text:
    Helen Agnes Keane, Resp’t, v. Hugh L. Keane et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed April 11, 1895.)

    1. Attorney—Compensation—Settlement.
    Where a settlement of an action between husband and wife has been made in good faith and without notice of lien claimed, such settlement will be recognized and effectuated, upon such terms as to the attorney are just.
    2. Same—Lien.
    An attorney’s lien cannot attach to a cause, of action, which in its nature is not assignable.
    Appeal from an order, denying defendant’s motion for a discontinuance of the action, and granting plaintiff’s attorney leave to prosecute the action for his own use and benefit.

      Frank W. Miller, for app’lts; J. H. Cohn, for resp’t.
   O’Brien, J.

The plaintiff commenced two actions against her husband, the defendant, one in the superior court for a separation, and the other in this court to set aside deeds to property, on the ground that she had been induced to release her inchoate right of dower by false and fraudulent representations. Subsequently the wife and husband, having resumed marital relations and settled their differences, executed stipulations for the discontinuance of both actions without costs to either. Upon the application by the defendant to plaintiff’s attorney for a consent to discontinue both actions it was refused, and thereupon defendant made the motions, one in the superior court and one in this, the former of which was granted, and the latter in the case in this court was'refused, with leave to plaintiff’s attorney to prosecute the action for his own use and benefit, upon the claim by the attorney that by agreement with his client he was entitled to one-half the recovery. From this latter order this appeal is taken. It is true-that, in answer to the application, plaintiff’s attorney stated that the settlement was collusive; but, outside of such statement, there is nothing in the papers to show, nor does it appear, that the settlement was any other than one made in good faith, and with a view to reconcile the differences between man and wife. And it would be indeed extraordinary if, under those circumstances, this court should interfere and prevent such settlement, and permit an attorney for his own. benefit to proceed with the litigation; thus compelling the husband and wife, against their consent, to remain as litigants in the court, not alone for the purpose of costs, but also to enable the attorney to get his compensation, which was contingent upon his success in the action. Where a settlement has been made collusively between parties for the purpose of cheating an attorney out of his costs or compensation, and particularly after notice of his lien upon the cause of action to the adverse party, the courts have gone far in protecting the attorney, even to the •extent of denying the discontinuance of the action to enable him to obtain his rights. But we have been referred to no case, nor do we think it has been held by any court, where, as here, a settlement has been made in good faith between husha°nd and wife, and where it has been entered into without notice of any lien ■claimed, that such settlement will not be recognized and effectuated, upon such terms, however, as to the attorney are just. The order, such as was here made, seems to us, therefore, to be against sound principle, established practice, and public policy.

It is claimed, however, that support for the order is to be found in the language of section 66 of the Code of Civil Procedure. That provides that the attorney “has a lien ubon his client’s cause of action or counterclaim * * * and cannot be affected by any settlement between the parties before or after judgment.” The lien thus given is presumptively measured by the amount of taxable costs, and, where more is claimed, we think it must be protected by notice. It is not claimed that any notice was given by plaintiff’s attorney of any lien upon the cause of action ; and, as we have already said, there is no evidence of any collusion or attempt to defraud the plaintiff’s attorney ; and we think, under these circumstances, that upon the payment of the taxable costs the defendants should have been permitted to discontinue; and that this was the proper order to have been made in this case we think further appears from the character of the action itself. It was a cause of action which in its nature was not assignable, and therefore, under the authority of Coughlin v. Railroad Co., 71 N. Y. 443, not susceptible of a lien. That case "is authority for the proposition that a settlement between the parties, and a release of a cause of action in its nature not assignable, is a bar to an action thereon, though plaintiff and his attorney had made an agreement giving the latter a share of the recovery. While, therefore, if section 66 of the Code is to be construed as extending the lien not only for costs, but also for compensation, even though no notice has been given, this does not change the rule of law laid down in the case cited, that a lien cannot attach to a cause of action like this, which in its nature is not assignable. We think the order should be reversed, -with $10 costs and disbursements of this appeal, and that the order for discontinuance should be granted, on -condition of the payment of the taxable costs in the action to the date when the motion was made for discontinuance.

All concur.


source: Caselaw Access Project

author: Follett, J.

license: Public Domain

text:
    Mercantile Trust Company, Resp’t, v. Atlantic Trust Company, Impleaded, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed April 11, 1895.)

    1. Pledge—Rights of pledgee.
    Where bonds, secured by a mortgage to plaintiff as trustee,!are guaranteed by a third person, and on the guarantee there is an indorsement' by-defendant, that it held certain shares of stock to secure the guaranty, it is-no defense to an action by plaintiff to recover such shares, on the default of both mortgagor and guarantor, that the latter has pledged them to defendant to secure advances, where the plaintiff has no notice that they are so pledged; nor is it a defense that the guarantor, in violation of a covenant contained in the guaranty that it would not execute any mortgage of its property, had given a mortgage to plaintiff, when done with the knowledge of, and without objection from, defendant.
    2. Same—Depositaries.
    In such action, the depositary cannot raise the objection that the guaranty was not validly executed.
    Appeal from a judgment.in favor of plaintiff.
    On June 26, 1889, the Julien Electric Traction Company, a, New Jersey corporation, executed a mortgage on its property to the Mercantile Trust Company, as trustee, to secure the payment of 200 bonds of $1,000 each, dated on that day, and payable July 1, 1894, with interest at the rate of six per cent., payable on the 1st days of January and July in each. year. On October 18, 1889, said mortgagor executed a supplemental mortgage to the trust company, further to secure the payment of said bonds, 102 Of which are described in the contract of guaranty hereinafter quoted. April 18, 1890, the Consolidated Electric Storage Company, a New Jersey corporation, issued to the Atlantic Trust Company 119,960 shares of its capital stock, for the purchase of certain property specified in the resolution authorizing the-issue of said shares, which property was' afterwards, and before-April 28, 1890, acquired and transferred to the corporation. After paying for this property there was left in the possession of the trust company 60,000 shares of said stock, 30,000 of which are-mentioned in the contract of guaranty. On April 28, 1890, the United Electric Traction Company, a New Jersey corporation, executed and delivered to the Mercantile Trust Company the following agreement:
    “For value received, the United Electric Traction Company, a corporation created and organized under the laws of the state of New Jersey, does hereby, for itself, its successors and assigns, guaranty to the Mercantile Trust Company, as trustee, the payment of principal and interest, at maturity, of one hundred and two (102) bonds of the Julien Electric Traction Company, of $1,000 each, being numbers 1 to 30, 57 to 64, 67 to 70, 76 to 105, 110, 118, 123 to 150; and the United Electric Traction Company aforesaid does hereby, for itself, its successors and assigns, covenant and agree to comply with all the conditions, stipulations, and agreements contained in the mortgage or deed of trust executed by the Julien Electric Traction Company to the Mercantile Trust-Company, trustee, bearing date June 26, 1889, and a supplemental

      mortgage confirming the same, bearing date October 16, 1890, to secure said bonds, more especially the requirements of said mortgage as to renewing, replacing, and keeping in good condition all the property covered by said mortgage and said supplemental mortgage. And the United Electric Traction Company aforesaid does hereby, for itself, its successors and assigns, covenant, stipulate, and agree that the United Electric Traction Company aforesaid will not make, nor allow to be made or issued, any mortgage, mortgage bonds, debentures, or any preference securities, other than the $2,000,000 in preferred stock provided for in the said the United Electric Traction Company’s articles of incorporation, until all of the said 102 bonds above referred to, both principal and interest, shall have been paid or redeemed pursuant to the terms of said bonds. In witness whereof the United Electric Traction Company aforesaid has hereunto caused its corporate seal to be affixed, and these presents to be subscribed by its proper officers thereunto duly authorized, the 28th day of April, 1890.
    “[L. S.] United Electric Traction Company,
    “By B. L. Belknap, President. •
    “Signed, sealed, and delivered in the presence of “Attest: W. B. Stevenson, Secretary.”
    At the date of this agreement the Atlantic Trust Company, by its president, executed and delivered to the plaintiff this receipt, which was indorsed on the contract of guaranty :
    “There has been deposited with the Atlantic Trust Co. 30,000 shares of the Consolidated Electric Storage Company’s stock, security for the performance of above guaranty.
    W. H. Male, Pt.”
    The bonds not being paid, the plaintiff demanded that the Atlantic Trust Company deliver the shares of stock to the plaintiff, or that the Atlantic Trust Company sell the shares, and apply the avails towards the payment of the bonds ; which the trust company refused to do, whereupon this action was brought to compel it to deliver the stock to the plaintiff. Before the action was begun a receiver had been appointed for the United Electric Traction Company. The Consolidated Electric Storage Company and the United Electric Traction Company and its receiver are joined as parties defendant with the Atlantic Trust Company. The trust-company and the receiver answered, the other defendants making-default. After a trial at special term a judgment was ordered adjudging that the Atlantic Trust Company deliver the shares of stock to plaintiff, from which the trust company alone appeals.

