indebtedness upon which the prior judgment had been recovered. Neither was it alleged that it had been collusively or fraudulently entered. The complaint in the preceding action alleged that the debtors, the defendants, made their promissory note on the day preceding the commencement of the suit payable to Morris Tuska or order, on demand, for the sum of $3,500 for value received, and that Morris, Tuska indorsed and delivered the note to the plaintiff. That he had demanded payment of the amount which the debtors failed to make. It was further alleged that the plaintiff had loaned and advanced to the same defendants, at their request, $2,000, on which the sum of $1,500 had been paid, leaving a balance of $500, with interest unpaid, and demanded judgment for these amounts. This complaint was verified, and it was to permit judgment to be recovered in accordance with this statement of the facts that the offer was served upon which the judgment was entered.

The main fact upon which reliance has been placed in support of this action to vacate this preceding judgment is that it was recovered by suit instead of by confession to avoid compliance with what the law had prescribed to render a judgment regular when entered upon confession.

This was not, sufficient under any of the authorities, which have been referred to, to entitle the plaintiffs as subsequent judgment-creditors to maintain this action, for even if the plaintiff in the first judgment brought his action upon the indebtedness to recover his judgment by suit and not by confession to avoid or evade the provisions of the statute regulating the proceedings through which judgment might be confessed, that of itself would not render the judgment so'obtained either fraudulent or collusive, and neither of the authorities which have been referred to in support of the action sustains any other view. But it is plainly "intimated in each of them that the judgment must be collusive or fraudulent, before it can be set aside where it has been recovered in this manner. Such was the conclusion of the court in Ross v. Bridge (24 How., 163). And Beards v. Wheeler (11 Hun, 539), is to the same effect. The case of Moses v. McDivitt (88 N. Y., 62), in no manner considered this point. There the only question was whether the judgment having been recovered in this manner to authorize and protect a usurious transaction, should after-wards exclude the defense of usury, which the court held that it could not do. No authority exists which has been discovered authorizing the court to vacate a prior judgment on the service of a summons and complaint and an offer of judgment and the acceptance, for the sole reason that the proceedings were taken in that manner, as being preferable to those provided for the recovery of judgments by confession.

The complaint in that action stated all that it was required to set forth to, present two legal causes of action. There was no deficiency in it in any respect and so long as the. defendants were willing to permit judgment to be entered. against them as it was demanded in the complaint, and the indebtedness has in no manner been impeached, the court was not authorized in this action to vacate or set ¿side that judgment.

The judgment from which the appeal has been taken .should, therefore, be affirmed.

Van Brunt, P. J., and Brady, J., concur.


text:
    John Hone, Ex’r, etc., App’lt, v. John Watts De Peyster, individually, and as Ex’r, etc., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    Executors and administrators—When liable for costs.
    Where an executor unsuccessfully prosecutes an action in his representative capacity for the maintainance or vindication of his own individual rights, he should be charged with the costs of the litigation. But where he would have individually profited by the litigation to the extent of only a portion (as one-half), of the proceeds, if it had been successful, he is justly chargeable, personally, with one-half of the costs of the action brought by him and in which lie was defeated..
    Appeal from an order directing the payment of the costs -of a litigation between these parties by the. plaintiff personally.
    dr. H. Crawford, for app’lt; C. H. Brewster, for resp’t.
   Daniels, J.

The plaintiff was beneficially interested to the extent of one-half the subject matter in controversy between himself and the defendant in the action, the costs of which he has been directed to pay. There were no debts remaining unpaid against him as executor, and the sole object of the action was the recovery of the demands or property out of which, in case of a successful result, he would, under the will, have received one-half the amount. For that reason, and also upon the charge that the action was brought by him in his character as executor, in bad faith, the application was made to charge him personally with the costs of the litigation in which he had proved unsuccessful. But he denied having brought the suit in bad faith, and stated on the other hand that it was brought in good faith under the advice of counsel, after a, full and detailed statement of the facts, and as there was no further evidence bearing upon the subject of his motive, his answer made in this manner completely repelled and removed the charge contained in the petition, which was made only on belief of the petitioner, and removed the case therefore from the operation and effect of section 3246 of the Code of Civil Procedure.

But as he was the person who was individually to profit by the litigation to the extent of one-half the proceeds, if it had been successful, he is justly chargéable personally with so much of the costs of the action brought by him, and in which he was defeated. The cases of Brockett v. Bush (18 Abb. Pr. Rep., 337); Holdrige v. Scott (1 Lansing, 303); Butler v. Boston, etc., R. R. Co. (24 Hun, 99); Bedell v. Barnes (29 Hun, 589), substantially sustain the principle that where an executor unsuccessully prosecutes an action in his representative capacity for the maintainance or vindication of his own individual rights, that he should be charged with the costs of the litigation. And under this principle the executor should pay one-half the costs of this unsuccessful action. As to the other half, he rightly prosecuted 'the suit in his representative capacity for another person as the beneficiary in the litigation. In that half he had no interest whatever. But if it had been recovered, it would have been solely and wholly the property of another person for whom it was his duty to act as executor. As to the costs represented by that part of the litigation, the executor did no more than his duty, and as he did not act in bad faith he is not liable to be charged with that part of the expense of the litigation. The order accordingly should be modified by requiring him to pay one-half of the costs of the litigation mentioned in the petition instead of all the costs, and as so modified it should be affirmed, without, costs of the appeal.

Van Brunt, P. J., and Brady, J., concur.


author: Van Brunt, P. J.

text:
    Moses Wasserman, Resp’t, v. Seligman Trier et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    3. Vsuby—When not proven—Purchase of note.
    In an action brought to recover the amount of a certain promissory note, the defense was usury. There was evidence tending to show that plaintiff' purchased the note for his brother and with his brother’s money, and that it was only after the note had been protested that he charged himself with the note again and brought suit upon it. Held, there was sufficient to sustain a verdict, that the defense of usury was not established.
    .2. Same—Evidence—What competent.
    The plaintiff was asked what the payee of the note said to him. at the time he bought said note. Held, that the evidence was competent for the purpose of showing that the plaintiff had purchased the note in good faith supposing it was business paper, and had no reason to believe that it had any other character.
    Appeal ¡from judgment in favor of the plaintiff on the verdict of a jury.

      Blumenstiel & Hirsch, for app’lts; Ferdinand Kurzman, for resp’t.
   Van Brunt, P. J.

