text:
    BRIDGET COYLE, Administratrix, etc., Respondent, v. THE LONG ISLAND RAILROAD COMPANY, Appellant.

      Negligence —duty of a mil/road company to Tceep a flagman or gate at a crossing — right of the jury to consider its omission soto do — pi'oper form of the charge of the court m regard tTwreto.

    Although in an action to recover damages for injuries sustained while crossing a railroad track, the omission of the company to station a flagman at the crossing may be proved and considered by the jury in determining whether under all tlie circumstances of tlie case, including the absence of the fjagman, the company exercised reasonable care and prudence in running the train at the time and place in question, yet, it is error for the court “to charge that if the jury finds that it was the duty of the company, under the circumstances of the case, to keep a flagman at the crossing, as a matter of precaution to warn those approaching it, its omission to perform that duty is negligence which may make it liable for the injuries sustained.
    The same rule applies to an omission of the company to erect and keep a gate at the crossing, and as to the charge of the court in respect thereto.
    Appeal from a judgment in favor of the plaintiff, entered on the verdict.of a jury, and from an order denying amotion for a new trial made upon the minutes of the justice before whom the action, was tried.

      E. B. Hinsdale, for the appellant.

      Dennis McMahon, for the respondent.
   Brady, J.:

The plaintiff sought in this action to recover damages sustained by the death of Patrick Coyle, which it was alleged was caused solely by the negligence of the defendant.’ Upon the trial several exceptions were taken, to which it is not necessary, however, to refer, inasmuch as those which relate to the refusals to charge as requested are regarded as fatal to the maintenance of the judgment.

The plaintiff was injured on the defendant’s road, at a place which is known as the Blissville crossing; and it appeared in evidence that for several years before the accident a flagman had been stationed there to notify travelers of the approach of the trains, for whose use a small house or shanty was erected near the crossing. The defendant’s counsel, on that subject, requested the court to chai’ge that the defendant was not bound, either in law or in fact, to maintain a flagman at the crossing. He also requested the court to charge that the jury could not hold the defendant liable because no gate had been erected at the crossing. To the last request the court said: “I leave that to the jury;” and to the first request said : “ I have charged all I intend to charge on that point. You are not absolutely bound to take any matter into consideration except the ringing of the bell and the blowing of the whistle, if the,circumstances,of the case require it.- I leave that to the jury”

The defendant’s counsel excepted to both of these refusals, and now insists that they were well taken. The court, in reference to the flagman, said: “ But when it comes to the question of flagmen and gates at crossings, that must be left to the circumstances of each particular case, and you are to say whether, at such a crossing, under such circumstances, and particularly at this place, a flagman was necessary as a matter of precaution to warn those who were approaching. The precaution must be commensurate with the danger to be shunned, so that what might be negligence in one case and under certain circumstances might not amount to negligence under other circumstances and in another locality; but the defendant is bound to take such precautionary measures in crossing the highway or the streets as is commensurate with the danger to be avoided.”

In Beisiegel v. New York Central Railroad Company (40 N. Y., 9), in which the judge charged the jury substantially that it' was a question fbr them to determine whether the crossing referred to in that case was in so populous a portion of the city that it was due to the public safety and common prudence that the company should keep a flagman stationed at that point, and if they determined that.it was then an omission to do so was negligence, the court. declared that the charge was error and a new trial was granted. And in Grippen v. New York Central Railroad Company (same vol., p. 46), the court said: The question to be submitted to the jury is not, therefore, whether, in their judgment, due care required the railroad company to keep a flagman at the station to give warning; not whether that was a suitable mode of giving notice of the approach of a train; not what signal would be sufficient to give such notice. But the question is whether, under the actual circumstances of the case, the company exercised reasonable care and prudence in what they did, and whether its neglect caused the injury complained of.”

In Weber v. New York Central Railroad Company (58 N. Y., 458), the court said: “ The judge had before distinctly instructed the jury that there was no law making it the duty of the defendant to have a flagman, and that it was not negligence in it not to have one at this, particular street crossing; ” and further, “ thus one of the «errors that led to a reversal of the judgment in Beisiegel v. New York Central Railroad Company, and Grippen v. The Same, was 'avoided.” And in McGrath v. New York Central and Hudson River Railroad Company (59 N. Y., 468), it was held that where a railroad company had been accustomed to keep a flagman at a crossing, the fact of his absence or withdrawal did not excuse a traveler from the charge of negligence in omitting the use of his senses. He had no right to interpret the absence as an assurance of safety. And it was declared that in an action to recover damages for injuries sustained by a traveler at a crossing, the receipt of evidence of such custom, and that the flagman was absent at the time of the accident, as a circumstance bearing on the question of the plaintiff’s negligence, was error. The court said, referring to Beisiegel’s case: “ The law does not make it the duty of a railroad company to place a flagman at a street crossing to warn travelers. (Beisiegel's Case, 40 N. Y., 9.) It may do so for that purpose or for the protection of its trains or passengers. If it does so the duty is voluntarily assumed and may be abandoned at any time, and a mere failure to-perform a self-imposed duty is not actionable negligence.”

The case last cited was again before the court of Appeals (see 63 N. Y., 522) when the cases referred to were discussed, and although the court seems to have changed its rale in that case on a question, of evidence as to the custom of having a flagman, nevertheless it declared that it had been decided that it was not the duty of a railroad company to keep a flagyian at a crossing, and it was not chargeable with negligence for the omission of any such supposed-duty. The principle involved in this proposition is discussed elaborately. The court said in the course of the discussion: In a given case the evidence of the absence of a flagman is received, and the judge charges the jury that if they find that it was the duty of the defendant, under the circumstances, to keep a flagman at the. crossing, the omission of that duty is negligence, which may make the defendant liable. Under such a charge that duty is made the central and controlling fact, and if the jury should find that the defendant had run its train with the greatest care in 'other respects, and that it was guilty of no other negligence, and yet should find that it had omitted that duty, they could find a verdict against the defendant. * * * Under such a charge as I have supposed, the jury is put in the place of the legislature, and its decision as to the duty has the force of statute law, and hence such a charge has properly been condemned by the courts of this State.” “ In another case,” the court continued, “ the evidence is received and the jury is charged that the defendant owed no duty to any one to keep a flagman at the crossing, but that its sole duty to travelers upon the highway was to run and manage its trains with proper care, so as not to injure them in the exercise of their lawful rights, and that upon the question whether such care was exercised, they must con.sider all the circumstances existing at the time and place of the accident, and among them the fact of the absence of a flagman at the crossing. • In such a case a proper use is made of the evidence, and the charge is liable to no just criticism.”

In the case of Houghkirk v. President, etc., Delaware and Hudson Canal Company (92 N. Y., 219), the plaintiff requested the court to leave it to the jury as a question of fact to say whether, under the circumstances disclosed by the evidence, the defendant should have had a flagman at the crossing. The court answered : “ 1 Pave done so.” The court then added: “I said I would not charge as matter of law whether the company was or was not bound to have a flagman thefe; it was a question for the jury to say under the circumstances;” and the defendant again excepted. The Court of Appeals said: The charge in this respect was substantially the same as that in Grippen v. New York Central, for which the judgment was reversed. In both instances the jury were allowed to find that due care required the presence of a flagman,, and that the omission to station one at the crossing was negligence on the part of the railroad company.” And the court further said: “The true rule and the proper distinctions were well stated in McGrath v. New York Central and Hudson River Railroad Company (63 N. Y., 528). It was there said it would be error for a judge to instruct a jury that it is the duty of a railroad company to keep a flagman at a crossing, or to submit to a jury the question whether it ought to have kept a flagman there;” and the court said the reason was carefully pointed out; that a railroad company is not bound and owes no duty so to station a flagman, and negligence cannot be predicated of the omission; that the fact may be proven as one of the circumstances under which the train was moved and by which the degree of care requisite in its handling, and running may be affected; so that the question never is whether there should have been a flagman or one ought to have been stationed at the crossing, but whether, in the view of his presence oí* absence, the train was moved with prudence or negligence. And the court said further, the jury “ must have gone to their deliberations with the final impression upon their minds that they were at liberty to find that the defendant ought to have stationed a flagman at the crossing, and that omission constituted negligence upon which a verdict could be founded. For this error we think there should be'a new trial.”