      J. Langdon Ward, for app’lt; Wm. B. Hornblower, for resp’t.
   Follett, J.

When this action was before this court on the appeal from the first interlocutory judgment sustaining a demurrer to the matter pleaded in avoidance in the original answer, it was held that the facts so pleaded were insufficient to constitute a defense, but leave was given to serve an amended answer. 69 Hun, 264. Subsequently the Atlantic Trust Company served an amended answer pleading further facts by way of avoidance, to which the plaintiff demurred on the ground that they were insufficient to constitute a defense. The demurrer was sustained, and .an interlocutory judgment entered, which granted leave to the defendant to plead anew; of which privilege the defendant availed itself, and filed and served a second amended answer. Upon the issuses so joined the action was tried, and a judgment ordered for the plaintiff.

A demurrer runs through all the pleadings, and the effect of the .interlocutory judgments is that the facts alleged in the complaint, unless successfully controverted or avoided, are sufficient to constitute a cause of action, and that the facts pleaded in the original and first amended answer by way of avoidance are insufficient to constitute a defense. The facts alleged in the complaint were proved on the trial, and thus, under our former decision, a cause of action was established, unless a valid plea in avoidance was proved.

• The Atlantic Trust Company, by way of a defense, proved that April 28, 1890, the United Electric Traction Company pledged to the trust company said 60,000 shares of stock as security for the repayment of all moneys loaned by the trust company on the promissory notes of the United Electric Traction Company ; and that April 28, 1890, the date of the contract of guaranty, and after the trust company had indorsed its receipt thereon and delivered it to the plaintiff, it loaned from time to time to the United Electric Traction Company large sums of money secured to be paid by eleven promissory notes, the first dated May 12, 1890, and the eleventh November 10,1890, given by the traction company to the trust company, which have not been paid, and by reason of these facts the trust company has a lien on the shares. It is not alleged in the .answer of the trust company, nor was it proved on the trial, that the plaintiff or the bondholders, for which it acted as trustee, had notice that the shares were so pledged ; and the Atlantic Trust Company, having contracted to hold the 30,000 shares as security for the 102 bonds, cannot now avail itself of the secret contract by which it received the shares in pledge as a defense to an action to compel it to perform its contract to hold them as security for the 102 bonds.

By reference to the contract of guaranty, it will be seen that it contains this covenant:

“And the United Electric Traction Company aforesaid does hereby, for itself, its successors and assigns, covenant, stipulate, and agree that the United Electric Traction Company aforesaid will not make, nor allow to be made or issued, any mortgage bonds, debentures, or any preference securities, other than the :$2,000,000 in preferred stock provided for in the said the United Electric Traction Company’s articles of incorporation, until all of the said 102 bonds above referred to, both principal and interest, ■shall have been paid or redeemed pursuant to the terms of said bonds.”

December 8, 1890, the United Electric Traction Company mortgaged its property to the Mercantile Trust Company (the plaintiff), as trustee, to secure the payment of 1,800 bonds, amounting to $700,000. As a defense, the Atlantic Trust Company alleges .that the execution of the mortgage was a violation of the above covenant, and that the plaintiff, being a party to the mortgage, cannot compel the defendant to deliver the 30,000 shares, which it alleges it has the right to retain as security for the payment of said eleven promisory notes. The answer to this is that the Atlantic Trust Company knew before the mortgage was executed that it was to be given, and its president advised that it should be executed to the Mercantile Trust Company as trustee. These facts were proved on the trial, and were not disputed, though the president of the Atlantic Trust Company was a witness. More than this, he corroborated the testimony of the witnesses who testified to these facts. The appellant, having waived the performance of the covenant, is estopped from urging its nonperformance as a defense to this action. The defendant gave no evidence of any defense not pleaded in its original and first amended answer; and it seems quite unnecessary further to discuss the propositions which were considered at general term, 69 Hun, 264; and subsequently at special term, on a demurrer to the first amended answer.

As a ground of error, the learned counsel for the appellant insists that the execution by the United Electric Traction Company of the guaranty was not legally established. It is urged that this contract is one which the officers of the corporation could not execute without the authority of the board of trustees. On this trial it was proved, and not denied, that the contract was executed by the president of the corporation, and that its corporate seal wa.s affixed. . This, the defendant insists, was not sufficient, and asserts that the plaintiff should have gone further, and proved that it was executed by the authority of the board of directors. We think the defendant is not in a position to raise this question. It is not a surety nor guarantor, but a mere depositary of the shares, under an agreement that it would hold them as security for the performance of the contract of guaranty. The fact that there may have been some informality in the execution of the contract of guaranty is not available as a defense to this defendant. It is in the same position as an agent who collects money for his principal, which the principal could not have collected in an action against the person who pays it. In such a case the agent cannot interpose as a defense, when called on to pay over the money to his principal, that he could not have enforced the demand as against the person from whom collected. It is like the case of a public officer who collects money upon an execution or a warrant which could not have been enforced had the person against "whom it was issued resisted. The officer is bound to pay over the money collected in accordance with the command of his warrant, and a defense which might have been available to the person from whom the money was collected is not available to the officer. People v. Brown, 55 3ST. Y. 180. It was not necessary for the plaintiff to prove that the board of directors authorized the execution of the guaranty in order to lay the foundation for a judgment against the defendant requiring it to deliver the 30,000 shares of stock in accordance with the agreement. The judgment should be affirmed, with costs.

All concur.


author: Van Brunt, P. J.

text:
    In the Matter of the Estate of Wilson G. Hunt, Deceased.

      (Supreme Court, General Term, First Department,

      Filed April 11, 1895.)

    Tax—Transfer—Exemptions.
    The clause in section 2, chapter 399 of 1892, in regard to persons, to whom the transferrer has stood in the “mutually acknowledged relation of a parent,” covers only the case where an illegitimate child has. been recognized by its parents and such recognition was mutual and has continued for ten years.
    Appeal from an order, fixing the amount of tax on a legacy,

      D. B. Ogden, for app’lt; Emmet R. Olcott, for resp’t.
   Van Brunt, P. J.

The legatee in this case was the niece of the testator; but it is claimed upon the part of the appellant that the testator stood to her in the mutually acknowledged relation of parent at the time of his death; and that,, therefore, the gift to her should be taxed at one per cent, instead of five per cent. The surrogate, in the court below, assessed the tax at five per cent., and fro'm the order thereupon entered this appeal is taken.

The section of the act which governs the question involved is section 2 of chapter 399 of the Laws of 1892, and, so far as it affects the question here, is as follows :

“ When the property or any beneficial interest therein passes by any such transfer to or for the use of any father, mother, husband, wife, child, brother, sister, wife or widow of a son or the husband of a daughter, or any child or children adopted as such in conformity with the laws of this state, of the decedent, grantor, donor! or vendor, or to any person to whom any such decedent, grantor, donor or vendor for less than ten years prior to such transfer stood in the mutually acknowledged relation of a parent or to any lineal descendant of such decedent, grantor, donor or vendor born in lawful wedlock, such transfer of property shall not be taxable under this act, unless it is personal property of the value of ten. thousand dollars or more, in which case it shall be taxable under this act at the rate of one per centum upon the clear market value of such property.

It is admitted that the legatee was not a child of the testator, nor was she a child who had been legally adopted by the testator; but it is urged that she comes under the third, class mentioned in, the section above quoted, which refers to persons who, while neither actual children nor adopted children, have sustained to the testator such a relation that they are entitled to the same consideration in the eye of the law as if they had been of his flesh and blood; in other words, that a person who has been treated as a child by the testator—whether he or she has beenadopted as provided by law, or whether he or she is of the testator’s blood or not—is entitled to the benefit of the statute. It is urged that the legatee in the case at bar was treated by the testator as his child, and that she lived with him as his daughter, and that, therefore, she is entitled to the exemption. Upon the other hand, it is claimed upon the part of the respondents that she was not acknowledged as his daughter by the testator, but that he in his will speaks of her as his niece, and that whenever services were rendered by the legatee to the testator were not those rendered by a child to a parent, but rather those of a relation who expected to be compensated bv the last will and testament of her relative. It seems to us, however, that an examination of the act clearly shows what the mutual acknowledgment of the relationship referred to in the act is intended to cover. First is mentioned the legitimate child ; next is mentioned the adopted child; and next, we think, is intended to be mentioned the illegitimate child who has been for ten years acknowledged as the testator’s child, and such acknowledgment has been mutual. That the question of legitimacy was in the mind of the framers of the statute is manifest from the next clause of the section in question. It says: “Or to any lineal descendant of such decedent, grantor, donor, or vendor, born in lawful wedlockthereby excluding from lineal descendants any -other person except those descending from the legitimate child. It is significant that the words “ lawful wedlock ” are used in respect to this matter of lineal descendants immediately after the mutual acknowledgment, and that it had not been at all considered necessary to refer to it when a child or children were spoken -of in the previous part of the section. It is evident that it was intended to limit the exemption of illegitimate descendants to the child, and not to extend the same to the descendants of such child. Furthermore, what do the words “mutually acknowledged” mean ? The word “acknowledged” is never applied to the admission of a fiction. It is only used in relation to a fact. When a fact is spoken of as being acknowledged, it means that the fact exists, and its existence is admitted. So, when the statute speaks of parentage being acknowledged, or of relationship being acknowledged, it means that the relationship existed, and has been openly acknowledged, and that yet the child acknowledged had not the rights of a child because born out of wedlock.