This action was brought to recover the amount of a promissory note made by the defendants, who were copartners in business under the firm name of' S. Trier & Son, payable four months after date to the order of E. Herman & Son, and endorsed by said E. Herman &- Son, and sold to the plaintiff before maturity.

The defense in the action was usury. The evidence-showed that the plaintiff in this action had exacted twelve, per cent discount from the purchase of the note from E. Herman & Son, and it was claimed upon the part of the-.defendant that it was an accommodation note and had no valid inception in the hands of E. Herman & Son, and consequently was open to the defense of usury in the hands o£ the plaintiff.

Upon the trial the plaintiffs claimed to show that the note was bought by the plaintiff with the money of his brother and for his brother’s account, and that his brother only received six per cent, and that the other six per cent was charged by said Wasserman for his services in the negotiation of the note.

It was also claimed on the part of the plaintiff that the note-had a valid inception in the hands of E. Herman & Son, and-as a consequence the plaintiff could purchase at any price at-price at which he might see fit. It was claimed that the consideration for the note in suit arose from an exchange of notes between Herman & Son and the defendants backward and forward.

These questions were clearly submitted to the jury without any exception or objection on the part of the defendants, and the verdict of the jury must, therefore, be considered conclusive if there was sufficicient evidence to go to the jury upon the questions involved.

At the close of the case the defendants moved to direct a verdict upon two gromids,

First. That the defense of usury had been established beyond a peradventure, and

Secondly. That the plaintiff is not the real party in interest.

It is true that one of the defendants, who was examined as a witness upon his own behalf, testified that he had received no value for the note in question from E. Herman & Son, but the account, showing the exchange of notes, was in evidence, and it appeared that the parties had been exchanging notes for a considerable length of time backward and forward, and from this the jury had a right to infer, notwithstanding the statement made by the defendant upon -the stand that the defendants had received no consideration for this note, that some of the other notes had formed the Basis upon which the note in question was given.

As to the defense of usury, the jury, if they believed the testimony of the plaintiff in regard to the manner in which the note was purchased, and that it was for his brother and with his brother’s money, and that it was only after the note had been protested that he charged himself with the note again and brought suit upon .it, the defence of usury was not established. All these questions were clearly submitted to the jury with distinct and particular instructions upon the part of the court, and the jury having determined these issues in favor of the plaintiff, their verdict cannot be disturbed by this court upon appeal.

The only other question to be considered is an exception to a question wherein the plaintiff was asked what Herman said to him at the time that he bought this note. This evidence was undoubtedly incompetent so far as it tended to bind the defendants to the representation that the paper was business paper, and the jury were so carefully instructed by the learned judge who tried the case at circuit.

The evidence was, however, competent for the purpose of showing that the plaintiffs in this action had purchased the note in good faith supposing it was business paper, and had no reason to believe that it had any other character.

It would appear, therefore, although if the verdict of the jury had been in favor of the defendants it could not have been disturbed, .that there was sufficient evidence from which the jury might find that the note had a valid incention, and that it was not erroneous.

Under these circumstances there seems to have been no error in the conduct of the trial, .and the judgment appealed from should be affirmed with costs.

Brady and Daniels, JJ., concur.


author: Lawrence, J.

text:
    John Garvey, Resp’t, v. Margaret Owens et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    1. Substitution op party succeeding to interest— Supplemental complaint UNNECESSARY—CODE ClYIL Pro., § 757.
    In an action to compel the performance of an agreement to convey real property, the original plaintiff died and his heir succeeded to his interest in the real property in suit. It was objected by the counsel for the defendants that the trial should not proceed, because that under Code Civil Procedure, § 544, it was essential before the action should, be brought to trial that the plaintiff should have obtained leave to serve and have served, a supplemental complaint alleging the material facts which had occurred since the action was at issue, in regard to the death of the former plaintiff, and the facts under.which the substituted plaintiff claimed a'right in his place. Held that the objection was not well taken; that'the order substi- ■ tuting the party succeeding to the rights oí the former plaintiff as such was made under Code Civil. Procedure,- § 757, providing that in case of the death of a sole plaintiff or a sole defendant, if the cause of action survives or continues, the court must upon a motion allow or compel the action to he continued by or against his successor in interest.
    2. Same—Evidence—Materiality op

      Held, that questions tending to show the reason of the substitution and that the interest of the former plaintiff had devolved by operation of law upon the present plaintiff were properly allowed.
    3. Evidence—Proop op signature op subscribing witness—Laws 1883, chap. 195.

      Held, that under Laws 1883. chapter 195, it was not necessary to call the subscribing witness toan agreement, and that proof of the genuineness of the signatures could properly he made by other parties.
    4. Declaration op trust—Need not be sealed—Laws 1860, chap. 322.