This case is the latest exposition of the law relative to the stationing of flagmen in the management of railroads. It will have been ■observed' that the learned judge in the court below, when asked to charge that the defendant was not bound to maintain a flagman at the crossing, said that he had charged all he intended upon that subject, and then alluding to other matters said, I leave that to the jury,” from which it may be fairly inferred, although it may not have been so intended, that he meant to leave to the jury the question whether or not the defendant was bound to maintain a flagman at the crossing. It is certainly open to such an interpretation and may have been so understood by the jury. Perhaps it may be said that no other construction of the language uséd can be adopted. But assuming that that be not so, the language used in the charge to which he referred is equally objectionable with that employed in the last case cited; because he said, as we have seen, that the jury were to say whether at the crossing under the circumstances a flagman was necessary as a matter or precaution to warn those who were approaching.

This is equally forcible with the language employed in the last ■case cited, which was : “ I leave it to the jury as a question of fact to say whether, under all the circumstances disclosed by the evidence, defendant should have had a flagman at the crossing.” The two elements though not identical in language are in substance and in force. If the court had said, assuming the proof established that there was np flagman present at the time the accident occurred, to ' warn the deceased of the approach of the train by which he was killed, they might consider that as one of the circumstances under which the train was moved, and By which the degree of care requisite in its handling and running might be affected, so that the question would not liave been whether there should have been a' flagman stationed at the crossing but whether in view of his presence •or absence the train was moved with prudence or negligence, the charge might be sustained.

The line thus drawn by these cases is extremely delicate, as it is understood, and perhaps too fine for successful application generally in the trial of a cause, which cannot be so deliberate as the consideration of the question by court in bane. But it is the duty of this court to apply it as it is understood to exist upon a full consideration of all the cases bearing on the subject emanating from' the court of last resort. It may be, however, that the exception considered must be held to relate only to the refusal to charge in the language of the request, no exception having been taken to the charge as given, and if so it is of no avail. The court was not required to charge that the defendant was not bound in law or in fact to maintain a flagman at the crossing. It has been shown by the doctrine of the cases cited that the propriety of keeping a flagman at a place indicated may be considered, under certain instructions, as an element affecting the question of negligence. In law the defendant was not bound to maintain a flagman but whether it might be requisite or not as a matter of fact, is a question which may, under the authorities, be properly submitted in a declared phase to a jury.

The disposition of the exception as last suggested, assuming it to be conclusively in favor of the plaintiff, does not, however, relieve the case of its embarrassment arising from the request in reference to the gate, inasmuch as what has been said in regard to the maintenance of a flagman at the crossing is considered to be equally applicable to the refusal to charge that the company could not be held liable because no gate had been erected at the crossing, (See cases supra.) The disposition of that request left it in the power of the jury to determine whether they could hold the defendant liable because no gate had been erected at the crossing. This was error. There is no greater obligation to erect a gate than to maintain a flagman, and a similar charge as to flagmen, as we have seen, would be erroneous. Under the refusal to charge as requested and what was said by the justice presiding, the jury retired with instruction which advised them they could hold the defendant liable because no gate had been erected, and they were thus allowed to rest their verdict on that incident. This is fatal to the plaintiff' (cases supra), and the judgment appealed from must be reversed and a new trial ordered, with costs to abide the event.

Davis, P. J., and Daniels, J., concurred.

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


source: Caselaw Access Project

author: Brady, J.:

license: Public Domain

text:
    WILLIAM SIEWERT, Respondent, v. DEDERICK HAMEL, Appellant.

      Judgment of foreclosure and for any deficiency arising on a sale — when a judgment for deficiency may he entered without a sale.

    During the pendency of this action brought to foreclose a mortgage, a prior-mortgage upon the same premises was foreclosed and the premises ware sold and purchased by the plaintiff herein. A surplus arising upon that sale was. received by the plaintiff herein and applied in reduction of the amount due upon his mortgage. The usual judgment of foreclosure and sale was entered in this action, after the said sale under the prior mortgage, and the referee-was directed to specify the amount of the deficiency in his report of sale, and the defendant was directed- to pay the same to the plaintiff. Thereafter the plaintiff, without having had the premises sold under his judgment, applied for leave to enter a judgment for deficiency for the amount remaining due-upon his judgment after applying thereon the amount of surplus money received under the foreclosure of the prior mortgage.

      Seld, that the application was properly granted.

      Loeb v. Willis (22 Hun, 508) distinguished.
    Appeal from an order made in an action for tbe foreclosure of a mortgage, directing the clerk to-enter judgment against the defendant for $5,887.06, after a decree of foreclosure and sale had been-entered and a sale had been made in another action brought to foreclose a prior mortgage upon the same premises, and without any sale having been made of the premises under the judgment of foreclosure entered in this action, which was brought to foreclose a. second mortgage on the said premises.
    This action was commenced in July, 1876, by the plaintiff for-the foreclosure of a mortgage given by the defendant on property in New .York. An answer was interposed therein by defendant, alleging usury. The interest not being paid on a first mortgage on. ■the same premises, on January 2, 1877, an action was commenced for the foreclosure thereof, .and on April 3, 1877, a judgment was ■entered therein for the sale of the said premises.
    This action was tried at a Special Term on April 13, 1877, and on April 16, 1877, findings'were signed whereby the court found that the mortgage sought to be foreclosed in this action was good to the extent of $7,832, but no judgment was then entered thereon. On April 30, 1877, the premises were sold under the foreclosure of the first mortgage and bought in by this plaintiff for $22,050, and he is still the owner thereof.. There being a surplus on such sale, proceedings were instituted by this plaintiff to obtain the .■same, and on June 20, 1877, such surplus was paid over to him pursuant to an order then entered. On July 13, 1877, the plaintiff, entered herein the usual judgment of foreclosure and sale, from which successive appeals were taken to the General Term and to the Court of Appeals, where it was affirmed. On July, 1883, the plaintiff applied for leave to enter a judgment for the •deficiency remaining on his judgment, after crediting thereon the amount of such surplus received by him under the foreclosure of the first mortgagé, and on August 9,1883, an order was entered1 granting such application, from which order the plaintiff now appeals.

      WilUam Mo Crea, for the appellant.

      Edgar Whitlock, for the respondent.
   Brady, J.:

It appears that after this action was commenced the Union Dime .'Savings Bank proceeded to foreclose a mortgage which they held against the premises described in the plaintiff’s mortgage, under which a sale took place prior to the entry of the plaintiff’s judgment herein, and at which sale the plaintiff herein became the purchaser. It also appears that under the sale mentioned there was .a surplus, which the plaintiff herein proceeded to obtain and acquire by proper measures, and applied the same to the account of the • ■defendant. The judgment entered herein directed the referee to •specify the amount of the deficiency in his report of sale and that .the defendant pay the same to the plaintiff. And by the findings herein it was declared by the justice who tried the cause that the plaintiff was entitled to judgment against the defendant for the deficiency, if any. The premises having been sold under a prior mortgage, and there being therefore nothing to sell under the judgment, application was made for an order directing the entry of ,a judgment herein for the amount due after the payment of the moneys obtained out of the surplus already mentioned, and which was the deficiency, that sum being still due after the payment of the surplus as already mentioned.

Justice Potter, to whom the matter was presented, disposed of it in an opinion which, we think, correctly expresses the rules of. law by which the motion should be governed. Ke distinguishes this case from the case of Loeb v. Willis (22 Hun, 508), and properly says in regard to the case cited that there the plaintiff, who was the second mortgagee and moved for judgment for a deficiency, had no judgment whatever, whilst in this case there was a judgment of sale and a judgment for a deficiency, and it was further distinguishable from this case from the fact that, there was no surplus and here there was a surplus; and further, that the amount of the plaintiff’s claim herein was reduced by the application of the surplus.

It must be admitted that the line is very close between this case and the • one cited, but nevertheless the existence of the judgment in the plaintiff’s favor and the surplus, and the application of that surplus, would seem to make the deficiency apparent as the result of a sale of the premises, although that sale did not take place under the plaintiff’s judgment. For this reason, although it must be conceded that it is not free from doubt, it is thought, inasmuch as no sale of the premises described in the mortgage given took place under the plaintiff’s judgment, a sale of them, having been already made by legal process, and as no good could result from such an incident and as it would therefore be a work of supererogation, the plaintiff herein should not be subjected to the necessity of abandoning this action, in which the deficiency, if any existed, was decreed, and be compelled to resort to an action on the bond and thus obtain a judgment m personam. A mistake was made, howevei’, in the allowance of interest, which could be only at the rate of seven per cent up to the time of the passage of the act reducing the rate of interest to six per cent, the judgment having been entered before tbat statute took effect. Sucb is the law. (Taylor v. Wing 84 N. Y., 471.)