It is urged upon the part of the appellant that it seems clear that the only object the legislature could have in view in providing that the relation must be one which is mutually acknowledged was to declare the character and degree of evidence which the claimant must produce in order to sustain the claim ; that mutual acknowledgment does not create the relation, as it sometimes will the relation of husband and wife. The learned counsel is seemingly mistaken in regard to his assumption that the acknowledgment of the relation of husband and wife will create the same; whereas the law is well established that no amount of acknowledgment can make a contract of marriage. Such acknowledgment may be used as evidence for the purpose of establishing the fact that a contract of marriage had previously been entered into, but it cannot create such contract. If such contract did not exist, no amount of acknowledgment could bring it into being. And this view is entirely applicable to the case at bar. If the relationship does not exist, no amount of acknowledgment can create it, and was not intended so to do by the statute. All that the clause in-question seems to have been intended to cover was the case where an illegitimate child had been recognized by its parents, and such recognizance was mutual and had continued for ten years. In such a case it was intended that the legatee should have the benefit of the statute. We cannot imagine how it could have been the intent of the legislature to have made it possible to acknowledge or recognize a relationship which had no foundation in fact.

One of the lexicographers says:

“ ‘Acknowledge ’ is opposed to ‘ keep back ’ or conceal,’ and supposes that something had been previously known to us, though perhaps not to others, which we now feel bound to lay open or make public. Thus, a man acknowledges a secret marriage; one' who has done wrong acknowledges his fault; an author acknowledges his obligations to those who have aided, him.”

So, in the statute, the parent acknowledges his illegitimate child, and the child acknowledges his parent, and the mutual acknowledgment provided for by the statute takes place.

The order should be affirmed, with costs.

All concur.


author: Bradley, J.

text:
    Henry Walbourn, Resp’t, v. Edward J. Hingston, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    Release—Effect.
    In order to limit the legal effect of a release, the releasor must show either mutai mistake, or mistake on his part and fraud on the part of the releasee.
    Appeal from an interlocutory judgment, overruling a demurrer to the reply to new matter contained in the answer.
    The alleged cause of action is criminal conversation of the de-r fendant with plaintiff’s wife in the spring and summer of 3 891. The new matter alleged in the answer is that in April, 1892, the plaintiff received from the defendant the sum of $500 in full satis-r faction and discharge, among other things, of the damages mentioned and alleged in the complaint, and thereupon delivered loth e defendant a release in writing made and executed by him, whereby, in consideration of the said sum of $500, the plaintiff remised, released, and discharged the defendant “ of and from all and all manner of action or actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, events, executions, claims, and demands whatsoever, in law, or in equity, which against the defendant the plaintiff ever then had, or which he, or his heirs, executors, or administrators, thereafter could, should, or may have for, upon, or by reason of any matter, cause, or thing whatsoever, from the beginning of the world to the day of the date of said release.” The plaintiff, being required by order of the court to reply to such new matter, alleged by way of such reply that in October, 1890, an agreement, set forth, was made between him and the defendant, and “ that becanse of a disagreement over it and its terms the plaintiff and the defendant had a dispute, and growing out of the same, and solely relating thereto, the release set forth in answer of the defendant was executed, and the money so paid thereunder was paid and received only on and for damages or dues due from said Kingston upon and relating to said contract, and in no way related to the matters set forth in the complaint’; and that at the time of signing said release the “plaintiff had no knowledge of the wrongful acts alleged against the defendant in his complaint, and therefore could not have tried to settle his alleged claims as claimed in the defendant’s answer ; and he therefore denies each and every allegation of the defendant as set forth under the third clause of the answer, excepting as explained hereinbefore.” The defendant interposed a general demurrer to the reply.

      Henry B. Lovetand, for app’lt; Edward L. Jellinek, for resp’t.
   Bradley, J.

The plaintiff does not controvert the fact that he

made the release set forth in the answer, but alleges that it was not intended.to and did not embrace the matters constituting the cause of action charged in the complaint, and that it was made in reference solely to a certain other matter about which a controversy had arisen between the parties. Those allegations of the reply relate not. to the terms of the instrument, but to its purpose and effect. And in support of the assertion in that respect the plaintiff alleges that when it was made he was ignorant of the matters which constitute the subject of the cause of action set forth in his complaint. This alone is not sufficient to qualify the release or limit its terms and legal effect. The right to do so by oral evidence is dependent upon the charge of mutual mistake of the parties to the instrument in making and taking it, or fraud on the part of the defendant and mistake on the part of the plaintiff. Kirchner v. Sewing Mach. Co., 135 N. Y. 182; 48 St. Rep. 242. The same facts which could be proved to reform it may be available to limit its effect to a like extent as would the reformation if made. In the present case the plaintiff was, pursuant to the statute, put to his reply to the new matter in the answer. Code Civ. Proc. § 516. He did so. The question presented by the demurrer is one of pleading. And -for the support of his reply, it was necessary for the plaintiff to allege all the facts essential to overcome wholly or partially the effect which the terms of the release set up in the answer fairly import. This the plaintiff failed to do, as he neither alleged facts to the effect that it was made in terms so broad and comprehensive as to include the cause of action alleged in the complaint by mutual mistake of the parties to it, or by reason of any fraud on the part of the defendant. It is true that the plaintiff alleged in his reply that the release was made on settlement of a matter of dispute between the parties arising out of a certain agreement into which they had previously entered, and in reference to that controversy only, and that the plaintiff was then ignorant of the facts upon which this action is founded. It is not competent by oral evidence of such facts merely to contradict, qualify, or limit the terms of the release. This was sought to be done in Kirchner v. Sewing Mach. Co., and the view of the general term that it was permissible, 59 Hun, 186; 37 St. Rep. 189, was disapproved by the court of appeals, where it was said : “ The operation of such an instrument cannot be made to •depend upon oral testimony as to knowledge of the creditor, when he executed it, of the liability which he seeks to enforce.’’ 135 N. Y. 188 ; 48 St. Rep. 242. Such is the general rule as between parties to written instruments, in the absence of mutual mistake or fraud. In Noble v. Kelly, 40 N. Y. 415, the release was by construction held to have been so limited in its terms as not to embrace the entire subject of the action. And in Rosboro v. Peck, 48 Barb. 92, the question had relation to the consideration expressed in the release. This, as such, is always open to explanation by paroi. McCrae v. Purmort, 16 Wend. 460. It is unnecessary now to inquire how far and with what effect the facts stated in the reply would be admissible, if mutual mistake or fraud were alleged. As the reply charges neither, no effectual issue is tendered by it. The judgment should be reversed, with leave to the plaintiff to amend his reply on payment of costs of the demurrer and of this appeal.

All concur.


author: Dwight, P. J.

text:
    John B. Howe, App’lt, v. City of Rochester, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    1. Elections—Pull clerks.
    The inspectors of,, elections in the city of Rochester, elected in March, 1892, under the act of 1891, were authorized to appoint the poll clerks at the general election in November, 1892.

      2. Appeal—First instance.
    The appellant cannot raise, on appeal, an issue upon which the parties are concluded by the pleadings.
    Appeal from a judgment of the county court, reversing a judgment of the municipal court.

      Wm. Plumb, for app’lt; A. J. Rodenbeck, for resp’t.
   Dwight, P. J.

The action was to recover compensation for services rendered by the plaintiff as poll clerk of the second district of the twelfth ward of the city of Rochester at the general election held on the 8th day af November, 1892. That plaintiff acted as such poll clerk, and that his services were reasonably worth the amount claimed therefor, was admitted in behalf of the defendant. The question mooted was of the validity of his appointment. It was alleged in the complaint and admitted by the, answer that he was appointed by the inspectors of election of the district above named, and the averment of the answer was that such appointment was illegal, null, and void, for the reason that the law required that poll clerks for the several election districts of the city of Rochester should be appointed by the common council. Here, then, was the issue, and the only issue, presented by the pleadings in respect to the validity of the plaintiff’s appointment, viz. whether it should have been made by the inspectors of election or by the common council of the city. In the opinion of the learned county judge, and in the brief of counsel for the respondent here, the question is discussed of the validity of the election or appointment of one or more of the inspectors of election by whom the appointment of the plaintiff was made. But, aside from the consideration that the inspectors of election were de facto the incumbents of the office and their acts valid so far as they concerned the public or the rights of third parties, People v. Cook, 8 N. Y. 67, that question is effectually excluded from this case by the state of the pleadings above noted. By the allegations of both complaint and answer, it is established, for all the purposes of this action, that the appointment of the plaintiff was made by the inspectors of election, and no question is made but that the inspectors held and exercised their office in all respects de jure as well as de facto. It was too late on either appeal to raise an issue upon which the parties were concluded by the pleadings. The sole question in this case, therefore, as we regard it, is between common council and inspectors of election, viz.: To which office did the appointment of poll clerks pertain, at the time of the appointment of the plaintiff? He was appointed in October, 1892, at the first meeting of the inspectors of election, two of whom were elected and one appointed at the charter election in their district in March of that year. At that time it is conceded the provisions of chapter 7 of the laws of 1891 were in force, which provided for such election and appointment of three inspectors of election, who should act as such at all general and special elections held in their district during the ensuing year. The term of office of these inspectors, therefore, embraced the general election of November, 1892. But in the revision of the general laws of the state the legislature of 1892 enacted chapter 680 of the laws of that year, constituting chapter 6 of the General Laws, and to be known by the short title of “.The Election Law.” It was approved by the governor on the 18th day of May. This statute expressly repealed chapter 7 of the laws of 1891, as well as chapter 130 of the laws of 1842, of which the act of 1891 was an amendment, and contained the provisions that, unless otherwise provided, the inspectors of election, in cities, should be appointed by the common council (section 11.) It was also provided, in effect, by section 12 of the same statute, that where the inspectors were appointed by the common council the same authority should appoint the poll and ballot clerks, but where inspectors were elected they should appoint the clerks. At the same session of the legislature was enacted, and on the same day, May 18, was approved by the governor, chapter 7 of the revision, to be known by the short title of “The Public Officer’s Law.” By section 14 of that statute, it was provided that “if an office be continued by the general laws constituting the revision of which this chapter is a part, the person now lawfully holding such office shall, subject to the provisions of such general laws, continue therein for the term for which he was chosen, or, if holding ovér after the expiration of term, until his sucessor shall be chosen and. shall have qualified.” There can be no doubt but this provision covers the case of inspectors of election in cities who had been elected and appointed under the act of 1891. They were, therefore, continued in office until the charter election of March, 1893.; and, having taken office under a statute which provided for the election of inspectors, they were, by force of section 12 of the election law (supra), authorized to appoint the poll and ballot clerks. This we regard as the proper solution of the problem presented by the several statutes bearing upon the question here involved, and this view results in the reversal of the judgment of the county court, and the affirmance of that of the municipal court of Rochester. So ordered, with costs to the appellant in this court and the county court.