      Held, that under Laws 1860, chapter 322, a seal was not necessary to be affixed to an instrument in writing declaring a trust, that it might he effectual
    Appeal from a judgment at the special term, declaring that John Garvey is now the legal owner of the premises described in the complaint, and that upon said John Garvey paying to the guardian of the property and estate of the said Joseph Garvey, the infant defendant, the sum of $3,500, mentioned in a certain agreement dated December 15, 1869, that said infant, Joseph Garvey, by Adolph L. Sanger, Esq., duly appointed special guardian for said in-, fant, convey the said premises to said John Garvey. It was further adjudged that the complaint be dismissed as to the defendant John Owens without costs, and that no costs should be allowed to any party in the action.
    The premises described in the judgment were conveyed to James Garvey, the father of the infant defendant, Joseph Garvey, by James B. Wilson, the special guardian of Mary Jane .Whittock and others, on the 20th of March, 1860. By-deed dated August 9, 1862, James Garvey conveyed said premises to Michael Morrison. On February 1, 1867, Michael Morrison reconveyed said premises to James Garvey. On May 1, 1866, while the apparent title to said premises was in Michael Morrison, John Garvey let and rented the said premises to James Garvey and James Garvey hired and took the same of said John Garvey, at a yearly rent of $600, payable in advance. On December 14, 1869, James Garvey, for the consideration of one dollar, bargained, released and sold to John Garvey the premises in question, and on the 15th day of December, 1869, an agreement was entered into between John Garvey of the first part, and James Garvey, of the second part, for the consideration of one dollar, in and by which said John Garvey released and conveyed the property in question to James. The agreement contained the following clause: “And it is hereby further agreed by and between the said parties that the party of the second part shall and will collect all rents from said described premises, and defray all necessary repairs, taxes and insurance that may accrue out of the said rents. Now this agreement witnesseth expressly, that said party of the second part shall and will grant, release and convey forever to Joseph James Garvey of Tompkins-ville, Richmond county, and the state of New York, a son of the aforesaid John Garvey, for the sum of one dollar, all the above described lot of land, with the building erected thereon, and also all sums of money that may have been .collected for rents or otherwise from the same, after deducting the sum of $3,500, without interest thereon, and also the expenses defrayed for all repairs, taxes and insurance from the day and year first above written until the time when the said Joseph James Garvey shall become at the age of twenty-one years, which will be on the 28th day of October in the year 1881.” James Garvey died on the 13th of October, 1877, and subsequently his widow Margaret married the defendant, John Owens, James Garvey left him surviving the defendant, Joseph Garvey, his only child and heir-at-law, and the defendant, Margaret Owens, his widow, as above stated. Joseph James Garvey, the son of John Garvey mentioned in the agreement of December .15, 1869, became of age on the 28th day of October, 1881, whereupon he brought this action to have it adjudged and decreed that the trust created by the agreement of December 15, 1869, was a valid trust for his benefit, -and that thereby he became seized in fee of said premises, and upon his arriving of age was entitled to .the possession of the said premises or to a conveyance thereof from the defendant, Joseph Garvey, an infant, free from all dower right of the defendant, Margaret Owens, and asking that a guardian may be appointed for said infant defendant to execute such conveyance. He further prayed that an account might be taken of the rents and profits of said premises, from the 15th of December, 1869, to the time of the death of said James Garvey, and that after deducting said taxes, insurance and repairs, and the sum of $3,500 without interest, and adding interest to said balances so found due to the plaintiff he might have judgment therefor against said Margaret Owens and John Owens, etc.
    On the 7th of January, 1886, Joseph James Garvey, the original plaintiff, died, and by an' order of tbis court, dated March 4, 1886, John Garvey, his father, as sole heir at law of the plaintiff, was substituted in his place and stead, and the suit was directed to be continued as heretofore.

      The learned justice before whom the cause was tried at special term, found as conclusions of law that said John Garvey is now the legal owner of said premises, and that upon said John Garvey paying to the guardian of the property and estate of the said Joseph Garvey, the infant defendant, the sum of $3,500, mentioned in said agreement, that said infant, Joseph Garvey, by Adolph L. Sanger, who is appointed the special guardian for said infant, convey the said premises to said John Garvey, and that the complaint be dismissed as to the defendant, John Owens.

      George H. Foster, for app’lt, Owens; R. E. Robinson guardian ad litem for the infant defendant, Joseph Garvey, app’lt; George Q. Genet for the resp’t.
   Lawrence, J.

Upon the trial various exceptions were taken to the rulings of the court. The counsel for the defendants objected, in the first place, to the trial proceeding on the ground that by section 544 of the Code of Civil Procedure it was essential before the action could be brought to trial that the plaintiff should have obtained leave to serve, and have served, a supplemental complaint alleging the material facts which have occurred since the action was at issue in regard to the death of the former plaintiff, and the facts under which the substituted plaintiff claims a right in his place. We are of the opinion that this exception was not well taken.

The order by which the present plaintiff was substituted for the former plaintiff was made not made not under section 544 of the Code nor under section 724 of the Code. It was made under section 757, which provides that: “In case of the death of a sole plaintiff, or a sole defendant, if the cause of action survives or continues, the court must upon a motion allow or compel the action to be continued by or against his representative or successor in interest.” Under that section there was no necessity for serving a supplemental or an amended complaint. For the same reason the objection to the order of substitution was properly overruled.

The sister of Joseph J. Garvey, the original plaintiff, was called as a witness, and was asked: “What time did he die?” This was objected to by the defendants, on the ground that the matter was not in issue. The question was per-' fectly proper to show the reason for the substitution, and that the interest of the former plaintiff had devolved by operation of law upon the present plaintiff.

The witness was also asked, “What family, if any, did he leave ? It was objected to, and the objection was overruled, and the remarks which have been made in regard to the previous exception apply to this.

The objections to the introduction in evidence of the deed from James Garvey to Michael Morrison, and to the deed from Morrison to James Garvey, were also properly overruled. It was necessary to have those deeds before the court for a proper understanding of the cause.

The objection taken by the plaintiff to the question put to the witness Malcolm in regard to the transactions between him and James Garvey were properly sustained, because they did not tend to throw any light upon the relations which James and John Garvey bore towards each other, in respect to the property which is the subject of this litigation.

Exhibits 9 and 10 were not improperly rejected, because there is nothing on the record to show by whom they were made out, nor that James Garvey ever saw them, or had any opportunity of ascertaining whether they were correct or incorrect, and surely they were not competent to contradict the papers which long before had been executed between James and John, and which, so far as the evidence shows, were never canceled or revoked.

The objections to the agreement of the 15th of December, 1869, and to the deed of the 14th of December, 1869, and to the landlord and tenant agreement of May 1, 1886, are equally untenable. Each and all of them related to the property in suit, and tended most strongly to show who was the owner thereof. Under chapter 195, Laws 1883, it was not necessary to call the subscribing witness to the agreement, and proof of the genuineness of the signatures could properly be made by other parties.

So far as the objections taken by the defendants relate to the seals, it. would appear from the evidence of Genet, that the papers were properly sealed, and so far as they relate to the validity of the agreement by which the alleged trust was created, it would appear that a seal is not necessary for the purpose of creating the trust in question. See Laws 1860, chap. 322, p. 547.

The motion to dismiss the complaint against the defendants Margaret Owens and Joseph Garvey was properly denied, the plaintiff having at that time established a jprima facie right to the property, and those defendants each claiming to have, and having an apparent interest therein.

We do not regard the refusal of the learned justice to receive in evidence the letters of administration upon the estate of James Garvey as erroneous, as all the parties who were ultimately interested in his estate were before the court.

The objections at folio 86 of the case to the questions put to the witness Von Lecucen, in regard to the offer of James Garvey to sell the property were properly overruled, . because of immateriality.

We have looked at the other objections and exceptions-to the rulings of the court upon questions of evidence, and do not regard any of them as weU taken.

Upon the whole case we think that the evidence supports-the findings of fact and conclusions of law, which were made at special term, and that the exceptions to those findings, and to the refusals of the court to find, cannot, therefore be sustained.

The judgment must be affirmed, with costs.