The order must be modified, therefore, by deducting the excessive interest, and affirmed in all other respects, without costs to either party.

Davis, P. J., and Daniels, J., concurred.

Order modified as directed in opinion and affirmed as modified, without costs.


author: Daniels, J.: Davis, P. J.: Brady, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. RICHARD J. MORGAN and Others v. DANIEL G. ROLLINS, Esq., Surrogate of the City and County of New York.

      Swrrogate — power of, oner a final accounting — when he should proceed with it although one of the grounds of the objection made therein, presents a question which he has not jurisdiction to hear and determine, and an action to obtain a determination thereof has been brought in the Supreme Court.

    Charles Morgan died leaving a will by which he deviséd and bequeathed all his property, real and personal, as provided by the laws of the State of New Yolk in cases of intestacy. Upon the final accounting of the executrix before the surrogate of New York.it was objected that she had not included'in her accounts seventy-five hundred shares of stock transferred by the testator to three of his descendants prior to his death.
    It was claimed, first, that the' transfer of these shares had been procured by fraud or undue influence, and
    Second, that they were advancements which should be deducted from the shared of his estate, which the transferees were entitled to take under his will.
    It appeared that an action had been commenced in the Supreme Court against the executor of the will and the donees of the shares, to set aside the gifts upon , the first ground of objection, viz., as having been wrongfully obtained.
    The surrogate thereupon declined to decide whether the second objection, viz., that they were advancements and should be deducted from the shares of the donees, was well taken, until the question' presented by the action in the Supreme Court, over which that court had jurisdiction, and the Surrogate Court had not, should he first decided by the Supreme Court.
    A writ of mandamus was thereupon applied for to compel the suxvrogate to decide that poi'tion of the controversy submitted to him.

      Held, that the application should he granted and the writ of mandamus issue.
    (Davis, P. J., dissenting.)

      Whore a court has acquired jurisdiction over a subject-matter and the parties in interest, in the course of the exercise of its rightful authority, it is its duty to proceed with the hearing until a final determination is made of the matters presented for its consideration and under its control, unless it be prevented from so doing by an injunction or some other legal process rendering such a proceeding impracticable.
    A mere objection, or an objection followed by an ineffectual action in another court, will not justify a delay or refusal to exercise its own rightful authority. (Davis, P. J.,-dissenting.) v

    Motion for a writ of peremptory mandamus requiring the surrogate of New York to decide and determine certain questions raised upon the settlement of the accounts of Mary J. Morgan, as executrix -of the last will and testament of Charles Morgan, deceased. The .application was made in behalf of two daughters and a grandson of the deceased.
    The writ of mandamus has been applied for in order to obtain the -direction of this court requiring the surrogate to decide a portion of the controversy submitted to him on the settlement of the accounts of the executrix of the estate of Charles Morgan, deceased. By the will of the testator he gave, devised and bequeathed all his property, .real and personal, as provided by the laws of the State of New York in cases of intestacy, and in the course of the accounting it was made to appear that prior to the time of his decease he had ■transferred to each of the three relators Y,500 shai’es of the Morgans’ Louisiana and Texas Railroad and Steamship Company ■stock. These shares had been transferred by written or printed instruments, subscribed by the testator, and they had been recorded in the books of the corporation. When the executrix presented her account for settlement, it did not include any of these shares. ■Objections were filed to this omission on the part and in behalf of other persons interested in the distribution of the estate, and in ■support of those objections it was claimed that the transfers of these shares had been procured by fraud practiced upon, or undue •influence exercised over the testator. It wap also claimed under the terms of the will by which the property of the testator was disposed of, according to the laws of the State in cases of intestacy, that they were advancements made to the relators respectively, and their .•amounts should therefore be deducted from the distributive shares of the respective relators, or applied upon the legacies provided for them in this manner by the will.
    The surrogate declined to determine whether these latter objections were well taken, until the objection that the transfers of the stock were obtained by means of fraud or undue influence should be disposed of by the action of another court having jurisdiction over controversies of that description.
    Upon the former hearing of this matter it was directed that a writ of mandamus issue requiring the surrogate of New York to proceed to hear and decide the matters over which he had jurisdiction in the proceedings above referred to. On the application of the respondents a reargument was ordered, after hearing which the •following opinions were delivered:

      F. N. Bangs, for the relator.

      John S. Da/oemport, for the executrix of Oharles Morgan, deceased.
   Daniels, J.:

This case has again been brought to the attention of the court, upon the supposition that a misunderstanding entered into the decision as to the fact of an action having been commenced for the ■determination of the truth of the allegation, that the persons to whom the testator had delivered the stock in controversy obtained it from him hy means of undue influence. As the case was pre sented there was a reference to the fact that an action had been commenced, but the fact was not stated in such a manner as to show ■what the action was, how or by whom it had been commenced, or who were the parties to be affected by it. All that was stated in the affidavit upon this subject was by way of reference to the surrogate’s conclusion, that the validity of all the gifts should he left unaffected by him and could be determined in an action stated to be then pending in the Supreme Court, or in such other action appropriate for that purpose as the parties in interest might be advised to bring. That such a suit had been instituted was not otherwise set forth than in this inferential manner. And the conclusion of the surrogate, in his opinion, was equally as indefinite. It was there stated in the same manner that the validity of the gifts would be left unaffected by his decree, and could be determined in the action pending in the Supreme Court, or in such other action appropriate for the purpose as the parties in interest might be advised to bring. Neither of these were such statements as showed that any action had been brought in which the validity of the gifts would be tried and determined. While it appeared from the statements of the affidavit that tlie surrogate had declined to proceed with'the investigation and determination of the question, whether the shares were advancements to the persons receiving them or delivered in ademption of legacies, simply for the reason that it was claimed before him that they had been obtained by means of undue influence, exercised over the testator prior to the time of the delivery of the shares by him. It is stated in the affidavit that this claim had been made, “ and the said surrogate thereupon determined and decided that it was incumbent upon him to recognize the existence of the claim last mentioned, viz., that the said transfers were procured by fraud and undue influence, and the fact that its establishment would defeat the gifts whose validity it disputed, and that it was accordingly incumbent upon him to suspend the proceedings, before him for a distribution of the estate, so far as such proceedings related to the said 22,500 shares, until another tribunal has acted in the premises.” It was further stated that the surrogate had concluded to withhold the direction for the distribution of certain moneys or property “ until the further decision and decree or order of the Surrogate, after the decision and determination by a decree of a court of competent jurisdiction of the questions raised by the objection, which, as stated in said decree, are neither overruled nor sustained.” And that none of the parties were entitled to any determination by the surrogate’s 00111!; of the question of advancement raised by the objections, nor to have any further distribution then made of the estate. The opinion of the learned surrogate proceeded upon the same view, that it-was his duty to withhold his decision upon the controverted subject over which he had authority, for the reason that the claim had been made that the shares- were obtained by means of undue influence. The objection and the claim alone are what were considered by him as the obstacle in the way of the exercise of his authority. It was spoken of as “the contestant’s claim,” and lie regarded it as as his duty to suspend his action over the case until “ the contestants who make this claim shall eventually prevail,” and that he could not help regarding that as a sufficient reason why no decree should be entered.” Throughout, as it has already been said in the opinion of the court, the surrogate regarded it as improper for him to proT ceed with the further investigation of this part of the controversy for the reason that this objection and claim had been interposed. Nothing more stood in the way of a final and complete exercise of his power and authority over the subject-matter. And that was considered, as it is now regarded, as insufficient to deprive him of his conceded statutory jurisdiction over the subject requiring his determination. In all other respects, except as to the objection that the transfers of the stock had been obtained , by fraud or undue influence, the surrogate’s authority was entirely complete, and he had in no manner been interfered with by any other legal proceeding, preventing him from exercising this authority. But it was declined as being the most politic in the view then taken of the oftse. The controlling reason assigned for that was that if it should be determined that the shares were obtained by fraud or undue influence, then the investigations would not require to be made, whether thry were advancements or transfers by way,of ademption of legacies. • This, however, was a mere possibility which might never arise, and as the case was at the time properly before the surrogate for the exercise of his jurisdiction, and that had been in no manner affected by legal proceedings, or the interposition of the authority of another court, the parties had the right to insist upon it that the surrogate should proceed, as he certainly was at liberty to do, and hear and determine the whole controversy so far as his jurisdiction over it extended. That would be the course ordinarily deemed to be appropriate for any court of limited jurisdiction, where the action or proceeding was properly before it, to exhaust its jurisdiction unless restrained or prevented from doing so by legal proceedings necessarily attended with that effect. It may be that such a decision would be made upon one of these two objections as would render it completely operative, and in that manner dispense with an action to test the validity of the transfers on the allegation of fraud or undue influence. But if that should not be the case, as the surrogate had acquired jurisdiction over the proceedings, the parties, had the right to claim that his legal investigation should be carried as far as the law.would permit that to be done, before any suspension of its proceedings should take place, as long as it was not prevented by. the action of another tribunal.