All concur.


author: Per Curiam.

text:
    Mary Phillips, App’lt, v. Margaret Lewis, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed April 11, 1895.)

    Teial—Issues not within pleadings.
    Where evidence, not within the pleadings, is admitted without objection or claim of surprise on the part of the adverse party, who introduces evidence to contradict it, it is error to refuse to submit the issues raised thereby.
    Appeal from ac judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      H. C. Milnor, for app’lt; John P. Herron, for resp’t.
   Per Curiam.

This action was begun April 23,1894, to recover the agreed price for board and a room from September 15, 1887, until May 1, 1888. The plaintiff claims for thirty-two and a half weeks, at the agreed price of $30 per week ($975), and admits a payment of $325, and demands a judgment for $650, with interest from May 1, 1888. The defendant asserts that she had a room and board for thirty-two weeks, between September 15, 1887, and May 1, 1888, at the agreed price of $15 per week, amounting to $470, which sum she alleges she has paid, and also alleges that the six-years statute of limitations is a bar to the action. The action was begun five years, eleven months, and twenty-two days after May 1, 1888, when it is agreed that the defendant left the plaintiff’s house. It is not alleged in the complaint or in the answer that the price agreed on, whatever it was ($30 or $15 per week), was payable weekly or at any particular time. On the trial the plaintiff testified—and in this she was corroborated by three witnesses —that the agreement was that the defendant was not to pay for her board until the time when she should sell certain Mexican land improvement bonds. The defendant denied that there was any such agreement. This evidence was admitted without objection on the part of the defendant that it was not within the pleadings. No objection was raised to its admissibility. At the close of the evidence, the plaintiff asked to go to the jury upon the question of fact raised by this testimony, which the court refused; and it was held, as a matter of law, that the plaintiff was only entitled to recover the agreed price for one week’s board. The plaintiff asked to amend the complaint so as to conform it to the facts proved. This motion was denied, and an exception taken. It was not asserted on the trial that the defendant was taken by surprise by the evidence offered in behalf of the plaintiff.

We think that the court erred in refusing to submit the question to the jury, and that the judgment and order should be reversed, and a new trial granted, with costs to the appellant to abide the event.


author: Parker, J.

text:
    Smith Williamson, as Executor, etc., Pl'ff, v. Jessie T. Banning, Def’t.

      (Supreme Court, General Term, First Department,

      Filed April 11, 1895.)

    Vendor and purchaser—Title.
    Where the vendor has no record title, cannot establish by secondary evidence the execution and delivery of a deed to a former grantor and is unable to prove that actual possession of the property was ever taken by or under the said grantor, the title he offers to the vendee is not marketable.
    Controversy submitted without action on an agreed statement of facts.

      James C. De La Mare, for pl’ff; William Langdon, for def’t.
   Parker, J.

It may be possible that facts exist which would establish a marketable title in the plaintiff, but they are not stated in this record. Plaintiff claims through one James H. Halloclc, and, to show title in him, is able to produce only a record of a paper purporting to be a deed to him by James Rutherford, dated May 8, 1854, and recorded in the clerk’s office of the county of Westchester May 17, 1854. The record of such instrument purports to have been acknowledged by the grantor before a commissioner of deeds for the state of New York, in Philadelphia, state of Pennsylvania; but there is no certificate recorded therewith under the hand and seal of the secretary of state of the state of New York certifying that the person taking such acknowledgement was a commissioner of deeds of the state of New York, as required by statute, in order to entitle a deed “to be used, recorded or read in evidence.” The agreed statement of facts concedes that it cannot be shown outside of the record that the deed was actually executed, acknowledged, and delivered. The deed cannot be found, and it admitted that no living witness can now be produced who took part in its execution, or who can state of his own knowledge any facts concerning it. Nor does it appear that Halloclc took possession under such instrument. On the contrary, it is stipulated “that there is no evidence now known to the parties to this submission that John Halloclc ever took actual possession of the said premises under or after the said deed of conveyance last above described.” Summarized, the situation is as follows: The plaintiff has no record title, cannot establish by secondary evidence the execution and delivery of a deed tti-Hallock, and is unable to prove that actual possession of the property was ever taken by or under Hallock prior to August, 1886. The title which he offers to the defendant is not therefore marketable.

Judgment is ordered that the defendant be released from the contract, and that the plaintiff pay to her the $500 advanced on account of the purchase price, with interest from November 26, 1894, together with the sum of $100 for expenses incurred in examining title, with costs.

All concur.


text:
    Emma C. Lee, Resp't, v. Emeline Lee, as Administratrix, etc., App’lt.
    ’ (Supreme Court, General Term, First Department,

      Filed April 12, 1895.)

    1. Executors—Disputed claim.
    Upon a reference of a disputed claim under ¡section 2718 of the Code, the claim may be amended. >
    2. Same—Application to referee.
    The refusal of the referee to permit the claimant to amend for the alleged reason of want of power, does not necessarily bar an effectual application to the court for the amendment.
    Appeal from a judgment, allowing claimant to amend or supplement her claim.
    , Rufus Scott, for app’lt; Clarence A. Farnum, for resp’t.
   Bradley, J.

The claim as presented by the plaintiff to the defendant against the estate of her intestate, and referred with approval of the surrogate, purported to have arisen during the period from 1882 to 1890, both inclusive. The reference was perfected Jtine 12, 1893. On the hearing the defendant gave proof of payments of money made by. her intestate to the plaintiff prior to 1882, and in the years 1878, 1880, and 1881. Thereupon the plaintiff sought to prove that during those years the defendant’s intestate had received from her other property than that included in the claim so presented. The evidence was excluded, and application then made to the referee by the plaintiff for leave to amend her statement of claim was denied for the asserted reason of want of power. Thereupon the motion was made to the court, and the order appealed from granted, permitting the plaintiff to do so. Prior to June, 1893, such an amendment was not permissible. Eldred v. Eames, 115 N. Y. 401; 26 St. Rep. 277 ; Von Hermannni v. Wagner, 81 Hun, 431; 63 St. Rep. 185. The statute, as amended that year, provides that on entry of the order of reference in such a case the proceeding becomes an action in the supreme court, and that the referee has the same powers as if the reference had been made in an action in which the court might by law direct a reference. Code Civ. Proc. § 2718. This provision of the statute had become operative at the time the defendant made'her agreement to refer. In its application to a case of this character the statute has extended the definition as was before given of an action. Id. § 3333. And it is brought within the provision that the court may, at any stage of it before or after judgment, in furtherance of justice, amend any pleading or other proceeding by inserting any allegation material to the case. Id. § 723. Since this is made an action, it comes within and subject to the rules of practice applicable to actions for all purposes consistent with its nature. The method of instituting it remains as before. The reference by the approval of the surrogate is made upon the agreement in writing of the creditor and the personal representatives of the decedent, founded upon the presentation, verified, of the claim, and the doubt entertained by the latter of its justice. There is some reason for the supposition that it may not have been contemplated, when the statute was amended, that the representatives in this form of proceeding would be required to contest any claim other than that which should, preliminarily to the reference, be verified and presented as prescribed by the statute. While there may be reasons for caution in allowing amendment of claim in such cases, and why it should be done only when essential to the promotion of justice, they do not deny to the court the power to permit amendment as of pleadings and proceedings in actions. The main purpose of the amendment sought in the present case, as indicated by the appeal book, is to enable the plaintiff to support the claim which was referred by proving that the moneys which the defendant seeks to prove were paid by her intestate to the plaintiff were moneys due to her from him for and on account of transactions prior to 1882, aud therefore were not properly applicable to her claim as presented, which commenced with that year.