Bartlett, J., concurs.


author: Bartlett, J.

text:
    Tracy Coit et al. as Executors of Penelope M. Coit, v. Roswell G. Rolston et al. as Executors and Trustees of Cornelia Minturn, Deceased. Mary M. Collins et al. v. The Same.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    1 Legacies—When they vest.
    Where, in a will, there is no gift, but a direction to executors or trustees-to pay or divide upon the happening of an event at a future time,, the-legacy will not vest until then But, This rule only applies where beyond the direction for future distribution, there are no words and no-provisions which import a present or vested gift or indicate such an intent.
    2. Same—When postponed fob the benefit of the estate.
    If, upon the whole will, it appears that the future gift is also-postponed to let in some other interest, or for the benefit of the estate, the interest is vested notwithstanding the enjoyment is postponed.
    3. Same—Will—Construction of.
    Cornelia Minturn died leaving a last will, in which, after leaving certain specific bequests, the testatrix provided as follows: “Eighth. I give, devise and bequeath unto my said executors all the rest of my estate, both real and personal * * * to hold the same * * * in trust for the uses and purposes following, viz.: To pay the entire net income thereof semi-annually to my brother, John 0. Minturn, during his natural life, and on the death of my said brother, John C Minturn, to pay to my cousin, Penelope Coit, the sum of $5,000, to pay to my cousin Ííiobe M„ Abbott, the sum of $5,000 * * * In case enough money shall not be -¡realized by my said executors tq enable them to pay in full the legacies, mentioned in this eighth item of my will, I direct that all said legacies shall abate ratably, in proportion to the respective amounts thereof And if, after paying all of said legacies in full, there shall be any residue in the-the hands of my executors I direct them to pay such residue to such of the following nieces of mineas shall survive me * * *• .” Coit and Abbott died before the brother John. Meld, that the testatrix manifested no intention that futurity should attach to the substance of the gifts to Coit and Abbott; that the sifts were postponed in payment for the benefit ■of the estate; that they vested at the death of the testatrix.
    4. Same—Presumptions—Court favors vesting of legacies.
    The estate of the testatrix appearing from the will to be both personal and real, and there being nothing to show that the personalty had not always been amply sufficient to pay the legacies whenever they should he payable, Held, that the presumption was that it had always been sufficient if any presumption was to be indulged on the subject, and it was necessary to sustain the conclusion that the legacies were vested; that the court favored vesting of legacies.
    Controversies submitted under section 1279 of the Code.

      Franklin Paddock, for the pl’ffs, Tracy Coit et al.; Irving Paris, for the pl’ffs, Mary M. Collins, et al.; B. F. Lee, for def’ts.
   Bartlett, J.

The defendants, who are the surviving executors and trustees under the will of Cornelia Minturn, deceased, stand indifferent in this litigation, while tho two sets of plaintiffs represent conflicting interests.

Both controversies can most conveniently be considered together.

Cornelia Minturn died on September 29, 1882, leaving a last will and testament in which, after making certain specific bequests, the testratrix provided as follows :

Eighth, I give, devise and bequeath unto my said executors all the rest of my estate, both real and personal, of' .whatever kind or description and wheresoever situate, to hold the same together with the share in the estate of my father hereinbefore mentioned, intrust for the uses and purposes following, viz.: To pay the entire net income thereof semi-annually to my brother, John C. Minturn, during his-natural life.

And on the death of my said brother, John C. Minturn, to pay to my cousin Penelope Coit (widow), the sum of five thousand (5,000) dollars; to pay to my cousin Mobe M. Abbott, the sum of five thousand (5,000) dollars.”

Then follow a number of similar bequests to other perons and to corporations, and then the eighth subdivision of the will continues:

“In case enough money shall not be realized by my said executors to enable them to pay in • full the legacies mentioned in this eighth item of my will, I direct that all said legacies shall abate ratably in proportion to the respective amounts thereof.

And if after paying all of said legacies in full, there shall be any residue in the hands of my executors, I direct them to pay such residue to such of the following nieces of mine as shall survive me, viz.: Mary M. Collins, Ellen Collins, Margaret Collins, Caroline M. Verdi, Rebecca M. Smith, Elizabeth Minturn, Mary. Minturn and Mary O’Rourke,, share and share alike.”

Penelope Coit and Mobe M. Abbott died before John C. Minturn, who died on October 10, 1886.

The principal question presented for determination is whether the legacies to Penelope Coit and Niobe M. Abbott became vested upon the death of the testatrix, or were merely contingent, so that they lapsed by reason of the death of the legatees before the life tenant.

The residuary legatees who are the plaintiffs in the Collins case, invoke the rule that where there is no gift, but by a direction to executors or trustees to pay or divide upon the happening of an event at a future time, the legacy will not vest until then, Warner v. Durant (76 N. Y., 133). This rule, however, is not without qualifications. “It applies, only,” says Judge Pinch, in Smith v. Edwards (88 N. Y., 92, 105), “where beyond the direction for future distribution, there are no words and no provisions which import a present or vested gift, or indicate such an intent. It does not control where the language of the will, while not expressly saying, “ I give and bequeath,” does yet plainly import a present gift intended to vest immediately without reference to the clause of distribution.” And the rule is subject to the still further limitation, that although there be no other gift than is indicated by the direction to pay or distribute in the future, yet if the enjoyment of the gift is postponed to accommodate the estate, or to enable it to meet any other burden first imposed upon it, this is regarded as a decisive circumstance in favor of the immediate vesting of the legacy. The illustration given by Mr. Jar-man on this point has received the approval of courts of the highest authority. “If land be devised to A for life, remainder to B in fee, charged with a legacy to 0, payable at the death of A, the legacy will vest instanter; and, consequently, if C die before the day of payment, his representatives will be entitled; the raising of the money being evidently deferred until the decease of A in order that he may, in the meantime, enjoy the land free from the bur-then.” (1 Jarman on Wills [5th Am. ed.], 835), and in Packkam v. Gregory (4 Hare, 396), the doctrine on this subject is stated to be that if upon the whole will it appears that the future gift is only postponed to let in some other interest, or as the court has commonly expressed it, for the benefit of the estate, the interest is vested notwithstanding the enjoyment is postponed. This rule was applied, and this decision of Vice-Chancellor Wigram was cited with approval, by the court of appeals in Loder v. Hatfield (71 N. Y., 92, 100).