In the statement which has been presented since the preceding decision was announced it'has been set forth that an action was commenced on the 9th of January, 1880, by parties claiming the invalidity of these transfers against the executrix and the donees of the shares, to set aside the gifts as wrongful, illegal and void. But the complaint in the action was served alone upon the executrix. To that complaint a demurrer' was interposed in her behalf, and since that time no other proceedings have been had in the suit. These facts are further stated to have appeared before the surrogate, but they certainly imposed no restraint upon him or the executrix, upon whom the complaint had been served, and furnished no indication of the existence of any active design to obtain an adjudication upon the validity of the objection allowed to have effect in the proceedings before the surrogate. Neither the suit, nor anything that was done in it, interfered with his power or authority to proceed, or the right of either of the parties to require that to ■ be done. Tf the pendency of such an action as this could be allowed to restrain and suspend the proceedings before the surrogate, then there would be danger that the parties interested in the distribution of the estate might never be able to accomplish that result;.and no authority seems to exist which would justify the suspension of legal proceedings before any tribunal, simply because of the pendency of such an ineffectual action. And as much as that was intimated in the decision already announced. -To prevent all misunderstanding on this subject, and in view of the possibilities of the pendency of an action exercising no actual restraint over the surrogate or the parties, it was .said that the tribunal to which, such an objection might “ be presented is by the clear necessities of the case required to proceed, notwithstanding the objection to a final determination of all the matters over which its jurisdiction extends, unless its action shall be arrested and prevented from being consummated by reason of some other proceeding exercising paramount authority over it.” If this statement was not intelligible it may be added, for the purpose of rendering it so, that it was intended to be held where one- court has acquired jurisdiction over a subject-matter and the parties to it, in the course of the exercise of its rightful authority, that it should proceed with the hearing until a final determination may be made of the matter committed to its consideration and control, unless .that may be prevented by an injunction or some other legal process rendering such a proceeding impractical. A mere objection, or an objection followed by an ineffectual action in another court, will not be sufficient to prevent this consummation of lawful authority, and no different decision is accordingly required to be made, because of the pendency of the suspended action commenced in the Supreme Court, than that which has already been announced.

Davis, P. J.:

I think the fact that a suit was actually pending, now admitted, and to which our attention is now specially called, changes the question involved in this application. It vested the surrogate with discretion to decline to proceed with the settlement of so much of the account as was affected by the subject-matter of the contest in that suit, and that his decision is only reviewable in this court by appeal.

My concurrence in the former opinion of my brother Daniels was put altogether on the ground that no suit to test the alleged fraud and undue influence had been brought or was pending. The writ of mandamus ought not to issue. The surrogate has not declined jurisdiction. He has accepted it and proceeded to determine in effect that in his discretion the question whether the gifts of the stocks were advances to the donees, which should be charged against their distributory shares, ought not to be tried by him till the litigation which charges that they were obtained by undue influence and fraud has been determined by the court, which alone has jurisdiction thereof. If not-content with that conclusion I think the parties must appeal from the decree of the surrogate.

Brady, J.:

I think the surrogate’s power has not been interfered with, or the exercise of his jurisdiction restrained in any way, and that he should therefore proceed. An appeal from his determination, if not satisfactory, secures all rights and would be conclusive in its results equally with a judgment in the action, if one should be pronounced. I concur, therefore, with Justice Daniels.

Mandamus granted.


author: Davis, P. J.: Daniels, J. :

text:
    ADAM EMMERICH, Respondent, v. PETER HEFFERAN Appellant, and Others.

      Motion for,a new tiial on ike minutes — when am, appea/t'ance and 'consent estops a party from, denying the regularity of a motion, or the jurisdiction of the cowt to hear it —power of the court to reconsider a decision during the cwcuit at which it was made.

    Upon this case being brought on foi' trial before a jury, the court, upon the motion of the.counsel for the defendant Hefferan, dismissed the complaint as to him upon the ground that it did not state facts sufficient to constitute a cause of action, to which the plaintiff’s counsel excepted. At the same circuit the plaintiff moved upon this exception to vacate and set aside the order and for a new trial. The motion was adjourned by consent to a later day, when it was brought on for argument before the trial judge, the counsel for the defendant Hefferan consenting that the motion be made upon the minutes of the justice before whom the trial was had, and waiving all questions as to the regularity thereof and as to the right of the' plaintiff to make the motion. The comt vacated the former order and directed a new trial, costs to abide event.

      Held, that even if a motion for a new trial could only he made upon the minutes of the justice where a verdict has been actually rendered (Code of Civil Pro., § 999), yet in this case the defendant had by his appearance and consent waived all right to question the jurisdiction of the court or the regularity of the plaintiff’s practice, and that an appeal taken by him from the order should be dismissed.

      It seems, that the court might, of its own motion, have directed a reargument of • the motion to dismiss the complaint at any time during the same circuit.
    Appeal from an order made at a trial term of the Supreme Court, vacating an order theretofore made, dismissing the complaint as to tbe defendant Hefferan and granting a new trial.

      A. R. Dyett, for tbe appellant.

      W. G. MoCrea, for tbe respondent.
   Davis, P. J.:

This action was brought on for trial at circuit on the 13th of November, 1883, before one of the justices of this court and a jury. Before any evidence was given in the case, the counsel for the defendant Hefferan, moved to dismiss the complaint as to Hefferan, on the ground that the complaint did not state facts sufficient to constitute a cause of action against him. The plaintiff’s counsel opposed the motion, and -the court on hearing the argument, granted the motion and dismissed the complaint as to Hefferan, to which the plaintiff’s counsel excepted. 1

Subsequently and at the same circuit, the plaintiff made a motion, on the exception, to vacate and set aside the order dismissing the complaint and for a new trial, which motion was adjourned by consent until the 14th of December, 1883. On that day it was brought to argument before the judge, and the defendant, as appears in- the order entered, consented to the making of the motion on the minutes of the justice, by whom the action was tried, waiving all questions as to the irregularity thereof, and the right of the plaintiff to make the motion. Counsel for the respective parties were heard, and .afterwards on the 3d day of January, 1884, the court made an order vacating and setting aside the order dismissing the complaint, and ordering a new trial in the action, with costs to the successful party to abide the event. -

It is now insisted that the order appealed from was granted without jurisdiction. It is true that section 999 of the Code of Civil Procedure only authorizes the granting of a new trial upon the minutes of the judge after a verdict is rendered, and it was held in Hill v. Hotchkin (23 Hun, 414), Dusenbury v. Dusenbury (61 How., 432) and Van Doren v. Horton (19 Hun, 7), that a motion could not regularly be made to grant a new trial bn the minutes of the judge where no verdict had been rendered by the jury. But in those cases a trial before a jury was actually had and testimony was taken, and upon such testimony the court had directed a nonsuit or dismissed the complaint and taken it away from the jury upon the evidence presented. In this case there was no trial before the jury. No evidence whatever was given and nothing was presented upon which a verdict could be rendered. The counsel simply moved for a dismissal of the complaint as to the defendant Hefferan, on the ground that the complaint itself did not contain facts sufficient to constitute a cause of action. The court after argument granted the motion. There were no minutes of the court, upon which to base a motion for a new trial, except the mere entry that such a motion was made .■and was decided adversely to the plaintiff and an exception to the decision taken. The whole case on the motion appeared in the complaint itself. Now in this ease, after such a decision, the counsel, by mutual consent, appeared, and consented to a reargument of the. question before the same judge, waiving all objections both of juris*diction and regularity: and the same judge, having thus heard the-argument upon that waiver and consent, and reconsidered his former opinion, vacated and set aside his decision and directed a trial of the-action before a jury.

