text:
    The Superintendent of the Poor of the County of Cattaraugus, Pl'ff, v. The Superintendent of the Poor of the County of Erie, Def't.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    Poor—Insane wipe—Settlement.
    M. and his wife resided for some years after their marriage in Cattaraugus county, when they removed to Chemung county, but before they had been there a year the wife became insane and was taken to the asylum in Cattaraugus county. The husband then removed to Buffalo, and, in the fall of 1891, procured his wife’s discharge and took her to his home. In February following he took her back to the asylum, the defendant denying any liability of Erie county in the premises. Neither M. nor his wife had ever received any public support or assistance except as stated. Held, that when the wife was removed from the asylum she ceased to be an insane pauper; that the husband acquired a settlement in Erie county, and his settlement became that of his wife, and that an action for her support at the asylum could be maintained against Erie county.
    Submission of a controversy under § 1279 of the Code of Civil Procedure.

      Ni M. Allen, for pl’ff ;

      Allen & Butterfield, for deft.
   Macomber, J.

Under this submission the plaintiff seeks to recover of the defendant the sum of $100, being the amount of expenses which he had incurred in behalf of one Anna Moynahan, an insane pauper.

The facts are as follows: Anna Moynahan was married to

Michael Moynahan at Jamestown, Chautauqua county, in the year 1877. At that time Michael Moynahan resided in the town of Cold Spring, in the county of Cattaraugus, H. Y., and his wife’s residence, prior to her marriage, was at Hamilton, Canada. After their marriage these persons lived at Cold Spring, in the county of Cattaraugus, and continued there until the year 1888, when they removed to Elmira, H. Y., and there remained eleven months. While at Elmira, Anna became insane and she was placed in a public hospital there.

The overseer of the poor of the city of Elmira notified the overseer of the poor of the town of Cold Spring of this fact; whereupon the latter removed Anna to Cattaraugus county and placed her in the insane asylum there on the 12th day of July, 1889, where she remained until the 31st day of October, 1891, when she was discharged from that asylum. During all the time she was maintained at this asylum it was at the expense at the town of Cold Spring, and not at the expense of the county of Cattaraugus. She was committed to the asylum as an insane person, and as a proper person for care and treatment, under the provision of chap. 446 of the Laws of 1874, on the certificate of two physicians, approved by the county judge of Cattaraugus county. In the month of October, 1889, Michael Moynahan removed from the city of Elmira, where he had lived eleven months, to the city of Buffalo, in the county of Erie, where he has continuously ever since resided, “ and is a house-holder and keeps bouse thereat.” At the request of her husband, the wife, Anna, was discharged by the attending physician from the asylum in Cattaraugus county, and the discharge was approved by the county judge; whereupon she left the asylum in company with her husband, and went with the latter to the city of Buffalo, where the husband then resided, and remained with him in that city until the 18th day of February, 1892, when the husband brought her back to the asylum in Cattaraugus county by the advice and direction of the defendant, who denied the liability of Erie county in the premises; and she was left, under the protest of the keeper of the asylum, as a charge upon the county of Cattaraugus, the authorities of Cattaraugus county claiming that her residence and settlement was that of her husband in the county of Erie, and that in no event was the county of Cattaraugus obligated for her support; but that the county of Erie was so obligated by reason of her husband residing in that county. Neither Michael, the husband, nor Anna, the wife, has ever received any support or assistance from city, town or county officers in any way except the support which Anna received while at Machias in the county of Cattaraugus at the insane asylum from the 12th day of July, 1889, to the 31st day of October, 1891.

Under proceedings-provided for by law relating to insane persons improperly removed from one county to the other, the question of liability of the county of Cattaraugus or of the county of Erie in the premises is presented.