It is urged on the part of the defendant that, inasmuch as the statute provides that on the entry of the order of reference the proceeding shall become an action, the proceedings subsequent to that time only can be treated as in an action. We think that the entry of the order was intended as the event upon which the proceeding in its entirety should become an action. Such is the fair import of the provisions of the statute, and, as the consequence, the provision of section 416, Code Civ. Proc., that a civil action is commenced by the service of a summons, is by the amendment in question qualified by the exception thus created. This must be treated as an action, and as such, consequently, its proceedings are subject to the exercise of the power of the court as they are in other actions which have been referred to a referee for trial. Adams v. Olin, 78 Hun, 309 ; 60 St. Rep. 695 ; Hustis v. Aldridge, 144 N. Y. 508 ; 64 St. Rep. 40. The refusal of the referee to permit the plaintiff to amend for the asserted reason of want of power was not necessarily in the way of an effectual application to the court for the amendment. Hor did the fact that the action was referred deny to the court the power to grant the application to amend. In view of the ultimate purpose, as above indicated, of the amendment sought by the plaintiff, the allowance of it was not unreasonable or unjustly prejudicial to the defendant. The order should be affirmed, without costs.

All concur.


text:
    In the Matter of the Judicial Settlement of the Accounts of Benjamin F. Grant, as Executor of James Benedict, Deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    W ills—Construction.
    Where the testator gives his widow the right to the rents and profits of the estate for life and, if that should be insufficient for her support, then to the use of the principal for this purpose, she is entitled to the possession of the eorpm of the estate.
    Appeal from a decree, settling the accounts of the executor.

      J. O. Sebring, for app’lts; J. P. Parkhurst, for resp’t.
   Bradley, J.

This appeal was heard and decision made in

October, 1891, upon opinion of Lewis, J. It was then held that the widow of the decedent was entitled to the possession of the estate, as no trustee of it was appointed by the will. In that respect the determination of the surrogate’s court as to the construction of the will was sustained. The proceedings were remitted to the surrogate to take proof of certain items of $50 and $100, allowed to the executor, because it did not appear by the record that they should have been allowed. The matter thereupon came again before the surrogate’s court, and proof for the allowance of tiróse items was made. No question is now raised in that respect. But it is urged by the learned counsel for the appellants that a reconsideration should be had of the question of construction and effect of the provision of the will upon which it was held on the former review that the widow was entitled to the possession of the fund. And it is insisted that this is required by the decision of the court of appeals in Re McDougall, 141 N. Y. 21; 56 St. Rep. 579. There seems to be a substantial difference in the provisions of the wills in the two cases upon the subject to which the question here relates. There the testator gave the rest and residue to his wife, “to be used and enjoyed by her during her life or widowhood.” By the will in question the testator gave his widow the right to the rents and profits of the estate for life, and, if that should be insufficient for her support, the corpus of it might be used for that purpose. The right so given in such event to use the principal of the fund distinguishes this from the McDougall Case, and such distinction has recognition in the views there expressed by Judge Peckham that “in other cases where it has been held that the legatee was entitled unconditionally to the possession of the legacy without security, other facts existed, such as where the language of the will made it manifest that the testator intended to give to the legatee power to use in his discretion some portion of the corpus of the estate for his support.” Such is the purpose expressed in the will in question, and therefore the views of the court on the former review are readopted. The surrogate, however, in his findings states that by inadvertence a certain sum of $50.88, allowed to the executor, and included in the decree, should be deducted from it.

With that modification the decree of the surrogate’s court should be affirmed, without costs. All concur.


text:
    In the Matter of the Judicial Settlement of the Accounts of John B. Fuller, as Executor of Sarah A. Tillman, Deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    Will—Equitable conversion.
    Where the testatrix gives to her husband the use during his life of all her real estate, and, if that should be insufficient for his support, directs the executors to use a requisite portion, or, if necessary, the whole, of the real estate for such purpose, and to divide the proceeds from the sale of any of her real estate, if any is left, equally between her children, giving them full power and authority to sell, transfer and convey, by deed or otherwise, such real estate, the power of sale operates as a conversion of the land into personalty.
    Appeal from an order, opening a decree rendered on the settlement of the accounts of the executor.

      William E. Hobby, for app’lts; James S. Thompson, for resp’t.
   Bradley, J.

The ultimate disposition of some of the questions in this matter may be dependent upon the effect of certain provisions of the will bf the testatrix. By it she gave to her husband the use during his life of all her real estate, and, if that should be insufficient for his support, the executors were directed to use a requisite portion, or, if necessary, the whole, of the real estate for such purpose. Then followed the provision that:

“ The proceeds from the sale of any of my real estate, if any left, shall be divided equally, «share and share alike, between my three children, above mentioned. I give my executors, hereinafter named, full'power and authority to sell, transfer and convey, by deed or otherwise, my real estate, to the same extent I might do if living.”

Only one of the two persons nominated by her to be executors accepted the trust. By the terms of the will, he had all the powers given to both. The testatrix survived her husband. Within a year after her death, two of the children joined in a conveyance to the third, Bhoda Oxley; and she thereupon made to Lorenzo B. Doty her bond, with a mortgage on the premises, to secure the payment of a loan of $2,000 made by him. Of this money, $150 was taken by the executor, and the residue was divided between the other two children, Mrs. McKeon and Charles H. Tillman, by whom the conveyance was made. The premises were afterwards conveyed by Mrs. Oxley to Webster and Arnold, subject to such mortgage, upon which there remained unpaid $1,600, and they thereafter made further payments upon it.' Afterwards a judicial accounting of the executor was had, and a decree of the surrogate’s court to that effect entered, in which it was ordered that there was a deficiency of $443.72 in the assets of the estate of the decedent, and that it remains a lien and charge on the estate ; that part of said deficiency consisted of a claim of the executor amounting to $19.26, a claim of Charles Tillman of $211.56, and a claim of J. H. Buell of $156.85 ; that such three claims were unpaid, and were valid and subsisting liens upon said estate ; and that the executor pay them. The petition upon which this decree was opened was that of Doty, the mortgagee, and Webster, one of the grantees of the premises. They were not made parties to the proceeding in which the decree was made; and the petition contains various alleged reasons for the relief sought, among which are the charges-that the claim of Buell was barred by the statute of limitations, that of Tillman is fictitious, and not a just claim against the estate, and that the mortgage to Doty and the deed to Webster and Arnold are superior to the claim of any creditor of the decedent upon such land. On the part of the appellants, it is said that there was no occasion to make the petitioners parties to the proceeding, because at the time it was taken the claims of creditors-could not be charged upon the land of which the testatrix died seized, because, when the proceeding for the judicial accounting-was instituted, more than three years had elapsed after letters testamentary were duly issued. Code Civ. Proc. § 2750. •

If, as claimed by the learned counsel for the appellants, the power of sale was given merely to divide the proceeds among the-three children, they took title subject to the execution of the power, and. the three-year limitation was a bar to a proceeding in the sursogate’s court in behalf of the creditors for disposition of the land to obtain payment of their claims from its proceeds; and upon that assumption, the petitioners were not necessary.parties to the-judicial accounting. Sayles v. Best, 140 N. Y. 368 ; 55 St. Rep. 779. But this evidently was not the view of the surrogate. He treated the power of sale as not thus limited, and concluded that by the will there was a conversion of the real estate into personalty. For that reason, the decree declared that those claims were valid and subsisting liens upon the estate, and directed the executor to pay them. The estate referred to in the decree was none other than that furnished by the land before mentioned. Such determination and direction declared by the decree gave the petitioners a standing which enabled them to seek relief against it. In re Flynn, 136 N. Y. 287; 49 St. Rep. 388. And there are-matters alleged in the verified petition justifying the opening of the decree of the surrogate’s court. Charles Tillman does not appeal; and, as it is not claimed in behalf of appellants that any claim of the creditors can be effectually asserted against the land in question upon the idea that it can be treated as personalty, there is no-occasion to consider that question on this review. The order opening the decree was authorized by the statute (Code Civ. Proc. § 2481), and was properly granted. The order should therefore be affirmed.

All concur.


text:
    In the Matter of the Judicial Settlement of the Account of Emily C. Proctor, as Administratrix of John Biden, Deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    Will—Increment.
    A bequest to the widow of the interest, income and profits of a certain-sum, which is to be kept safely and securely invested in good, approved securities as long she shall he entitled to the interest -thereof, does not entitle her personal representatives to the premium accruing on the securities in which the money is invested.
    Appeal from a decree, settling the accounts of the administratrix.

      Waldo G. Morse, for app’lts; W. Martin Jones, for resp’t.
   Bradley, J.