We think this procedure was not obnoxious to the objection which the appellant makes under section 999 of the Code. It was neither more nor less than a case where a judge at circuit, having dismissed a complaint on the ground that it did not state facts sufficient to constitute a cause of action, allows the question to be reopened for further argument and consideration by him, the parties, consenting and waiving all objections of irregularity and jurisdiction^ and the result was, legally speaking, precisely the same as though, he had denied the original motion to dismiss. Indeed, we think the judge of his own motion, at the same circuit, might have opened the question and directed the parties to re-argue the same, and thereupon denied the motion, if he came to the conclusion, that such an order should be made. It is true the trial could not go on before the same jury, but the parties understood that fully, and the effect of their agreement was to consent that if the judge denied the-motion to dismiss, the case -should be directed to be tried before some other jury. To allow the appellant, after consenting to that course and expressly waiving all objections, on finding his motion, denied, to assert on appeal that the court had no jurisdiction to make such an order, is simply to allow him to take advantage of his own wrong. It is the duty of the court, unless it is so palpable a violation of some jurisdictional question that the court has no power over it, to hold the appellant to the result of his agreement. To hold that the order was void for want of jurisdiction at this stage of the action is probably to deprive the plaintiff of all remedy, as the order dismissing the complaint made at'the circuit would be in full force, and probably no steps have been taken to entitle the plaintiff to a review. ,

•We think, therefore, that the appeal should be dismissed, and the order should be treated as nothing more than a denial of the original motion to dismiss,- from which no appeal would lie as from an order, but the error of the court, if any, in denying the motion would have-been reviewable upon appeal from the judgment if the plaintiff had recovered a verdict. The order now appealed from must be regarded simply as directing the trial of an action to proceed under circumstances where neither party is in position to bring the issue to trial in the ordinary form.

Tlie appeal is therefore dismissed, with ten dollars costs and disbursements.

Daniels, J. :

The provision contained in the Code declaring the cases in which the court at the trial may entertain á motion for a new trial on the-minutes is by ho means exclusive. It has not'declared that the court at the trial, or before which the action shall be brought for trial, shall not interpose in other cases and order a new trial when that may appear to be proper. It has not, therefore, deprived the courts of the authority invested in them which has not been derived from or made dependent on the provisions of the Code. "Within that authority courts have the power to correct or set aside their orders or judgments inadvertently made or given, particularly when the correction may be made during the same term. (Lange v. Benedict., 8 Hun, 362, 366, 367; Levy v. Loeb, 5 Abb. N. C., 157, 166; affirmed, 75 N. Y., 609.) This power was aU that was exercised in making the order from which the appeal has been taken. Its propriety is clear and manifest, and the order should be affirmed.

Present — Davis, P. J., Daniels and Haight, JJ.

Appeal dismissed, with ten dollars costs and disbursements.


author: Daniels, J.: Davis, P, J.:

text:
    CHARLES LICHTENBERG, Appellant, v. ELIZABETH HERDTFELDER and Others, Respondents.

      Judgment creditors action — cannot be maintained until am execution has been issued.

    One Herdtfelder executed a bond and mortgage to the plaintiff, who brought an action to foreclose the same against Herdtfelder’s executors, in which he recovered a judgment for deficiency against them, which was duly docketed..
    This action was brought by the plaintiff to have a conveyance of real estate which liad been made by the said Herdtfelder set aside on the ground that it was fraudulent as to his creditors. The executors had no personal or real property of the testator in their hands or subject to their disposition out of which the judgment could be paid.
    Meld, that the action could not be maintained as no execution had been issued upon the judgment. (Datis, P. X, dissenting.)
    Appeal from a judgment, entered at Special Term dismissing tbe plaintiff’s complaint. .

      F. R. Coudert, for the appellant.

      Isaac Kugelmcwi, for the respondents.
   Daniels, J.:

The action was brought by the plaintiff to set aside as fraudulent, conveyances of real estate made and executed by George Herdtfelder and wife.to Jacob Heinlen, and afterwards conveyed by Heinlen to Elizabeth Herdtfelder, the defendant. Before it was commenced George Herdtfelder and wife executed and delivered a mortgage to the plaintiff upon land situated in Westchester county, to secure the bond of George Herdtfelder for the payment of $4,000. The bond and mortgage were executed on or about the 29th of November, 1876, and the debt not being paid during the lifetime of the debtor, but maturing afterwards, an action for the foreclosure of the mortgage was brought against his executors. Judgment was recovered in that action for the foreclosure of the mortgage, the sale of the mortgaged property, and the recovery of the deficiency against the executors.

A sale was made of the real estate included in the mortgage, but it failed to produce the amount found to be due by the judgment, and a judgment for a deficiency amounting to the sum of $3,126.96 with interest was entered and docketed against the executors about the 1st of August, 1877. The executors, as a matter of fact, had no personal or real proj>erty of the testator in their hands or subject to their disposition, out of which this deficiency could be collected, and the plaintiff thereupon brought this action to set aside these conveyances made of his real estate by the testator in his lifetime, and by the grantee in those conveyances to the testator’s wife, alleging them to have been made with the intent to hinder, delay and defraud his creditors.

No execution was issued upon this judgment, and because of that •omission the complaint of the plaintiff was dismissed at the trial..

Under section 1871 of the Code, which is similar in its effect to the preceding provisions contained in the Revised Statutes upon the same matter, an execution is required to be returned unsatisfied in whole or in part, to enable the judgment creditor to maintain an action to compel the discovery of anything in action or other property belonging to the judgment debtor. These provisions are unqualified and without exception when that may be the nature of the action. The creditor however is not obliged to resort to the remedy prescribed by this section of the Code. He may, notwithstanding its' enactment, bring an action under the general equitable authority of the court in aid of his execution, to remove such unlawful dispositions of the debtor’s property as may render the execution, while they exist, ineffectual. But to maintain such an action it has been held repeatedly that the issuing of an execution against the property of the judgment debtor is first indispensably necessary.

If the action is brought under the authority of the statute execution must not only be issued, but it must be returned in whole or in part unsatisfied. While if the action is to remove illegal obstruct tions, caused by fraudulent incumbrances or disposition of the debtor’s property, out of the way of the execution, it must at least be issued before an action is commenced. This point has been frequently examined by the courts and it has been sustained with but few exceptions not now entitled to reliance as authority (McCartney v. Bostwick, 32 N. Y., 53; Adsit v. Sandford, 23 Hun, 49; Schmitz v. Langhaar, 88 N. Y., 503; Adsit v. Butler, 87 id., 585.) And the fact that the debtor himself may be deceased forms no legal excuse for the omission to issue the execution. His executors or administrators in that case stand in his place and represent him. (Glacius v. Fogel, 88 N. Y., 434.) And by section 1371 of the Code of Civil Procedure, when the judgment has been recovered, as it was in this instance, against the executors, an execution upon it against them to be collected from real or personal property in their hands, has been authorized. . (Code of Civil Pro., §§ 1371, 1825, 1826.) And a compliance, at least, with what has been directed by those sections was necessary to exhaust the. creditor’s legal remedy. (See, also, Royer Car Wheel Co. v. Fielding, 31 Hun, 274, and Bowe v. Arnold, 31 id., 256, decided by this General Term in January, 1884.) Aiid that it must be issued before tbe creditors suit can be maintained, although the debtor himself may be deceased, was held in Estes v. Wilcox (67 N. Y., 264). And Allyn v. Thurston (53 N. Y., 622) seems to have been to the same effect. Loomis v. Tifft (16 Barb., 541) is an authority supporting tbe plaintiff’s right to maintain the action without an execution, but as an authority for that purpose it stands alone and is directly in conflict with tbe others which have been mentioned and must, therefore, be considered to have been overruled. By the principle so uniformly maintained in them an execution against property must be issued before a creditor’s suit can be maintained. Miller v. Miller (7 Hun, 208) and Dumleavy v. Tallmadge (32 N. Y., 457) are also to the same effect.

The judgment from which the appeal has been taken was accordingly right and it should be affirmed.

Haight J., concurred.

Davis, P, J.:

It is a maxim of the law and of equity tbat it will not demand a vain tiling. The facts of tbis case show that the issuing and return of an execution would be an absolutely useless and idle ceremony.

I think, therefore, the court should not have dismissed the complaint, and feel constrained to dissent from the conclusion of my ■ brother Daniels.

Judgment affirmed.


author: Daniels, J.: Davis P. J.

text:
    JAMES JACKSON, as Receiver of the Paterson Fire Insurance Company, Respondent, v. THE ST. PAUL FIRE AND MARINE INSURANCE COMPANY Appellant.

      Policy of fire insurance —proper construction of a, representation by the assured as to the finish of ahouse — when the policy is avoided by a false representation — a judgment only concludes the parties as to the issues actually decided.