Out of the facts agreed upon in this submission, this controlling inference is to be drawn, namely, that when Michael Moynahan removed his wife Anna from Cattaraugus county to Erie county, in October, 1889, she ceased to be an insane pauper within the provision of the statutes. The submission is somewhat obscure and indefinite as to whether Anna Moynahan was discharged as cured from the insane asylum of Cattaraugus county at this time. But there is no fact stated in the submission which would preclude the inference to be drawn, that she was no longer town or county charge when her husband removed her to his residence in the city of Buffalo, in the county of Erie, where the husband had had his domicil, having removed from Chemung county in the month of October, 1889. We think that on the whole, Michael Moynahan, the husband, had a legal settlement in the county of Erie, by reason of his continuous residence there from the month of October, 1889, to the month of August, 1892, and that the settlement of the wife was that of the husband during this time, and certainly from the time of her removal from the county of Cattaraugus to his residence in Erie county, and that Michael Moynahan acquired a settlement in the county of Erie, together with his wife, within the meaning of the statute. 2 Birdseye Statutes, 2259, § 16, subd. 1, provides that a settlement may be gained “ If a female, by being married and living for one year with her husband, in which case the husband’s settlement shall determine that of his wife.” The parties had a settlement within the meaning of the statute at Cold Spring, Cattaraugus county, immediately following their marriage. It is not necessary to inquire in this connection whether a settlement was acquired by them in the county of Chemung or not. The wife went back to Cattaraugus county, and soon thereafter the husband obtained his settlement in the county of Erie.

There is nothing in the submission before us to indicate that the removal by the husband of his wife from the county of Cattaraugus to the county of Erie was for any other purpose than that she should reside with him in the latter county as his wife. The submission is silent as to whether she was supposed to be cured of her insanity at this time. Immediately upon going to the ■county of Erie she did not become a charge upon that county, but lived with her husband, and, for aught that appears, her settlement, following that of her husband, was in the county of Erie when she again became insane and a county charge.

In these circumstances it was illegal for the poor authorities of the county of Erie to require the husband to remove his wife back to the county of Cattaraugus, and that, consequently, this action may be maintained for the recovery of the said sum which, it is agreed, had been expended for the support and maintenance of the insane pauper by the county of Cattaraugus.

It follows that under the submission the plaintiff is entitled to recover the sum of one hundred dollars as the necessary expenses of maintaining the insane pauper since the 18th day of February, 1892, to the time of this submission.

Judgment ordered for the plaintiff on the submission.

Dwight, P. J., and Lewis, J., concur.


source: Caselaw Access Project

author: Dwight, P. J.

license: Public Domain

text:
    Susan Ehlein, Resp't, v. Samuel N. Brayton, Appl't.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    1. Malpractice—Pleading—Amendment.
    In an action to recover damages for alleged malpractice of the defendant as a physician, a new trial having been granted, a motion was granted allowing plaintiff to amend her complaint. The specification of negligence in the original complaint was that defendant, in his treatment of plaintiff’s inflammatory rheumatism,failed to manipulate the knee joint, but permitted it to be kept in one position until it became immovable; the amendment further alleged that when defendant found the joint liable to become immovable he did not place the knee in such position, that, when stiffened, the plaintiff might have borne her weight upon it in walking, but left it m such position that the limb is entirely useless, Held, that the amendment was properly allowed.
    3. Same.
    In such case, amendments to the effect that the defendant was negligent in his diagnosis of the case and in his treatment of the same, and that as said malady progressed it became chronic articular rheumatism or synovitis, should not be allowed.
    3. Same—Laches.
    The objection of loches is always one addressed to the discretion of the court.
    Appeal by defendant from an order of Brie special term, granting leave to plaintiff to amend her complaint.

      Martin Clark, for app’lt;

      Geo. Wing, for resp’t.
   Dwight, P. J.

The action, which was to recover damages for alleged malpractice of the defendant as a physician, had been once tried, and a verdict given for the plaintiff; that verdict had been set aside and a new trial granted on motion of the defendant made on'the judge’s minutes; and that order had been affirmed at general term ; when, pending the new trial, the plaintiff made her motion for and obtained leave to amend her complaint.