Applying it to the will now under consideration, we find that the gifts to Penelope M. Coit and Niobe M. Abbott involved no condition or contingency or uncertainty as to who should take; that the testatrix manifested no intention that futurity should attach to the substance of the gifts; and that the gifts were evidently postponed in payment solely in order that John C. Minturn might enjoy a life estate in the property from which they were to be derived. This was ''for the benefit of the estate,” within the meaning of the authorities, and the legacies were therefore vested

In behalf of the residuary legatees, it is insisted that the legacies could not vest until the death of John C. Minturn, because the testatrix left the estate, real and personal, to her executors to hold, and pay him the net income thereof during his life and ón his death to pay the several legacies •out of money to be realized by such executors. The argument is that the fund out of which the legacies were to be paid was not to come into existence until the decease of the life tenant There would be force in this contention if the property from which the legacies were to proceed was real estate, as in the leading cases cited by the residuary legatees on this point Vincent v. Newhouse (83 N. Y., 505); Delaney v McCormack (88 N. Y., 174); and Shipman v. Rollins (98 N Y 311) Here, however, according to the will, the estate of the testatrix was both personal and real, and there is nothing to show that the personalty has not always been amply sufficient to pay the legacies whenever they should be payable. The presumption is that it has always been sufficient, if any presumption is to be indulged in on the subject and is necessary to sustain the conclusion, that the legacies are vested, for the courts strongly incline to adopt that view which favors vesting, if they can do so without disregarding the plain provisions of the will. See Smith v. Edwards, 88 N. Y., 92, 109.

There must be judgment for the plaintiffs in the Coit suit and for the defendants in the ColBns suit.

Daniels and Brady, JJ., concur.


text:
    Charles A. Clegg, App’lt, v. The New York Newspaper Union, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    1. Appeal—From judgment entered on the report of a referee— Matter for consideration when record contains no evidence.
    Upon an appeal from a judgment entered upon the report of a referee, where the record contains none of the evidence, the only question for consideration is whether the report shows facts inconsistent with the conclusions of law.
    2. Same—Consideration of issues not raised by the pleadings.
    Against the claim that under the issues raised by the pleadings certain of the findings, of the referee were improper: Held, that the court was hound to assume that there was evidence to sustain such findings and that it was admitted without evidence, whereupon it became the duty of the referee to pass upon the evidence, notwithstanding it may have been contrary to the issues presented by the pleadings.

      3. Contract—Terms of—Compliance with.
    Where the plaintiff contracted with the defendants for advertising space in their columns and that this space should be used under certain rules" imposed by them- Held, that it was immaterial whether or not he had ever heard of the rules or been informed of their character; that he was bound to acquaint himself with their particulars in view of the fact that he contracted to' be guided by them.
    4. Same—Terms of—Alteration not allowed when.
    That the propriety of the rules and the purposes for which they were adopted were immaterial, that the parties having agreed to be guided by them in reference to the subject matter of the contract could neither of them arbitrarily set them aside.
    5. Same—What is not breach.
    That the defendants were in no way bound to accept orders obtained in violation of the contract, and their refusal to accept them was no violation of the contract.
    6. Judgment—Presumption in favor of its correctness.
    That upon an appeal the judgment appealed from would not be reversed unless for reason shown, every presumption being in favor of its. correctness.
    Appeal from judgment entered on report of referee.

      W. W. MacFarland, for app’lt, Horace Bussell, for resp’t.
   Van Brunt, P. J.

The record upon which this appeal was argued contains none of the evidence and this appeal is based upon alleged errors contained in the conclusions of law of the referee,derived from the facts found by him. There being no evidence in the record, the only question which can be considered upon this appeal is: Does the report-show facts which are inconsistent with the conclusions of law, (Tomlinson v. Mayor, etc., 44 N. Y., 601), unless therefore the report shows affirmatively that the conclusions of law are erroneous, the judgment must stand.

It is claimed upon, the part of the plaintiff that under the-issues raised by the pleadings certain findings of the referee were improper. This question, however, cannot be considered because, notwithstanding the fact that such findings, might not be justified by the issues raised by the pleadings, the court is bound to assume that there was evidence to sustain such findings and that such evidence was admitted without objection. Whereupon it became the duty of the-referee to pass upon such evidence, notwithstanding it may have been contrary to the issues presented by the pleadings.

The facts found by the referee are in brief as follows:

That the plaintiff on the. 3d of May, 1816, entered into an argument with the defendants, who had associated themselves together and were doing business at a common office-in the city of New York under the name or style of the American Newspaper Union of co-operative newspapers as follows:

New York' Newspaper Union.
Chicago Newspaper Union.
Milwaukee Newspaper Union.
Aikens Newspaper Union.
Southern Newspaper Union.
St. Paul Newspaper Union.
New York Office of the Lists of Co-operative Newspapers.
E. W. FOSTER, Special Agent,
148 and 150 Worth Street.
Office of the New York Newspaper Union, ) New York, May 3, 1876. j

Mr. Charles A. Clegg, New York:

Dear Sir—I will execute your orders to amount of $50,-000 (fifty thousand dollars) gross,fin the American Newspaper Union lists, subject to usual rules and regulations on •demand, for fourteen thousand dollars ($14,000) payable $1,000 down, $2,000 July 1st, next, and $1,000 monthly thereafter till paid, or at least as fast as the advertising •expires.
Orders in excess of $50,000 previous to April 1, 1877, will be taken at 25 per cent, of gross rates.
A. J. AIKENS,
President.

That disputes having arisen between the parties, the plaintiff on August 1, 1876, at the city of New York, ad-' dressed to the said Aikins the following communication, upon receipt of • which and on the same day the said Aikins indorsed thereon: “Accepted, August 1, 1876. A. J. Aikins, President.”

Charles A. Clegg, Advertising Agent, Tribune Building. Address P. O. Box 519.
New York, August 1, 1876.