    This action was brought upon a policy of reinsurance issued by the defendant. The St. Paul Fire and Marine Insurance Company, upon uroperty described in a written application, signed by the agent of The Paterson Fire Insurance Company, the plaintiif’s company, as a “ story and half-story hard finished frame boarding-house building.” The building was not in fact hard finished — that is, finished with lath and plaster — throughout, the first story only being so finished while the upper story was cloth finished; that is, finished with muslin tightly stretched and covered with paper. The policy provided “ that any false representations by the assured of the condition, situation or occupancy of the properly, or any omission to make known every fact material to the risk, or an over valuation, or any misrepresentation whatever, either in a written application or otherwise,” should render the insurance void.

      Held, that the application represented that the whole house was hard finished, and that as this was false the policy was void. (Davis, P. J., dissenting.)
    After the fire occurred the agents of the Paterson Company declined to pay the loss to the party whom it had insured, upon the ground that the insured had made the said representation as to the character of the house, verbally, at the time the original policy was issued. In an action brought against the Paterson Company, which, acting in concert with the agents of the St. Paul Company, defended it upon that ground, the Paterson Company was defeated:

      .Held, that the fact that the St. Paul Company took part in the defense of the former action brought against the Paterson Company did not prevent it from defending the present one; that in the first action the question was whether or not such a representation had been made, while in this one the making of the representation was conceded and the question was as to its construction and the effect of its falsity upon the validity of the policy.
    Appeal from the judgment recovered upon the trial of this action before the court without a jury.

      JV. B. Howie, for the appellant.

      Preston Stevenson, for the respondent.
   Daniels, J.:

The recovery was for an amount agreed to be paid defendant in ■case of loss by fire, in a policy of re-insurance issued by it to the Paterson Fire Insurance Company. The latter company had issued its policy upon the same property for the sum in the aggregate of forty-five hundred dollars; three thousand of this amount was on the "building and fifteen hundred on furniture, beds and bedding contained therein; and the defendant insured the Paterson Fire Insurance Company against loss and damage by fire to this property to the •extent of fifteen hundred dollars. On the 25th or 26th of September, 1816, a fire occurred which destroyed and injured the property insured by the Paterson Company to the amount of forty-one hun-dred dollars.

The agents of that company, acting in concurrence with the agents of the defendant, declined to pay the loss, and an action for its .recovery was afterwards, and within the time limited by the policy, commenced in the United States Circuit Court for the district of California. That action was in like manner defended, but a verdict was recovered in favor of the insured, and afterwards in part paid by the company, and the residue by the plaintiff after his appointment as receiver.. Within one year from the time of the final payment, this action was brought against the defendant to recover thé amount agreed to be paid in case of loss by its policy, and that action was resisted upon the ground that a false representation had been made concerning the condition of the property on which the original insurance was made. When the Paterson Fire Insurance Company applied to the defendant for a policy of re-insurance, an application was produced to it, which was made and subscribed by the agent of the Paterson Fire Insurance Company, when the application for the original policy was made. By this application the property to be insured was mentioned as a “ story and one-half story hard finished frame boarding-house -building, known as Willow Glen Cottage, situated about two miles south-west of the city of San Jose,” etc., * * * * “ and fifteen hundred dollars on furniture, beds and bedding contained therein.” ' The defendant’s policy was issued upon this application, and it was made to appear by the evidence produced during the trial that the building referred to was not what was known as “hard finished” above the first story. The, lower story of the building was hard finished, that is, it was finished with lath and plaster; but the half story above was no part of it finished in that manner ; that was finished by what is known as cloth finish,” which was made by muslin cotton cloth stretched across and drawn close; that was sometimes papered and in other instances not papered.

The. witness who gave this evidence, which was not contradicted, stated' that the partitions were made of muslin with paper over it, instead of lath and plaster. The right of the plaintiff to recover upon the defendant’s policy was resisted because of this manner of finishing the upper portion of the building. And in support of the defense this was stated by tlie two witnesses sworn on behalf of the defendant to have been a fact material to the risk, for the insurance of which a higher premium would be exacted, to the extent, as it was stated by one of the witnesses, of one-half per cent. This misdescription contained in the application was not relied upon by the answer,- as it might have been as a breach of warranty, but the defense was placed upon the ground of false representations and concealments concerning the character, condition, nature and materials used in, and the manner and construction and interior finish of, the building insured. No more particular statement was-made of the alleged false representations, or concealment, and for that reason it has been urged in support of the judgment, that the answer disclosed no defense of this character. Rut while the allegations contained in it were very broad and general, they still did include the defense that false representations had been made in obtaining the defendant’s policy of insurance, and upon the trial of the action no objection was taken that the answer in this respect was in any manner deficient; but the facts as they were relied upon and established, were shown without any reference being made to the defective condition of the defendant’s pleading. And this objection for these reasons requires to be disregarded.

If the plaintiff was dissatisfied with the general allegations contained in the answer, an application should have been made under section 546 of the Code of Civil Proceedure, to render it more definite and certain; and as that was not done, and the plaintiff does not appear to have been misled by the defective statement of this defense, the judgment cannot be sustained merely because the answer was not more particular or specific in describing the false representations intended to be relied upon. The variance, if there was one, between the answer and the, proof which was particularly made, was required to be disregarded, as it was by the court, by section 539 of the Code of Civil Procedure.

The point consequently is presented for consideration, as it was upon the trial, whether there was a misrepresentation made by the Paterson Fire Insurance Company for thé defendant’s policy of reinsurance? For if there was then the policy was void, for it was provided in it that any .false representation by the assured of the condition, situation or occupancy of the property, or any omission to make known every fact material- to the risk or an over valuation, or any misrepresentation whatever, either in a written application or otherwise,” should render the insurance void. And as the policy was issued upon the application containing the statement already mentioned, the question arises whether it contained a false' representation as to tbe condition of the property ; and that it did would seem to follow from the fact that the building insured was not what was known as “hard finished.”

The representation was that it was “ a story and half-story hard finished frame boarding-house building,” which by the ordinary 'import of the language made use of was a representation that both the first and the half-story above it were finished with the hard finish. It was not merely a representation that it was a hard finished building, or that the hard finish extended, so far as it had been finished at all, but the representation was made in such language as to include the whole building and to convey the impression that both the story and the half-story had been finished in this manner, for the building was mentioned as a story and one-half story hard finished building.

If the defense had been placed upon the clause in the policy •rendering this description a warranty, as the warranty was untrue, it would clearly have required to have been sustained, for a warranty upon which an insurance has been made must be substantially .and literally true to maintain the liability of the party making the insurance; and the statement made in the policy on this subject was neither substantially nor literally true.

In Lappin v. Charter Oak Insurance Company (58 Barb., 325) the property insured was described as a dwelling-house, when it was in fact used as a saloon, and that was considered to be sufficient to Invalidate the policy. (Id., 318.)

In Merwim v. Star Fire Insurance Company (7 Hun, 659) the property insured was represented to be a dwelling-house, but the cellar was used for the' storage of articles, and that was con. sidered sufficient to avoid the policy.

In Chase v. Hamilton Insurance Company (20 N. Y., 52) the risk was described by the appellant as a stone dwelling-house, and the policy was issued upon that application. The stone building was shown to have had a wooden kitchen attached to it, and that was held to avoid the insurance.

The representation in the case of Wall v. East River Insurance Company (3 Seld., 370) was that the stock was contained in a brick building occupied as a storehouse. It appeared that a part of the building was used for hackling hemp and spinning it into rope-yarns, and for that reason it was held that the warranty upon which the insurance issued was broken.

These authorities are directly applicable to the point now under consideration, for although no breach of warranty was alleged in the answer the misrepresentation concerning the condition of the ■building was relied upon, as it could be under the policy, as a false statement by way of defense, and as a false statement it was entitled to the same weight and effect as the defense of a breach of warranty would have been under the same circumstances; for where the policy has declared, as was done in the defendant’s policy, that any misrepresentation whatever, either in a written application or ■otherwise, should avoid the policy, the fact is entitled to have the ■same effect, when relied upon as such, as it would have if the ■defense of a breach of warranty was set forth in the answer.

In this respect the case differs from that of Barteau v. Phœnix Insurance Company (67 N. Y., 595), where it was held that a misrepresentation in the absence of fraud must be of some fact material to the contract, for here the declaration contained in the policy is that any misrepresentation whatever should avoid the policy; and such was held to be the effect of a mere misrepresentation, whether material or not, under a similar clause in Graham v. Fireman’s Insurance Company (87 N. Y., 69).