The alleged negligence and unskillfulness of the defendant were exhibited in the treatment of the plaintiff for inflammatory rheumatism located in the knee joint, and the result complained of was the permanent anchylosis or stiffening of the knee. The single specification of negligence and unskillfulness of the defendant, made by the original complaint, was that he failed to manipulate the joint, to bend and unbend it, or to require the plaintiff to bend and unbend it, but, on the contrary, that he permitted and required the limb to be kept in one position, without bending or unbending, until it became stiff and immovable.

The amendment of most importance desired by the plaintiff, and allowed by the order appealed from, is one by which there is added to the specification above the further allegation of negligence and unskillfulness, in that when the defendant found that the joint was liable to become stiff and immovable, he did not jilace the limb in such position, with the knee at such an angle, that when stiffened the plaintiff might have borne her weight upon it in -walking; but that, on the contrary, he permitted the joint to become rigid at such an angle that the foot does not reach the floor in walking, and the limb is, therefore, entirely useless.

Other amendments sought to be made are (1) that the defendant was negligent, etc., in his diagnosis of the case; (2) that he was negligent, etc., in his treatment of the case generally; (3) that “ as said malady progressed it became chronic, articular rheumatism or synovitis."’ ■

Aside from any general objections to the motion to amend this complaint, we think that, on their individual merits, no one of the three last described amendments should have been allowed. The first is too indefinite, in that it does not specify what mistake of diagnosis was made, nor how, if at all, the treatment of the case was affected by such mistake, if any. . The second is in terms general, and specifies no fault or defect of treatment. The third merely gives a name to the disease in its advanced stage, and is connected only with a general allegation of fáilure to administer the proper remedies, which specifies neither what remedies were, nor what remedies should have been, administered. It is quite clear, we think, that the amendment should not have been allowed in either of the particulars last considered.

The first proposed amendment, however, is of a different character. It is specific; it does not set up a new cause of action; it is, in effect, an enlargement or extension of the single specification of negligence and unskillfulness contained in the original complaint. There is nothing in the proposed amendment itself to forbid its allowance.

Mor do we think the objections based upon the circumstances under which it is proposed ought to be conclusive against it. The objection that this is a renewal without leave of a motion once made and denied is not tenable. The motion formerly made was for leave to amend on the trial, after the evidence was in, and to make the complaint conform to the evidence. That was a very different motion from this, and might have been, and probably was; denied upon grounds entirely foreign to this application. The objection that the moving affidavit was made by the attorney, and not by the plaintiff, ought not, under the circumstances, to prevail. The facts of the case may, it is true, be presumed to be within the knowledge of the party rather than of the attorney. But in this case it is not so much the facts as the inference of negligence to be drawn from the facts which is the new matter referred to in the affidavit of Mr. Wing. The same answer must be made to the similar objection that a plaintiff will not be allowed to amend his complaint to set up facts of which he had knowledge at the time of commencing the action. The objection of loches is always one addressed to the discretion of the court. And it is not plain that that discretion was abused by the court at special term.

The order granting leave to amend should be modified by limiting the amendment to the last allegation of fact contained in the proposed amended complaint, and, as modified, affirmed.

So ordered, without costs of this appeal to either party.

Maooiibeb and Lewis, JJ., concur.


text:
    Solon S. Laing, President, etc., App'lt, v. Alonzo B. Rush, Impleaded, Resp't.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    New trial—Newly discovered evidence.
    Proposed evidence, to be the ground for a new trial, must be not only newly discovered, per.'inent to the issue and not merely cumulative, but it must also be of such degree of cogency and importance as to give reasonable ground to believe that its production on the new trial will have the effect of producing a different result from that reached on the trial already had.