By his will, John Biden, deceased, gave to Emma Biden, during the period she should remain his widow, “the interest, income, and profits of the sum of six thousand dollars, which interest or income shall be payable to her at the time the same accrues on the investment of said six thousand, dollars." The executors of his will invested upon such sum of $6,000 in Rochester city water bonds, upon which the widow received the interest up to January 1, 1894, at the rate of seven per cent, per annum. Sbe died February 11, 1894. At that time the bonds were worth a premium of twenty-seven per cent., and were afterwards sold by the administratrix with his will annexed for $7,620. The surrogate determined that the representatives of the widow, deceased, were not entitled to the premium received upon the sale of the bonds. From the portion of the decree to that effect this appeal is taken. They were allowed interest upon the bonds from January 1, 1894, to the time of her death. The controversey arises upon the use of the word “profits,”—the purpose intended by it in the connection in which it appears in the will, and in its relation to the fund invested. The income of the fund evidently was intended for the beneficial enjoyment, of Mrs. Biden while she should remain the widow of the testator. It is urged that something more was intended by the testator, and in support of that view reference is made to the provision of the will that the “ interest or income shall be payable to her when it accrues on the investment,” and to the fact that in such direction the word “profits ” is omitted. There is,'however, nothing in the purport of the will manifesting an intent that profits, as distinguished from current income, should become part of her estate after her death. The use of the expression “ interest or income ” instead of “ interest and income," as first used in the will, and the subsequent provision “that my executors shall keep invested safely and securely the said six thousand dollars in good approved securities as long as my wife shall be entitled to the interest thereof,” tend to show that the terms “ interest ” and “ income ” are synonymously used, and that the design was that the product of t-he fund should and would bo interest; and while the interest or income, as well as increased value of the securities, may be treated as “profit" that term, in common parlance, is the pecuniary advantage resulting from dealing or trafficking in property. It is evident that the testator did not intend that the fund should be used in that way, because he directed that it should be invested in securities as long as Mrs. Biden should remain his widow, and that his executors should “ have the care, custody, and control of the same during that time.” Although, on the termination of the legacy, the testator-bequeathed “ three-fourths of said six thousand dollars ” in one direction, and one-fourth of the same in another, this does not seem to have any significance on the question under -consideration as the will contains a residuary clause. It is very likely that no accretion to the fund was contemplated when the will was made. The purpose was the investment of it in interest-bearing securities. The interest would be a fixed rate upon a definite sum payable at some time in satisfaction of the obligation. The rate of interest upon the bonds in question was so large, and the death of the legatee so long before their maturity, that they then commanded a premium in the market. It had been higher, itnd would continue to diminish until the value of the securities settled to par. It could not be ascertained what, if any, the accretion would be until the termination of the widow’s relation as legatee; and it is difficult to see in the will any indication of a purpose that such increase in value, to be ascertained after and as •of the time of her decease, should be treated as profits, and go to her personal representatives. The legacy in view by the testator was evidently intended for the use and enjoyment of the widow. It is not seen that by the terms of the will this accretion, as of the time of the death of the widow, was a situation or product contemplated by the testator or intended to be covered by the use of the word “ profits,” nor docs such seem to be the fair intendment -of the words “interest, income, and profits,” applicable as they were to the investment of a fund in securities bearing a fixed rate -of interest payable to the legatee as it accrued. The more reasonable view of the words of that expression is that they were tautological. And, upon the question of their application to their increased value of the fund, this case comes within the principle of cases heretofore determined by the courts of this state. In re Gerry, 103 N. Y. 445 ; 3 St. Rep. 638 ; In re Clark, 62 Hun, 275 ; 42 St. Rep. 300; Duclos v. Benner, 62 Hun, 428; 42 St. Rep. 929; Id., 136 N. Y. 560; 49 St. Rep. 690; Cross v. Trust Co., 75 Hun, 533; 57 St. Rep. 656 ; In re Vedder, 42 St. Rep. 300. If such had been the purpose of the testator, he could, by some expression to that effect in the will, have included a bequest of any increase in value of the capital which might arise from the investment. But the principal sum of the bonds belonged to the estate of the testator, and there is nothing in the will to take it out of the general rule on the subject that the increment from natural causes is regarded as a part of the capital or principal fund, and goes to the remainder-man or residuary legatees. The decree of the surrogate should be affirmed. All concur.


text:
    In the Matter of the Application for the Probate of the Will of John Murphy, Deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    "Witness—Section 836.
    Where the validity of a will is in question, the provisions of section 836 of the Code may "be waived by any one of the persons named in the section, and, to make the waiver effective, it is not necessary that they should unite.

      Appeal from a decree, admitting the will to probate.

      P. F. King and Charles Hickey, for app’lts; E. J. Taylor and John E. Pound, for resp’ts.
   Bradley, J.

On December 20,1892, the decedent was a resident of the city of Lockport, N. Y. He had reached the age of eighty-seven years. He had become feeble, and was confined to his bed. His property—mostly personal—amounted to about $25,000. He had been twice married, and was a widower; had no children living. He was survived by grandchildren, a sister, and nephews and nieces. On the morning of that day his attendants, thinking he was in a dying condition, sent for the priest who came; and, after an interview with Murphy, he went out, and shortly after returned with a lawyer. The will was then drawn, persons were called to subscribe it as witnesses, and the will was executed. , By it he gave to St. Patrick’s Roman Catholic Church, of Lockport, $1,000; to his nephew William Murphy, $1,000 ; to his nephews and nieces James Horton. John Horton, Samuel Horton, Nicholas Horton, Sarah Horton, and Ellen Horton, $500 each ; to his nephew James Kelly, a house and lot; to Luke Mullett, about $2,500, by abatement of that amount of his bond and mortgage held by the decedent; and to the Right Reverend Stephen Y. Ryan, of Buffalo, N. Y., all the rest, residue, and remainder of his estate. And he appointed Rev. Patrick J. Cannon, the priest before mentioned, and Michael Mullett, as executors of the will. It is urged on the part of the contestants. ■ (1) that Murphy was incompetent to make a will; and (2) that it was the product of undue influence.

He had formerly been an active, vigorous man. But for about twelve years before his death he had been more slovenly in his personal habits, and somewhat secluded. He had a severe sickness about one year before his death, and afterwards, about three weeks before he died, he was, by illness, confined to his bed, and so continued until his death, December 28, 1892. There was' much evidence given on the part of the contestants relating to his appearance, conduct, and habits during the last year of his life, and to his appearance during his last illness, tending to prove his indifference to matters to which his attention was called, and a failure to recognize his intimate friends and acquaintances, and other circumstances bearing upon his apparent .mental condition, from which the inference was permitted that at the time the will was made he was not capable of comprehending the condition of his property, and his relations to those who might become the objects of his bounty, and the scope and bearing of the provisions of his will. His condition had become alarming to his attendants when the priest was sent for. This was done without his knowledge. The priest came, and, after remaining alone with Murphy for some time, departed, and soon after returned with a lawyer, by whom the will was drawn in the presence only of the priest and the decedent. Then the subscribing witnesses were called in, and the will was, in due form, executed. In view of these facts, and of the provisions of the will, it is urged, in addition to the charge of mental iacompetency of Murphy, that it was the result of undue influence upon him.

The evidence of what took place relating to the will before and at the time it was drawn is in the evidence of the priest, only,, and is to the effect that Murphy requested him to draw his will He declined, sayiag he would get a lawyer. He did so, and when he returned with the lawyer the priest suggested to Murphy that it would be proper for him to leave something to the church, and the latter concluded to give $1,000 to it. Thereupon, inquiring to whom he wished to leave other portions of his property, he proceeded to give the names of those to whom specific legacies were given. Then, being asked what he wanted to do with the rest of his estate, he said to the priest, “ Take it, and do what you like with it;” that “he did not know what he would do with it.” The: priest said that would not do, he did not want it, and finally suggested that he could leave it to the bishop, to which he consented, and the residuary clause to that effect was added. The evidence of the priest is to the effect that the provisions of the will were the. .result of voluntary action and direction of Murphy; that he expressed a desire to give the residue of his estate to some charitable purpose, andón the suggestion of the priest, who advised him that it was probably too late for that, in view of the short time he might live, he made the' bishop, with whom' he had no personal acquaintance, the residuary legatee. His securities and money, which constituted the most of his estate, were, by his direction, handed over to and taken by the priest, into his possession, shortly after the will was executed; and there is some evidence of Murphy’s subsequent, declarations in recognition of the will, and tending to indicate his understanding of its provisions. The fact that none of his four grandchildren had any consideration by his will, may not be so remarkable as it would seem if his relations with them had been intifnate. They were the children of the issue of his first marriage, in Canada. He there separated from his wife, and came into this state, and never after cohabited with her; nor, so far as appears, did he have any communication with her, or with the children or grandchildren. He, for some time prior to his last sickness, had been very penurious in his habis; so much so that he had denied to himself the comforts of life, although he had money, and available, productive securities. At the time he made the will, he evidently was very sick. He previously, and on that day, suffered much vain. And it may be that he had then become satisfied or apprehensive that his continued life would be brief. This may account somewhat for his willingness or desire that his assets be taken by the priest into his possession. It does not appear that he had ever before made any will, or expressed any desire about the ultimate disposition or distribution of his property. And it may be that, but for the suggestion then made to him upon the subject,, no will would have been executed. It is also urged as improbable • that Murphy intelligently placed in the priest the confidence indicated by the will, and by banding the property over to him, because, as there is evidence tending to prove, Murphy had not, for some years, manifested any interest in the church, and had spoken in terms harshly and derogatory of him. The significance of his remarks referred to is dependent upon the circumstances under which they were made, and which do not very clearly appear. Upon the evidence, as a whole, the question was one of fact, whether the will, as made, voluntarily expressed the intelligent purpose of the deceased.