A. J. Aikins, President American Newspaper Union, 148 and 150 Worth street, City:

Dear Sir—I hereby agree to carry out the contract for' $50,000 (gross) worth of space made with you in the American Newspaper Union lists May 3, 1876, by paying $1,000 cash, and giving my seven notes for the balance, payable $2,000 October 3, $1,000 November 2, and $1,000 December 2, in 1876; also $2,000 January 1, $1,000 February 3, $2,000 March 2, and $3,000 April 1st, in 1877, on your agreeing to carry out the following conditions, viz:
1st. It is understood that you have given me as low rates as you have to any New York advertiser, agent or agency, and should you give any one a lower rate during the continuance of this contract, you are to make this equally low.
2d. If I have not used up all of said space prior to April 1, 1877, then I am to be allowed to continue inserting advertisements until the space is all used, and should I require any additional space on orders taken before 1st April next, I am to have said extra space at twenty-five per cent of gross rates, by paying cash with each order.
3d. All of this $50,000 worth of space is to be charged at gross rates.
4th. You are not to receive any more advertisements from George W. Niles or his agents, or sell him any space.
5th. As there is a disagreement between us as to the contracts made in your and A. N. Kellogg’s lists prior to May 3d last, I am to retain the amount of $6,766.04 (for which you have rendered me bills), until the completion of the balance of said contracts, when Mr. Foster and myself are to write out a full statement of our respective claims,' and you agree to pass upon the same impartially. Should your decision not prove satisfactory to me, then it is mutually agreed to have the same adjusted by the courts. Hereafter, I am to pay you monthly on the balance of said contracts until they are completed.
Respectfully yours,
CHARLES A. CLEGG.

Sixth—That the plaintiff paid to the defendant Unions the sum of $13,000, mentioned in said communication of August 1st, 1876, and furnished to them numerous advertisements for insertion in the space so secured by him, and the-defendant Unions continued to receive ana publish such advertisements until on or about April 11, 1877. when they. stopped the publication of some of them.

Seventh. That one of the “usual rules and regulations referred to in the said communication of May 3, 1876, was a requirement by the defendant Unions, that all agents, who purchased space for the insertion of advertisements in the list of newspapers controlled by said Unions, and obtained from- advertisers advertisements to be so inserted, should charge and collect from such advertisers for such insertion the price or rate from time to time fixed by said Unions, and published by them for the information of the public and the guidance of such agents.

Eighth. That in no instance did the plaintiff after May 3, 1876, charge to or collect from the advertisers whose advertisements he secured and gave or offered to the defendant Unions for insertion in the space in said communication of May 3, 1876, mentioned, the price or rate at the time of securing the same fixed and published by said Unions, but on the contrary, in all instances, he charged and collected a lower price or rate. ■

'Ninth., That between August 1, 1876, and April 11, 1877, the plaintiff made to the defendant Unions no monthly-payments on the balance of contracts mentioned in the clause marked “fifth” of said communication of August 1, 1877. '

Tenth. That the obligation of the plaintiff to adhere to such published rates and to make such monthly payments was not at any time excused or waived by the-defendant Unions.

Upon these facts the referee found as conclusions of law that the communications of May 3 and August 1, 1876, constituted a valid contract between the plaintiff upon the one side, and the defendants jointly and severally on the other side, and

That in and by said contract, the plaintiff undertook and agreed, in obtaining and furnishing to the defendant Unions advertisements for insertion in their lists, to obey and conform to their usual rules and regulations, one of which was that all agents should charge to advertisers the prices or rates from time to time fixed and published by said Unions, and undertook and agreed to make to the defendant Unions monthly payments on balances of contracts made by him prior to May 3, 1876. That the performance of such undertakings and agreements, and each of them, on the part of the plaintiff, was a condition precedent to performance by said Unions of said contract on their part, and that the plaintiff failed to perform either of said conditions, and dismissed the plaintiff’s complaint.

It is urged upon the part of the appellants that the conclusion of the referee is erroneous, because it is not stated for what reason the defendants stopped the advertisements, and because it does not appear that the plaintiff was ever informed of the rules and regulations of the defendants or ever heard of them, or that the plaintiff’s misconduct had anything to do with the violation of them by the defendant, nor does it appear that the defendants ever sustained any damage by reason of any disregard of them, and because it does not appear how much lower the plaintiff charged for the advertisements which he procured and asked to be inserted, than the rates fixed by the rules and regulations of the defendants.

_ It is to be observed, upon the- consideration of these questions, that the plaintiff claimed the money which had been paid by him to the defendant upon the ground of a breach of the agreement made by the defendants with himself in respect of this advertising. It has been found by the referee, and we must assume that it was found upon competent proof and that such proof was properly received, that one of the usual rules and regulations referred to in the communication of May third was a requirement that all agents who purchased space for the insertion of advertisements in the lists of newspapers controlled by said-unions, and obtained from advertisers advertisements to be so inserted, should charge and collect from such advertisers for such insertion the price or iate from time to time fixed by said unions, and published by them for the in- ■ formation of the public and the guidance of such agents.

The plaintiff having contracted in view of such rules and regulations, it is entirely immaterial whether he ever heard of them or was informed as to the character of such rules and regulations. He was bound to acquaint himself with their particulars in view of the fact that he contracted to be guided by them; and if they existed, and he was in-, informed of them, there was no evidence but that it was because of his own negligence. The terms of the contract were explicit that it was made subject to the rules and regulations. The findings of the referee is that such rules and regulations existed, and the finding states what such rules and regulations were. ’

The referee then goes on and finds that in no instance, from the time of the inception of this contract, did the plaintiff comply with the rules and regulations,but in every instance in which he tendered advertisements to the defendants for insertion, he violated those rules. Now, it is entirely immaterial whether these rules were just, or whether they were proper, or for what purpose they were adopted. The parties had contracted to be guided by them in reference to the subject matter of this contract, and they could not be arbitrarily set aside by the will of either party. The defendants had agreed to do certain advertising when procured according to these rules and regulations.

The finding of the referee was that the plaintiff never had procured any advertisements according to these rules or tendered the same to the defendant for insertion. It is true that the defendant did do a considerable amount of advertising for the plaintiff under the contract. - But it is also found by the referee that the obligation of the plaintiff to adhere to the published rates of the defendants, according to the rules and regulations, was never waived or excused by the defendants.

Under these circumstances, when advertisements were tendered to them which had been procured in violation of the rules and regulations of the defendants, they were justified in refusing to insert such advertisments or to continue the same. The plaintiff having contracted to be governed by these rules and regulations, was bound by his contract, and he could not put the defendants in the wrong and claim that they had been guilty of a breach of their contract by asking them to take advertisements which had been procured by him in direct violation of the obligations of his contract. The defendants were not bound in any way to accept the orders which had been obtained in violation of the contract and their refusal to accept such orders, as already stated, was no violation of the contract, and until the defendants have violated their contract the plaintiff is in no condition to recover damages therefor.