      Appeal by the plaintiff from an order of the Erie special term, entered in Cattaraugus county on the 30th day of June, 1892, denying his motion for a new trial, on the ground of newly discovered evidence. 1

      jEugene A. Nash, for app’lt;

      W. S. Thrasher, for resp’t
   Dwight, P. J.

The action was on a promissory note of $120 upon which the respondent has been duly charged as indorser. His defense was payment by him, in money, at the counter of the plaintiff’s bank. For so simple an issue the evidence was conflicting upon an unusual number of questions involved. It related to transactions between the parties in connection with at least three notes upon which the defendant was liable, and involved an inquiry into the meaning of several entries in the books of the bank and the pass-book of the defendant, and it was the more confusing, perhaps, by reason of a system of bookkeeping at the bank which was not readily intelligible to persons not expert in that science.

The evidence propounded as ground for this motion was, no doubt, newly discovered and pertinent to the issue tried. It is also apparent from the affidavits read by both parties on the motion, that it has already thrown light on the matters involved, with the effect, at least, of refreshing the recollection of witnesses, on both sides, in respect to transactions which occurred four years before the trial; so that it was clearly not cumulative only.

But proposed evidence, to be ground for a new trial, must be not only newly discovered, pertinent to the issue and not merely cumulative, but it must also be of such degree of cogency and importance as to give reasonable ground to believe that its production on the new trial will have the effect to produce a different result from that reached on the trial already had. It is in this respect that the learned judge, at special term, held that a case was not made for granting the plaintiff's motion. It was the same judge who tried the case at the circuit; he had heard from the mouths of witnesses the evidence already given ; had analyzed and arranged it for presentation to the jury, and had, no doubt, received a more lively impression of the credibility and weight of the testimony of the several witnesses than it is possible to do from the printed record; and he was better able to judge than we are, how far the general force of the evidence, as it stood, would be affected by that proposed to be added on another trial.

But our own examination of the case satisfies us that the proposed new evidence is by no means conclusive against, but is easily reconcilable with either theory of the case; and that, as the trial judge remarks in the memorandum accompanying his decision of the motion, “ it is very clear that the same verdict would be abundantly supported by the evidence ” with the addition proposed.

Such being the case, we are not at liberty to say that the court, at special term, did any violence to the discretion which it was called upon to exercise in denying the motion for a new trial.

The order should be affirmed.

Order appealed from affirmed, with costs.

Macomber and Lewis, JJ., concur.


text:
    David E. Barrows, Resp't, v. Henry Webster, App'lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    1. Ejectment—Description of land in deed.
    In an action of ejectment, it appeared that both parties took their deeds from, the same grantor, and that their property adjoined; that by the description in plaintiff’s deed, the east line of his lot was the west line of Union street, which street is the principal one in the village, and its west line, as laid out in 1834, has continued as such ever since; but a map on file in the county clerk’s office, made in 1836, gives to Union street a width twenty-six feet greater than that of the street actually laid out, and plaintiff contended that the line so indicated is the east line of his lot, which would reduce the width of defendant’s lot. No evidence was given that such map was made for the owners, at the time, of the property delineated therein, or of use or acceptance of such line by the public. Held, that the reference in the plaintiff’s deed to the west line of Union street was to the west line as it had always actually been.
    2. Same—Evidence—Maps.
    In such case deeds, to which neither of the parties thereto was either party or privy, in which reference was made to the map made and filed in 1836, are improperly received in evidence.
    Appeal from a judgment entered in Cattaraugus county, on the report of a referee.

      J. H. Waring, for app’lt;

      J. A. Corbin, for resp’t
   Dwight, P. J.

The action was ejectment for a strip of land, seventy-five feet long and thirteen feet wide lying adjacent to the boundary line between the lots of the two parties in the village of Olean. The controversy is whether it lies on the one side or the other of that line.