On the part of the contestants, Thomas B. Cosford, a practicing physician and surgeon, of some years’ experience, was called as a witness, and testified that he professionally attended Murphy from the 8th day of December, 1892, until his death. Thereupon the heirs and next of kin of the decedent waived the provisions of section 834 of the Code of Civil Procedure, so far as the were applicable to the witness, and offered to prove by him that from the time he commenced attending him, on December 8,1892, to the time of his death, on the 28th of that month, he was continuously delirious, and of unsound mind, and incompetent to make a will. The •evidence so offered was' excluded'upon the objection of the proponents, who were the persons named as executors in the will, and exception was taken. Prior to the amendment of 1893 of section 836 of the Code, the objection would have been well taken. Renihan v. Dennin, 103 N. Y. 573; 4 St. Rep. 261; In re Coleman's Will, 111 N. Y. 220; 19 St. Rep. 501. The amendment took effect fifteen days before the evidence was offered, and, as amended, the section contains the following provisions:

“But a physician or surgeon may upon a trial or examination disclose any information as to the mental or physical condition of the patient who is deceased, which he acquired in attending such patient professionally, except confidential ’communications and such facts as would tend to degrade the memory of the patient, when the provisions of section 834 have been expressly waived on such trial or examination by the personal representatives of the deceased patient, or if the validity of the last will and testament of such deceased patient is in question by the executor or executors named in said will or the surviving husband, widow or any heir at law or any of the next of kin of such deceased or any other party in interest.” Code Civ. Proc. § 836.

The amendment of 1893 had relation only to such waiver when the validity of the last will and testament of a decedent is in question. Before then, in such case, the right of waiver was solely with the executors named in the will. It is now urged on the part of the proponents that it was the legislative intent that all persons coming within the relations there mentioned should unite to create the waiver, and therefore the word “or” should be treated as “and,” for the purposes of the interpretation of the amendment. It cannot reasonably be so construed. The purpose of the amendment evidently was to open more widely the door to the introduction of the evidence of medical attendants of a deceased patient, when the validity of his will should be in question. The right of waiver was therefore extended to others having the relations mentioned to the deceased, and to those having the legal relation of parties in interest, and who are properly in the action or proceeding in which the question arises before the court. There is no question of public policy, recognized at common law, involved. The restriction, so far as it exists, in such case, is statutory only. 1 Greenl. Ev § 248. Rex v. Gibbons, 2 Car. & P. 97. It follows that the exclusion of the evidence of the doctor thus offered was error. And, as the contestants may have been prejudiced by its exclusion, the decree of the surrogate’s court must be reversed, and a new trial granted, with costs of this appeal payable out of the estate, to abide,the event. And, as the evidence presents questions of fact, such new trial should be had at the circuit court of Niagara county of the questions: (1) Did the decedent, John Murphy, at the time of the execution of the will, or the 20th day of December, 1892, have testamentary capacity ? (2) Was the instrument purporting to be the last will and testament of the decedent voluntarily made by him ? (3) Was the-execution by the said decedent of the instrument purporting to be his last will and testament, of date December 20, 1892, procured by fraud, circumvention, or undue influence practiced upon him ?

All concur.


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    Gilbert Gerould, App’lt, v. David Cronk, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    1. Justice’s court—Pleading—Demurrer.
    In justice’s courts, the misjoinder of a cause of action is not, strictly as such, a ground of demurrer.
    2. Same—Answer.
    Nor is such misjoinder the subject of allegation in the answer.
    3. Same—Objection, how taken.
    The objection to the misjoinder of alleged causes of action in a complaint in justice’s court must he taken in such manner as to have a ruling of the justice upon it before proceeding to trial of the action, otherwise it is waived. •
    Appeal from a judgment of the county court, reversing a judgment of a justice’s court, entered on a verdict in favor of plaintiff.

      Fary B. Beecher, for app’lt; I. A. Seaman, for resp’t.
   Bradley, J.

There was a misjoinder of causes of action in the complaint. This the defendant alleged, with other matters in his answer, and at the close of the plaintiff’s evidence made it one of the grounds of motion for nonsuit. The motion was denied by the justice, and judgment was afterwards rendered upon the verdict of the jury for the plaintiff. In justices’ courts, the misjoinder of causes of action is not a ground for demurrer, strictly as such. Code Civ. Proc. § 2939 ; Lapham v. Rice, 63 Barb. 485. But it is a matter for objection to be taken in due time, and, if not so taken, is waived. Whitney v. Crim, 1 Hill, 61; Dunham v. Simmons, 3 id. 609 ; Willard v. Bridge, 4 Barb. 361. And when his complaint embraces alleged causes of action, both in tort, and on contract, the plaintiff, in case of his recovery, is denied the benefit of execution against the person of the defendant. Code Civ. Proc. § 2937. This was the rule at common law, and the nature of the execution to which a plaintiff may be entitled is dependent upon the character of his complaint. In the present case the plaintiff gave evidence to the effect that the defendant’s sheep and horses entered into the plaintiff’s premises, and injured and. partially destroyed his crops of barley and peas. The plaintiff testified that there were no unsettled matters between him and the defendant other than the damages to his crops and to his plow. The matter of the plow, as he testified, was that he lent a plow to the defendant, who promised to return it in good order, and to furnish a new point for it; that he failed to do so; and that the repair of the plow cost twenty-five cents, and the price of a new point was sixty cents,—thus making only eighty-five cents as damages for the alleged breach of contract. The misjoinder of causes of action is not a “defense,” in the sense applicable to that term, and therefore is not the subject of allegation in the answer. The justice may not necessarily be advised of the contents, of the pleadings when they are in writing and filed with him, unless his attention is for some purpose particularly called to them. So far as appears, the question of misjoinder of causes of action in the complaint was not raised by any suggestion, objection, or application made to the justice or his court until after the close of the plaintiff’s evidence, and then by motion for nonsuit on that and other grounds. The defendant could properly in the outset have moved the justice to direct the plaintiff to elect on which alleged cause of action he would proceed to trial, or havespecifically raised the question by objection in such manner as to call upon the justice to rule upon it. Then his refusal to require the plaintiff to elect, or the overruling of the objection, would be available error. In a court of record, misjoinder of causes of action appearing on the face of the complaint is waived, unless the objection is taken by demurrer on that ground. Code Civ. Proc. §§488, 499. And the plaintiff, upon or without the determination of the issue of law by the court, may amend his complaint. In analogy to that practice, and upon that theory, the objection to misjoinder of alleged causes of action in a complaint in justice’s court should be taken in such manner as to have a ruling of the justice upon it before proceeding to trial of the action. This was substantially the practice applicable to justices’ courts before the Code. In Dunham v. Simmons, 3 Hill, 610, it was said that “the misjoinder should have been objected to by demurrer,” and the same was held in Willard v. Bridge, 4 Barb. 361, 365 ; Dean v. Gridley, 10 Wend. 254. For obvious reasons, liberality in pleading is extended to justice courts, and objections must be distinctly taken to support the charge of error on-review. As the defendant did not in the outset, and before proceeding to the trial, by an objection call upon the justice to rule upon the question of misjoinder of causes of action alleged in the complaint, he must be deemed to have waived such objection. The objection is one to be raised preliminarily to the trial. It constituted no defense on the merits, and was not available to the defendant upon motion for nonsuit. A careful examination of the evidence leads to the conclusion that the verdict of the jury was permitted by it, and that there was no error in the reception and rejection of evidence on the trial. The judgment of the county court should be reversed, and that of the justice affirmed.

All concur.


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    Mary O. Dakin, as Executor, etc., Resp’t, v. Eldreth A. Walton, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    Evidence—Declarations—Agent.
    In an action for the price of goods, instituted after the death of the vendor and his employe who was in charge of the business and made the sale, the purchaser may testify that the price, agreed upon between himself and. the clerk, was less than the amount stated in the entries made by the latter in the account books.
    Appeal from a judgment in favor of the plaintiff.

      Charles A. Hawley, for app’lt; George L. Bachman and D. N. McNaughton, for resp’t.
   Bradley, J.

The plaintiff’s testator, for some years prior to his death, was engaged in the coal business at Geneva, N. Y. The purpose of this action was to recover a sunnalleged to be due from, the defendant for coal sold and delivered to him. From in September, 1890, until the time of his death, in March, 1893, the plaintiff’s testator, by reason of his illness, gave no personal attention to the business. Dnring that period his business of selling coal was transacted by George Patterson, who had for many years been in his service. Patterson died in May, 1893. And in evidence relied upon to prove the sale and delivery of the coal in question to the defendant was mainly that furnished by the testator’s books of account, and by the fact that bills rendered to the defendant of coal sold to him were retained by him for considerable time without any objection made to them in that respect. The entries of the account in question were made in the books by Patterson, and after his death there seems to have been no evidence of the sale of the coal to the defendant available to the plaintiff other than that furnished by the book. After the preliminary proof requisite in such case had been given, the account book was introduced in evidence. This was permitted by the exigency of the situation arising from the death of the person having charge of the business, and who made the entries in the book. Arms v. Middleton, 23 Barb. 571-573. The plaintiff caused a statement of the account for coal against the defendant to be delivered to him. In it the price of the coal was inserted, as it appeared on the book, at $5.50 per ton. The defendant afterwards returned the bill, with a statement written by him at the bottom of it to the effect that reduction should be made to $5 per ton as agreed with Patterson, and with the bill inclosed his cheek to plaintiff for the amount so reduced. This the plaintiff did not accept, but returned the check to the defendant with another bill, increased $44.28 by the addition of an item of that amount omitted in the former bill as rendered. This he had retained two or three weeks when this action was commenced. It is claimed on the part of the plaintiff that the retentian by the defendant without objection of the account as first rendered for five or six weeks, and the other for the time before mentioned, constituted a stated account. The plaintiff was at liberty to so treat the first bill rendered, and then it may have been treated as presenting prima facie the state of the account between the parties. Lockwood v. Thorne, 13 N. Y. 285. The matter of a stated account is one of mutuality of the parties to it. That bill was not treated by the plaintiff as the entire account, and she corrected it by adding the further item of $44.28. But the final treatment by the defendant of the first bill rendered was such as to permit the inference that he recognized the correctness of the quantity of coal stated in it, and the same conclusion is allowable as to the other and later bill rendered. It cannot be said that the defendant was concluded as to the price in it. He offered to prove a conversation had by him with Patterson in regard to the purchase of coal in the spring of 1892, and before the coal in question was delivered, and the evidence was excluded. This was error. Patterson then had charge of the business of selling coal for the plaintiff’s testator, and it was within his apparent authority to agree upon the price of coal sold by him, and if, as the defendant insists, Patterson agreed to sell him the coal so delivered at $5 per ton, it was competent to prove the fact. It cannot be assumed that the defendant may not have been prejudiced by the exclusion of the evidence. The judgment should be reversed, and a new trial granted, costs to abide the event, unless the plaintiff stipulate to reduce the recovery, aside from costs, to $334.75 and interest on $243.58 from February 20, 1893, and on $91.17 from May 20,1893, and in that event the judgment beso modified, without costs of this appeal to either party.