In the present case, however, uncontroverted evidence was given to the effect that the misrepresentation was of a material fact; and under either of these authorities, therefore, it would have the effect -of voiding this insurance, for the building was not a story and half-story hard finished building, but it was hard finished below and ■cloth finished above. That rendered the representation untruthful, and a misrepresentation of the condition of the property insured, and as a legal consequence avoided the insurance.

An effort has been made to avoid this result by the course taken on the defense in the action in the United States Circuit Court against the Paterson Pire Insurance Company upon its policy. But, assuming that the defendant in this action joined in that defense so far as to conclude itself by the judgment which was recovered, still that will not sustain the plaintiff’s action, for no representation in writing was made to the Paterson Pire Insurance Company by the assured named in the policy. The written representation was, on the contrary, made by the person who in the employment of the agents of the Paterson Insurance Company obtained the risk. That was done without any authority or direction from the person whom the Paterson Insurance Company insured. The false representation concerning the condition of the building contained in that application was, therefore, not made by the person who received the insurance, but it was made -by an individual who was in the employment of the agents of the Paterson Insurance Company. The liability of that company for the loss under its policy could not, therefore, be resisted because of a false representation contained in the written application for that policy. But the Paterson Insurance Company presented as its defense in that action the actual making of such a representation orally by the person to whom the policy was issued — that was the defense upon which that action appears to have been tried. Evidence was given to maintain it, from which it was claimed that the owner of the building had in fact stated and represented it to be a hard finished building; that, however, was denied by him, and the evidence upon his part tended to support the truth of this denial; and also that the person who applied to him for the insurance was actually informed of the fact that the upper part of the building was cloth finished, and that, if true, the court held to be an answer to the defense which was made in that action, and the rule so applied would have been observed if the action on the policy had been • brought in this State. (Woodruff v. Imperial Fire Ins. Co., 83 N. Y., 133, 140.)

The judgment in that action proceeded upon an entirely different issue from that which was presented by the answer in this action, and for that reason this defendant would not be concluded from making the defense now presented by it, even though it should be held to be bound by that judgment, for a judgment is conclusive upon the parties thereto only in respect to the grounds covered by it and the law and facts necessary to uphold it; and although a decree in express terms purports to affirm a particular fact or rule of law, yet if such fact or rule of law was immaterial to the issue and the controversy did not turn upon it the decree will not conclude the parties in reference thereto. ( Woodgate v. Fleet, 44 N. Y., 1, 13, 14.)

The misrepresentation relied upon as a defense by the defendant in that action was found not to have been made by the person insured by the Paterson Fire Insurance Company, while in the present ease it was proved by the fact that an application for the defendant’s policy of reinsurance containing a statement of this misrepresentation had been made to the defendant, and that it formed a material part of the basis on which its policy was issued.

The defense in this action was entirely distinct and different, therefore, from that presented and considered in the action brought against the Paterson Fire Insuránce Copapany, for it depended wholly upon the fact that the misrepresentation was made by the Paterson Fire Insurance Company itself to the defendant.

This was not and could not have been within the scope of the issue in the other action, and consequently could not have been tried or disposed of at that time. The fact was peculiar to the present case, for the assertion of its existence was contained in the application presented by the Paterson Fire Insurance Company and acted upon by the defendant, and it was at liberty to rely upon this misrepresentation as a defense, notwithstanding the failure of the defense made in the action against the Paterson Fire Insurance Company, which depended wholly upon the alleged fact that the person insured had made a similar oral misrepresentation: to the person in the employment of the agents of that company when he applied to him for the insurance.

It is not necessary to determine whether this action should have been brought within the period of twelve months after proofs of loss were furnished, as the defendant’s policy in one of its clauses required that to be done, for the misrepresentation that was made was sufficient to defeat the plaintiff’s right to recover upon the policy issued to it. It may be probable, however, that under the clause providing for the time and manner in which the payment should be made, if the defendant was liable, that this case should be excluded from the effect of the authorities which have been relied upon by the defendant, for it was provided further by the defendant’s policy that the pro rata clause contained in it should attach in case of the bankruptcy, insolvency or other failure of the company reinsured; and that failure could not very well become known until the time had expired within which it should make, or fail to make,

of the loss. as to consider this part of the case.

There was a Insurance Company for this policy of reinsurance; and that misrepresentation, by the express language of the policy, rendered void.

The judgment on account of this circumstance was not warranted. should accordingly be reversed and a new trial ordered, with to abide the event.

Haight, J., concurred.

Davis P. J.

(dissenting):

In my opinion the story a and are only a description of the size of the building, and the “ hard-finished ” does not necessarily assert that the building so finished throughout.

The word “ correctly used to describe a building which is thus finished in its and most important story, but otherwise finished on its upper or in its attic. It is quite probable that in the State where building in question was located, one finished as this was, is called and known descriptively as “ hard-finished,” to distinguish from one finished with wood or other material throughout its main stories.

I think the judgment should be affirmed.

Judgment reversed, new trial ordered, costs to abide event.


author: Davis, P. J. :

text:
    CONSTANCE B. PRICE, Appellant, v. WALTER J. PRICE, STEPHEN BROWN and Others, as Executors of WALTER W. PRICE, Deceased, Respondents.

      Evidence — what testimony of a pa/rty is inadmissible' as relating to a personal transaction with a deceased person— Oode of Civil Procedure, sec. 829.
    This action was brought by the plaintiff to recover the proceeds of bonds which were alleged to have been placed by her in the hands of the defendants’ testator for safe keeping, and which had been subsequently sold by him. Plaintiff testified that she had $12,000 in bonds in her trunk on or before March 25,1865; that on the morning of that day five $100 bonds were stolen; that the testator came to her room after the discovery of the theft; that he came again with a detective; that the detective after, examining the room said to the testator that the theft had not been committed by a professional thief, that if it had been he would have takeri all the bonds.
    The plaintiff was then allowed, against the defendants’ objection and exception, to answer the following question: “ What did Price (defendants’ testator) say to Bennett (the detective) in your presence.” Her answer to which was: “No, of course, if it had been they would have taken all of them, whereas here is the balance of $12,000 in my pocket. He took them out of his pocket and exhibited — took them from the envelope they were in. But, he said, they won’t get any more, because I am going to put them into a bank for her, meaning me.” She testified that she spoke more than once during the conversation, but that she said nothing while the remarks as to which she had testified were being, made. Eeld, that the testimony was inadmissible under, section 829 of the Oode of Civil Procedure.
    Appeal from a judgment in favor of tbe plaintiff, entered on tbe report of a referee.

      Hughes <& Worthwp, for .tbe appellant.

      J. L. Hill, for tbe respondents.
   Davis, P. J. :

Tbis action was brought to recover, amongst other things, the sum of $6,500 and interest, alleged to be part of tbe proceeds of • $11,500 of United States government bonds the property of tbe plaintiff, which tbe plaintiff claims were received from her by tbe defendants’ testator, Walter W. Price, in bis lifetime for safe keeping, and which be afterwards converted into money' and kept tbe proceeds in bis bands for her benefit.

It presents for consideration many questions of no inconsiderable interest. But at its threshold there is one which relieves us from the consideration of all others, because of our inability to see any escape from a reversal of the judgment and a new trial. The plaintiff was called as a witness on her own behalf to testify against the defendants who are representatives of a deceased person. Section 829 of the Code of Civil Procedure restricts the testimony which she can give, and so far as applicable to her testimony is in these words: Upon the trial of an action * * a party * shall not be examined as a witness in his own behalf or interest * * against the executor * * of a deceased person * * concerning a personal transaction or communication between the witness and the deceased person,” except in a case not presented upon this trial. The plaintiff was called for the purpose of showing that she was the owner of $11,500 of United States government bonds, which came to the possession of the defendants’ testator for her use and benefit. She gave testimony showing that bonds to the amount of $lá,000 were in her trunk in her own apartment on or prior to the 25th of March, 1865 ; that on that morning she discovered that five $100 bonds had been stolen from her trunk; that the remaining $11,500 were still there ; that the defendants’ ■ testator came to her room after the discovery of the theft; that subsequently he came again with one James H. Bennett, a detective; that while he was, there Bennett examined the windows and the doors and talked about the robbery and said it was no regular thief that had been there, no professional thief; that if it had been a professional thief he would have taken the whole of the bonds ; that those statements were made by Bennett to the defendant’s testator. She was then asked : “ Did Mr. Price (defendants’ testator) make any statement in response to anything said by Bennett ?” This was objected to by the defendants as incompetent generally, and as incompetent for the reason that it calls for a personal transaction or communication concerning the witness and a deceased person. The referee admitted the testimony and the defendants’excepted. She answered “Yes sir.” She was then asked, “ What did Price say to Bennett in your presence ?” The same objections were made; and thereupon she was cross-examined touching her competency as a witness; on iyhich cross-examination she stated that she could not remember that up to that particular time she had taken any part in the conversation; that she thought she spoke while they were there sometimes; that she must have spoken during the interview; that she thought she must have spoken more than once during the conversation; that she answered some question of Mr. Bennett’s, but that she thought she did not take part in the conversation generally. She was then asked again, What did Price say to Bennett in your presence,” to which she responded: You mean when Price said it was no professional thief ?