Both parties took their deeds from the same grantors, the plaintiff in 1886 and the defendant in 1887. By the description in the plaintiff’s deed the east line of his lot is in the west line of Union street and his lot extends to the west, therefrom, 125 feet, and is seventy-five feet wide. The description in the defendant’s deed makes no reference to the plaintiff’s lot, but evidence aliunde shows that the defendant’s lot adjoins the plaintiff’s on the west and extends thence west to a fixed boundary; and it is described in the deed as fifty feet in width from east to west

Union street is the principal street in the village. It was laid out, opened and fenced, at least in part, on the west side, before 1834, and its west line as then practically located has continued to be its actual and ostensible west line until this time. But there is on file in the clerk’s office of Cattaraugus county a map of a portion of the village of Clean, which purports to have been made in 1836 by one T. J. Grosseline, civil engineer, which gives to Union street a width twenty-six feet greater than that of the street actually laid out, opened and in use at that time and ever since.

This additional width seems to have been disposed in equal parts on the two sides of the street, so that the map indicated a west line for the street thirteen feet further west than the actual west line; and the contention of the plaintiff, which gives rise to the controversy in this action, is that the line so indicated is the east line of his lot. This would carry his west line 138 feet from the actual line of the street and thirteen feet on to the lot conveyed to the defendant by the common grantors; would reduce the width of the defendant’s lot from fifty to thirty-seven feet, and would entitle the plaintiff to the judgment from which this appeal is taken.

But we find no reasonable foundation in the case for such a contention. There is no evidence that Grosseline made the map for the owners, at the time, of the property delineated therein. If it was so made, it established no lines by dedication to the public use until such dedication was accepted by the public, which was never done. Badeau v. Mead, 14 Barb., 329-340; Fonda v. Borst, 2 Keyes, 48; Holdane v. Trustees of Cold Spring, 21 N. Y., 474. The proposed west line of the street laid down on the Grosseline map, therefore, was never the west line of Union street; and there was never any other west line, except the line which bounded on the west the street actually laid out and used for more than fifty years.

There were received in evidence on the trial several deeds, to which neither of the parties hereto was either party or privy, in which reference is made, in various connections, to the Grosseline map. We think the defendant’s objection to the evidence was well taken and should have been sustained; but being in evidence the deeds establish nothing against the defendant nor in favor of the plaintiff. There was no reference in his deed to the Grosseline map, nor is there anything in the case to rebut the presumption that the deed to the plaintiff was made upon actual view of the premises conveyed, and with reference to the lines and monuments then actually and ostensibly present. Van Wyck v. Wright, 18 Wend., 157, 165; Wendell v. The People, 8 id., 183, 190; Raynor v. Timerson, 46 Barb. 518, 524; White's Bank v. Nichols, 64 N. Y., 65, 71.

There can be no doubt, we think, that the reference in the plaintiff’s deed to the west line of Union street, was to the west line of the street as it stood, and had stood, for fifty years; that such actual and ostensible west line was by such reference made a monument, which fixed the east line of the lot granted to the plaintiff, and by consequence determines the location of his west line on the east side of the strip of' land in question.

The judgment should be reversed.

Judgment appealed from reversed and a new trial granted, with costs to abide the event.

Macomber and Lewis, JJ., concur.


text:
    The People ex rel. The Oak Hill Cemetery Association, Resp't, v. Luther A. Pratt et al., Ass'rs, App'lts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    Certiorari—Costs.
    In eertiorarri against assessors to review their official action, the award and taxation of costs is governed by the provisions of chap. 269, Laws of 1880, and costs of appeal, if allowed at all, are to be allowed as on appeals from orders, under § 3239 of the Code, and not as in actions under § 3240.
    Appeal by defendants from an order of Monroe special term, directing a re-taxation of costs.

      G. D. Kiehel, for app’lts;

      Asa W. Russell {J. D. Coffey, of counsel), for resp’ts.
   Dwight, P. J.

The proceeding was by certiorari to review an assessment. It went, by appeal of both parties, from the special term to the general term and thence to the court of appeals. The latter court sustained the appeal of the relator and made a final order in its favor, with costs in the general term and court of appeals. These costs the clerk taxed as on appeals from orders. The special term directed a re-taxation and allowance of costs as in an action, and from that order this appeal is taken.