It is not necessary to discuss here the fact that it does not appear how much lower than the rates fixed by the rules, the plaintiff procured advertisements which he tendered to the defendants for insertion, because if the plaintiff is to claim that the difference was not substantial, in order that he may reverse the finding of the referee it was necessary that he should show such fact by the evidence, every presumption being in favor of the correctness of the judgment, and no presumptions will be indulged in for the purpose of its reversal. Even, however, if the variations were slight, they would have justified the finding of the referee from the fact, if the fact was true, that in no case did he comply with the rules and regulations which were to govern this question of rates. The contract was reasonably clear and explicit upon this point. The plaintiff was to send in from time to time advertisements to the defendants to be published in the space purchased by him. As to each of these orders their publication by the defendants was subject to the usual rules and regulations and it appearing what those rules and 'regulations were, no order taken by the plaintiff in violation of those rules was entitled to insertion. As has been already stated, both by the learned referee, and also in this opinion, it is not necessary to consider here what the legal position of the parties with reference to the contract as a whole would have been, had the plaintiff occasionally taken an order at less than the usual rates, and the defendants had refused to accept any others thereafter, though taken at the proper rate, inasmuch as every order given by the plaintiff was taken by him at less than the card rates.

Under such circumstances there seems to have been a direct violation by him of his part of the contract and the refusal of the defendants to accept such advertisements can form no basis, whatever, for claiming that the defendants have failed to comply with their part of the agreement.

It is urged that it is a great hardship that these defendants should retain the money of the plaintiff without performing any services therefor. If they are enabled so to retain this money it is simply because the plaintiff has persistently violated his contract and refused to comply with its conditions.

Under these circumstances it is difficult to see how it is. possible for the plaintiff to claim damages of the defendants when there is no evidence that they have failed to comply with their obligations as contained in the corn-tract.

The only other question to be considered is the question in regard to costs. This question was considered apparently with great care by the court below, and the allowance of the different bills of costs seems to have been justified by the peculiar facts of the case and the court should not interfere with the result arrived at.

The judgment and orders appealed from should be affirmed, with costs.

Brady and Daniels, JJ., concur. ■


text:
    Harriet E. Griswold, App’lt, v. Billings P. Learned, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    1. Report op referee—What consideration due to, on appeal.
    Upon an appeal from a judgment entered upon the report of a referee rendered upon conflicting evidence. Held, That the result of the referee’s-judgment was entitled to great weight, he having had the witnesses before mm, and being much better able to judge as to the degree of credence which should be given to their testimony than an appellate court which saw only the record.
    2. Evidence—Consideration due to uncontradicted.
    That the testimony of a witness which was unimpeached and uncontradicted, was not on that account entitled to unconditional acceptance; by a court or jury, that it should be viewed in relation with the surrounding circumstances.
    3. Same—Competency op.
    Questions tending to shake the belief in the credibility of a witness are competent.
    4. Same—Question as to contents op letter—Competency op
    That a question as to whether a letter had been written, and not. calling for the contents thereof was competent.
    5. Same—Questions as to contents op letter—When incompetent.
    That a question as to the contents of a letter, notice for the production of which had not been given, was incompetent, but that the evidence given in reply being such as not to prejudice the opponent of the party asking such question, the error did not demand a reversal of the judgment.
    Appeal from a judgment entered upon the report of a referee. It is claimed by the plaintiff in her complaint that the defendants, being partners as stockbrokers, on the 15th of May, 1878, purchased with the moneys of the plaintiff, at her instance and request, certain four per cent, coupon bonds of the United States of the aggregate par value of $3,-500, and thereupon and thereafter retained the same in their possession. She then alleges that she has duly demanded from said defendants the said bonds, with the coupons belonging thereto, but that the defendants have wholly failed and refused to deliver the same, and converted them to their own use. After alleging that the market value of the bonds on the day of demand was twenty-three per cent, over and above the par value thereof, she demands judgment for their value with interest thereon. The defendant Noyes did not answer the complaint, but allowed the action to go by default. The defendant Learned, however, answered, denying all the allegations in the complaint, except that the defendants at the time mentioned were stockbrokers transacting business in the city of New York; and alleging for a further defense that the cause of action did not accrue within six years before the commencement of the action.
    The referee found that the defendants on the 15th of Hay, 1878, were partners in business; that the partnership relation continued until 1881, and that Learned then continued said business until the spring of 1884 when he retired; that it was no part of the business of the defendant Learned, or of his firm in 1878 to undertake the custody or management of investment securities belonging to other persons. He also finds that the securities mentioned in the complaint were purchased by said firm for investment for the plaintiff, and that after the purchase thereof the same were delivered to the plaintiff or to her husband and agent, William N. Griswold, at whose request the purchase had been made, and that although a petty balance of premiums and commissions was not at the moment paid by the plaintiff or her husband, no hen thereon was asserted by the firm, nor were the bonds detained or attempted to be detained on that account, that after May, 1878, the said bonds were not in the custody or possession of the defendant, Learned, not with his knowledge or consent at his office, not with his then copartner, nor was any trust respecting the same or the care thereof even assumed or undertaken by the defendant Learned, or by any firm of which he was a member or with his knowledge .or consent; that no collection of interest or principal, and no disposition of the bonds or of any part of the same or of any proceeds thereof has ever been received or enjoyed by the defendant Learned, or by any of the firm of which he was a member or with his knowledge, authority or consent; and that in May, 1878, and during the entire period of more than seven years thence-forward down to the 30th of September, 1885, when a formal demand was made upon him preliminary to this action, there was never any demand upon or notice to the defendant Learned for or concerning such bonds or the interést or proceeds thereof. He finds as conclusions of law that at the commencement of this action Learned was not and had not been a trustee or depositary of said bonds for the plaintiff, and did not convert to his use the same or any sum realized therefrom; and that at the time of the commencement of this action he was not responsible to the plaintiff for or in respect to said bonds or any collection from or conversion of the same as averred in the complaint, and he directed judgment in favor of said defendant, dismissing the complaint on the merits, with costs.

      Royal S. Crane and Luther R. Marsh, for app’lt; Clifford A. Hand, for resp’t
   Lawrence, J.

It will appear from the statement which has been made of the case that the question presented for the consideration of the referee was one purely of fact. With the exception of the clerk from Drexel & Morgan’s office, and the brokers, all the witnesses on the part of the plaintiff were either interested or had been interested in the subject in controversy directly or indirectly.