All concur.


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    Peter Scherer, App’lt, v. Holley Manufacturing Company, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    1. Master and servant—Appliances.
    The master is liable for injuries to his servant, if they result solely from his failure to exercise reasonable care in furnishing and maintaining suitable instrumentalities for the service, or in supplying a safe place for his employes to do their work.
    2. Same.
    He is responsible for the consequences of another servant’s negligence in the performance of such duty, whatever may be the latter’s grade in the service.
    Appeal from a judgment, entered on a verdict in favor of defendant, directed by the court, and from an order denying a motion for a new trial.

      Wallace Thayer, for app’lt; A. K. Potter, for resp’t.
   Bradley, J.

The business of the defendant in the operation of its foundry and machine shop at Lockport, N. Y., has for many ‘ years been the manufacture of pumping engines and pumps for waterworks. The plaintiff, employed by the defendant as laborer in the molding- department, was on June 30, 1892, injured by molten iron thrown out of a ladle or bucket suspended from a crane. The charge is that the canse was a defective condition of the apparatus attributable to the negligence of the defendant. The method of conveying melted iron from the furnace to the place of molding the castings was in a large iron ladle, by means of a steam crane or 'derrick. The bail upon which the ladle is hung is attached on two opposite sides to a trunnion a little below the perpendicular center of the ladle, so as to permit it to be turned with very little force. In fact it would not remain upright when suspended, unless held so by means of some appliance. To accomplish this, there is a gear or cogwheel firmly keyed to the ladle, and a Worm attached to the bail with a clamp, held to its place by screws or bolts. The cogs or teeth of the wheel and the-thread of the worm, when in position, interlock. In the proper adjustment of the apparatus is the safety of transporting the melted iron from the furnace to the molds. By means of a lever or crank, the worm, may be turned, and thus the gear wheplis correspondingly moved, turning the ladle. In that manner, as occasion requires, the ladle may be turned and held at any angle, and restored to its upright position. A few days before the day in question the gear wheel was broken, and then anew one was put in its place. To do this, it was also necessary to loosen the clasp that held the worm to its place; and after it was repared the ladle was taken to the cupola of the furnace, filled with 9,000 pounds of molten iron, and when it swung off it was tipped slightly, and the refuse substance on the surface of its contents skimmed off by the workman having it in charge. Then it was observed by him that the thread of the worm did not interlap with the teeth of the cogwheel. The man at the lever was unable to bring them together, and as the consequence the ladle necessarily tipped over, spilling the contents, resulting in a serious permanent injury to the plaintiff. While the plaintiff assumed the ordinary hazards incident to the service in which he entered, the defendant owed the plaintiff the duty that he should not be subjected to perils arising from want of reasonable care in furnishing suitable or safe implements, machinery, and appliances in and pertaining ■ to the business in which he was employed. What is reasonable care in a given case is dependent, more or less, upon circumstances. And the burden is with the party charging it to prove negligence. The mere fact, that he has suffered injury by reason of defective machinery does not raise the presumption of negligence of the employer. Nor is the latter required to furnish the very best known appliances for the service. Nor does the master absolutely undertake for their sufficiency or safety. As has been suggested, he is in that respect required to use reasonable care, which máy be defined as such care as a prudent man, having in view their suitableness and safety, would use in providing the appliances, if he personally were to be exposed to all the perils which might arise from their use in the service for which they were designed. Devlin v. Smith, 89 N. Y. 470. Burke v. Witherbee, 98 id. 562; Stringham v. Hilton, 111 id. 188; 19 St. Rep. 621; Harley v. Manufacturing Co., 142 N. Y. 31; 58 St. Rep. 437. The device of the gear wheel and worm had been in use many years in the defendant’s foundry with success, and without any accident prior to the time in question, and, So far as appears, a similar apparatus is in use in other foundries, where large castings are molded. There was nothing iu the material, method of construction, or operation of it, when properly adjusted, to permit imputation of want of due care on the part of the defendant in the application of it to the purpose for which it was used. The question is whether or not the conclusion is by the evidence permitted that the defendant was chargeable with negligence in not properly restoring the apparatus to a condition of safety for use after the gear wheel was broken. The importance of having the apparatus properly adjusted is apparent for the protection of the employes as well as for the good of the service, when the ladle is swung five or six feet above the ground floor in passing from the furnace to the place of deposit of its contents. This accident occurred the first time the ladle was used after the new wheel was attached to it, and was the result of the first attempt to incline it in suspension by the use of the worm; and the evidence tends to prove that the failure of the apparatus to work properly was caused by the worm rising or slipping upon the bail, and thus taking it out of cog with the wheel, otherwise there could have been no danger apprehended, and that 'this could not have happened, if the bolts of the clasp which held the worm to its place had been" properly screwed up, appears by the evidence. The only way of accounting for the slipping.up of the worm on the bail of the ladle, and thus separating the thread of it from the cogs of the wheel, was in the looseness of those bolts or screws. Yet the testimony of the machinist who did the work and of his assistant is that the bolts were screwed up tight, and the foreman also testified that he saw them screwing up the bolts. If this was well done, as those who did it say it was, then something must have occurred shortly after to weaken the firmness of the attachment of the worm to the bail at its proper place. But the evidence does not warrant the inference that anything was done or happened to the apparatus after its repair was completed and before the accident to loosen the clasp of the worm to the bail. The strain upon the fixture in the operation of the ladle is said to be but slight. And in this instance the only use made of the apparatus, other than to hold the ladle upright in the start, was to tip it slightly for skimming, and thereupon the worm failed to perform the service for which it was intended. This condition of it the jury were permitted to find was not consistent with the evidence of those witnesses that the bolts were screwed up tightly or properly, end, in view of their relation as employes to the defendant at that time, the question whether or not the bolts were so screwed up was one of fact for the jury. Dean v. Van Rostrand, 4 N. E. 134 : Elwood v. Telegraph Co., 45 N. Y. 549 ; Volhnar v. Railway Co., 134 id. 418 ; 47 St. Rep. 631 ; Seybolt v. Railroad Co., 95 N. Y. 562-567. As the duty was with the defendant to furnish aud maintain suitable instrumentalities for the service, and to supply a safe place for its employes to do their work, it is responsible to the plaintiff for his injuries, if they resulted solely from the defendant’s failure to exercise reasonable care in that respect. The reparation and adjustment of the apparatus attached to the ladle for its use came within the duty which the defendant assumed to perform, and the servant who did it, whatever may have been his grade in the general service, represented the defendant, and for the consequences of his negligence in the performance of it the e defendant is responsible. Pantzar v. Manufacturing Co., 99 N. Y. 368 ; Bushby y. Railroad Co., 107 id., 374; 12 St. Rep. 9; Kranz v. Railroad Co., 123 N. Y. 1; 38 St. Rep. 46 ; Hankins, v. Railroad Co., 142 N. Y. 416 ; 59 St. Rep. 802 ; Wannamaker v. City of Rochester, 44 St. Rep. 45 ; Id., 137 N. Y. 529; 50 St. Rep. 930. The view taken of the evidence is that it was such as to permit the jury to find that the plaintiff’s injury was occasioned by the failure of the person, who. sought to adjust the apparatus, to screw up the bolts sufficiently to hold the worm to its place, and, if so, that the failure to do it was attributable to want of reasonable care on his part, for which the defendant was responsible, and that those questions should have been submitted to the jury. The inquiry would also involve the consideration of the question whether a reasonably practical test of the structure was applied to it after the reparation, and before it was put into the service. The circumstances under which the thread of the worm left the cogs of the gear wheel, resulting in the unfortunate event, seem to have been such as to permit the inference that the worm was so loosely clasped to the bail of the ladle that it had substantially nothing other than its own gravity to hold it to its place. The evidence warranted the conclusion that the plaintiff was free from contributory negligence, which was also a question of fact for the jury. The judgment and order should be reversed, and a new trial granted, costs to abide the . event. All concur.