Q. Yes. A. Well, he said, “No, of course; if it had been they would have taken all of them, whereas -here is the balance of the $12,000 in my pocket.”

Q. (By referee.) Meaning Mr. Price’s pocket? A. Yes, sir; he took them out of his pocket and exhibited — took them from the envelope they were in. “But,” he said “they won’t get any more because I am going to put them into a bank for her” — meaning me.

Q. Was anything said by you in the course of these remarks between Price and Bennett to which you have testified ? [Defendants objected as leading and as incompetent. Objection overruled; defendants excepted.]

A. “No, I did not; Price and Bennett came to the premises, together; when they came the bonds were in Mr. Price’s pocket.

Q. Do you know whether or not Mr. Price was at the place or in that room any time before his return with the bonds after the discovery of the theft ? This was objected to, the objection overruled and the defendants excepted. She answered; “ He was there before he came with Mr. Bennett and after the theft.”

We have endeavored to find in the numerous decisions construing section 829 some rule by which the testimony of the plaintiff could be upheld consistently with that section, but we find it out of our power to do so. The decisions are numerous, and to reconcile them with each other is a labor we are fortunately not called upon to perform. But no one of them, we think, goes far enough to sustain the rulings of the learned referee in this ease, although some of them may seem to do so. The rule of the section itself is, we think, simple and plain. It declares that the surviving party in such a case as this shall not give testimony against the representative of a deceased person concerning a personal transaction or communication between him and the deceased person. The object of the rule is equally clear and plain. It is that where death has closed the lips of one party to a personal transaction or communication between him and another, which the deceased could obviously contradict or explain were he living, the other shall not be a witness to prove such transaction or communication in an action against the representatives of the deceased. The evidence in such a case to be excluded may be that concerning a personal transaction between the witness and the deceased, or that concerning a communication between them. In either case the survivor is not to be heard, because the dead person cannot be.

In the testimony already referred to we are of opinion that this rule was violated in both its aspects. The plaintiff was permitted to give evidence concerning a personal transaction between her and the deceased. It was sought to prove that $11,500 of United States bonds belonging to the plaintiff were on the. morning of the 25th of March, 1865, delivered from her possession into the possession of the defendants’ testator. This was done by showing that on the morning of that day those bonds were in her possession in her trunk and in her room, and that a portion of her bonds were on that morning discovered by her to have been stolen. So far the testimony was entirely competent. But it was followed by testimony to the effect that the defendants’ testator, after the discovery of the theft, came to her room and subsequently left and returned with a detective, who examined the premises and came to a' conclusion in respect of the theft; and that at the time the detective came to that conclusion and announced it, the testator had in his pocket the $11,500 bonds of the plaintiff. This was proving a matter of substantial fact concerning a personal transaction between the plaintiff and the deceased ; because the several- facts just stated taken together show that her bonds remaining in the trunk on that morning had in some manner been transferred to the possession of the deceased and were then in his pocket. Her claim, it will be recollected, is that they were to be delivered to him for safe keeping for her benefit; and the testimony given most clearly concerns that personal transaction which, according to the testimony, must have been had between the two, and goes far toward establishing the allegations of her complaint. We are unable to see on what ground that testimony could have been admitted, consistent either with the letter or the spirit of the section. Nothing is clearer than that if the defendants’ testator were living, and the same testimony given by the plaintiff, he would be competent and have it in his power, either to contradict or to explain the transaction in such way as to-deprive it of all valuable force in the plaintiff’s favor. But being dead his representatives are deprived of his testimony in contradiction or explanation, and such testimony as the plaintiff was permitted to give must, if legal, stand in full force against them and put them upon some other mode of explanation or contradiction.

Again, the provision which precludes the plaintiff from testifying against the defendants, concerning a personal communication between her and the deceased was, we think, also violated in admitting a portion of her testimony.

It was important of course for the plaintiff to show not only that her bonds had been transferred on that morning from her own possession to the possession of the testator, but in some manner to-characterize that transfer, so as to show that it was one which subjected the testator to the obligations and duties of her depositary. To do this a conversation, which the plaintiff claims was entirely between the detective and the deceased, was proved to have taken place in the plaintiff’s presence without such participation therein on her part as would make it a personal communication between her and the deceased.

Cases are cited which appear to go so far as to uphold that sort of distinction, to wit, that the communication which cannot be proved must be personal between the witness and the deceased in the sense of having been directly addressed or' spoken by the latter to-the former. ~We think those cases have no sound principle to stand upon. A personal communication, within the true meaning of the section, is any one which the surviving party claims to have received directly or indirectly from the deceased person, and which the deceased person if living could contradict or explain. Nor, in our judgment, is the mode of making the communication by the deceased to the survivor at all controlling. Under the authorities cited,, it would seem that A. and B.* might have a transaction between themselves not only personal but entirely private, to which no person but themselves could testify ; and that if B. should die so that A. could not testify to the transaction, he could testify that after it was concluded he, without taking any part in the conversation himself, heard B. relate the transaction and its terms to C. and thereby establish the transaction solely on his own testimony by proving the communication made to C. which he overheard. In such a case we think his testimony should be excluded both as “ concerning ” the personal transaction between him and the deceased, and as “concerning” a communication between them. Spoken words are communicated to all who hear and understand them, whether addressed to one or many ; and there is no sound reason for saying that A. who hears B. relate facts to C., does not derive them by direct or personal communication from B., as much as O. himself to whom they are addressed. There is no sound reason, either, why if B. alleges that in that conversation A. admitted that he owed to. B. a large sum of money, B. should be at liberty to prove that indebtedness by that admission, after the death of' A., because the conversation was specially addressed to C. His testimony should be excluded in such a case for the simple reason that it takes the evidence which he seeks to give against the representatives of A. from the mouth of the deceased person whom they represent, and by whom if living they could disprove or explain the evidence. So that we think there is no soundness in the position that the Code permits a party to testify against executors to what their testator told another in his presence while he could not testify to it if told directly to himself. The reason for the exclusion in each case is the same; because, if the testimony is admissible in either, it is sufficient if credited to establish a right of recovery against a dead man’s estate without giving any further or other testimony after death has closed the lips of the other party.

"We are of opinion, therefore, that the testimony of the plaintiff in this case to the effect that when the statement was made by the detective that it was no common thief who stole the bonds, the testator declared in substance that whoever it was he would get no more of them because he had the residue in his pocket- to be deposited in bank for the plaintiff was improperly admitted. That evidence was not admissible :

First. Because it “concerned” a personal transaction, to wit, a bailment sought to be established against the deceased’s estate by .the testimony of the plaintiff in her own favor ; and,

Secondly. Because it was such a communication, personally, made to her by the testator, as he if living could have contradicted or explained, and is therefore within the true meaning of the section incapable of proof by her.

Besides, it appears on reading the whole testimony relating to this branch of the case that the plaintiff had- taken some part in the conversation that occurred between the detective and the testator. What part of the conversation she participated in does not appear; but her testimony tends to show that it did not relate to that portion which communicated the possession of the bonds by the testator and explained the exhibition of them made on taking them out, of his pocket, to which the plaintiff testified. Participating in some part of a conversation had in her presence has within some of the cases been deemed sufficient to exclude the testimony against a deceased person. Assuming those cases to be correctly decided, we see no way of escaping their controlling application to this ease.

"We are strongly impressed with the general equity of the plaintiff’s claim, and should be glad to have reached a conclusion on this question which would leave us to consider the other branches of the case. But as we are satisfied that the judgment must be reversed and a new trial granted on the question already considered, we think it advisable to go no further.

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

Daniels, J., concurred in the result

Present — Davis, P. J., and Daniels, J.

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