Upon the part of the defendant it is also true that he was the only witness who did speak or could speak as to the originartransaction, and he most flatly contradiccted the plaintiff’s husband and Noyes in respect thereto, denying that he had ever received possession of the bonds after they had been purchased or that he he knew that they had been received, if they were received, by his copartner Noyes.

Under these circumstances we are of the opinion that the result of the referee’s judgment is entitled to great weight, he having had the witnesses before him and being much better able to judge as to the degree of credence which should be given to their testimony than an appellate court which only sees the record.

Noyes himself admits that “we (i. e., Learned and himself) did not separate as good friends.” And we think that a perusal of his testimony will show that he was extremely friendly to the plaintiff and her husband.

In respect to the interviews between Noyes and Learned at Mr. Hand’s office, Noyes is strongly contradicted, both by Mr. Hand and by the defendant Learned. It seems to us that a jury with this evidence before them would have been justified in rendering a verdict for the defendant, and that the decision of the referee is entitled under all the circumstances to the same respect by an appellate court as the verdict of a jury.

The evidence given by the brokers at pages 43, 44, 45 and 48 of the case as to the custom existing in the city of New York where stock has been purchased for investment and not entirely paid for, we do not regard as affecting the case; because the allegation and contention of the plaintiff is not that the defendants assumed to retain possession of the bonds, because they had a lien upon them for a small balance of their charges, but that they retained the same in their possession to take care of them.

We think it a suspicious circumstance that the husband of the plaintiff who, it appears, had two safes of his own, should have left the bonds in the custody of the defendant from May 15, 1818, down to September, 1885, when the demand was made by the plaintiff’s attorney, without collecting any interest thereon, and without making any inquiry in regard to the bonds save and except as he says, possibly once or twice he spoke to Learned to ask if they were all right.

Upon the facts proven therefore, and from the circumstances surrounding the case, we are of the opinion that the judgment of the referee should not be reversed unless some of the exceptions taken to the admission or rejection of evidence by the plaintiff can be maintained as relating to matters substantially affecting the plaintiff’s rights.

It is said by the plaintiff’s counsel that the cases are very rare where a court or jury may absolutely disregard the uncontradicted testimony of witnesses upon a vital point at issue, and find directly contrary to the testimony; and that even when the circumstances or the testimony are open to suspicion, they are careful not to do so; and he cites Lomer v. Meeker (25 N. Y., 363), and Elwood v. Western Union Tel. Co. (45 N. Y., 552). We do not think that the rule laid down in those cases is applicable here. While neither Griswold nor Noyes was impeached, they were certainly both of them contradicted by Learned, who, although an interested witness, was entitled to belief from the referee, if the referee, from seeing the witnesses, deemed him the more worthy of credence.

Besides, in the case of Elwood v. Western Union Tel. Co. (supra), the court, after stating the general rule that where unimpeached witnesses testify distinctly and positively to a fact and are not contradicted, their testimony should be credited, and have the effect of overcoming a mere presumption, goes on to say: “But this rule is subject to many qualifications. There may be such a degree of improbability in the statements themselves as to deprive them of credit, however positively made. The witnesses, though unimpeached, may have such an interest in the question at issue as to affect their credibility. The general rules, laid down in the books at a time when interest absolutely disqualified a witness, necessarily assumed that the witnesses were disinterested. That qualification must, in the present state of the law be added. And,furthermore, it is often a difficult question to decide when a witness is, in a legal sense, uncontradicted. He may be contradicted by circumstances as well as by statements of others contrary to his own. In such cases courts and juries are not bound to refrain from exercising their judgment and to blindly adopt the statements of the witnesses for the simple reason that no other witness has denied them, and that the character of the witness is not impeached.” See also Kearney v. Mayor, etc. (92 N. Y., 621), and Nicholson v. Connor (8 Daly, 215).

Tested by the rule thus explained by the court of appeals it seems quite clear that Noyes and Griswold were contradicted in this case, and that the referee was justified in exercising his judgment, and was not bound blindly to adopt the statements of those witnesses.

The exception taken, at folio 76 of the case, to the question put to Mr. Griswold as to when the suit by Learned against him was brought, does not avail the plaintiff. The question was quite proper as showing the relations between Learned and the plaintiff’s husband, and as bearing upon the motive the witness might have in testifying against the defendant Learned and as showing his feelings towards him.

The objection to the question put to the defendant Learned: Have you had in your personal possession any of the U. S. bonds belonging to the plaintiff at any time?” was not well taken. It tended to show what the real transaction was, and also was in the direct line of the defense set up in the answer. It also tended to contradict the testimony of the plaintiff’s husband in regard to what Learned had said about the bonds being all right. The same remark disposes of the objection at folio 118.

The objection to the question put to the defendant at folio 120 was also properly overruled. The fact that Mr. and Mrs. Griswold had never mentioned the existence of Exhibit Ato the defendant during the seven years in which it is claimed the bonds were in his possession, was quite pertinent as bearing upon the credibility of the witness Griswold’s statements who, as we have seen, the court of appeals say might be contradicted by circumstances as well as by statements of others contrary to his own.

The objection to the question whether Learned had ever collected or known of any collection of any of the principal or interest of said bonds received from or bought for either Mr. or Mrs. Griswold, we do not regard as well taken. That tended to elicit a circumstance strongly contradictory of the probability of the plaintiff’s husband’s and Noyes’ story.

The objection to the question put to the defendant: Did you then write a letter to Mr. "William N. Griswold?” was not well taken, because it did not call for the contents of the letter.

The question at folio 125 does, however, call for the contents of the letter, and inasmuch as it does not appear that notice had been given to the plaintiff to produce the letter, we regard the exception as well taken. But as it appears from the answer that the contents of the letter did not relate to this transaction, we are not prepared to say that the evidence injuriously affected the rights of the plaintiff, nor that there should be a reversal on that ground.

The objections taken to the questions put to Learned and to the brokers as to the course of business in regard to stocks bought for investment, were properly overruled, because if it was no part of the business of a broker to keep investment securities, Noyes, who the plaintiffs claim, took the principal part in the transaction involved in this suit, had no tight to bind his partner by receiving investment securities for deposit for safe keeping, and the testimony of the brokers also tended to corroborate that which Learned had already given without objection.

As the question put to Mr. Noyes, at folio 168, was not limited to the time during which he continued to be Learned’s partner, the defendant’s objection thereto was properly sustained .

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

Van Brunt, 0. J.. and Potter, J., concur.