We think the clerk was right and that the order for a re-taxation was erroneous. Certiorari is, no doubt, a special proceeding, and the award and taxation of costs therein, generally, are governed by § 3240 of the Code of Civil Procedure. But the case of certiorari against assessors, to review their official action, is an exceptional one; and is governed, in respect to the award and taxation of costs, by the provisions of chap. 269 of the Laws of 1880, which is the statute under which the proceeding is taken.

By § 6 of that statute it is provided that costs shall not be allowed against assessors, or other officers, whose proceedings may be reviewed under this act, “unless it shall appear to the court that they acted with gross negligence, in bad faith or with malice.” In the case of the People ex rel. Smith, Jr., v. Asten, 1 St. Rep., 37, the court of appeals held, that this provision, § 6, relieved the assessors from costs only upon the hearing at special term on the return of the certiorari; that an appeal from the determination there made was subsequently provided for by § 7, and directed to be heard and determined in like manner as an appeal from an order; and that the costs of such appeal might be awarded, in the discretion of the court, under § 3239 of the Code of Civil Procedure, which is the section providing for costs on appeal from orders.

Section 7, above referred to, of the act of 1880 provides for an appeal from the determination made under this act, which shall be taken “ as from an order and shall be heard and determined in like manner.” The decision in the ease of Asten above, though announced in a very brief memorandum, is a distinct recognition by the court of appeals of the exceptional character of the special proceeding by certiorari against assessors, which is given by the act cited, and of the rule that the costs of appeals in that proceeding are to be allowed, if at all, as on appeals from orders, under § 3239, and not as in actions under § 3240 of the Code.

In the case of the People ex rel. W. V. R. R. Co. v. Keator, 101 N. Y., 612, the same court, referring to the provision of § 7 above, to the effect that all appeals in this proceeding shall be heard and determined as appeals from orders, says “ we do not think that this is merely permissive, and that an appellant has the option to appeal either under the Code or the section named. The provision is a part óf the whole scheme, and was intended to provide the precise way in which an order, judgment or determination under that act could be reviewed." The language “ order, judgment or determination ” here used is quoted from the statute, but the court of appeals insists that such final determination is an order and not a judgment. In The People ex rel. W. U.Tel. v. Dolan, 126 N. Y., 166, 179; 37 St. Rep., 28, referring to the final determination appealed from, the court says: “ The counsel calls it a judgment of the general term ; it is in truth an order, and has been so held to be by usciting the case of Keaior, above.

We think we follow the plain indication of these cases, when we hold that the proceeding by certiorari against assessors, given by chapter 269 of the Law's of 1880, is peculiar and exceptional among special proceedings; that it is governed in all respects by the act by which it is provided; that appeals therein are to be had and treated in all respects as appeals from orders, and that costs on such appeals, when allowed in the discretion of the court, are to be taxed as motion costs and not as the costs of an appeal from a judgment.

The prder of the special term should. be reversed and the taxation by the clerk confirmed, with costs.

Macomber and Lewis, JJ., concur.


text:
    John D. Chamberlain, Resp't, v. Joseph Dumville et al., App'lts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    Motions and orders—Renewal or motion.
    It is contrary to the practice for one judge to entertain a motion once already made and denied by another judge, unless leave to renew has been obtained from the same judge, if practicable, by whom the motion was formerly denied.
    Appeal by the defendants from an order made and entered at the Niagara circuit granting a compulsory reference.

      J. E. & C. W. Pound, for app’lts;

      Sullivan, Morris & Jerome (B. Crowley and A. E. Gardner, of counsel), for resp’t
   Dwight, P. J.

This order should be reversed, if for no other reason, because it was made by one judge at the circuit after it had been denied by another judge at special term, and without leave obtained to renew the motion.

This objection might possibly be obviated if the case had been, as stated in the printed points of counsel, one where the judge at the circuit had ordered the reference on his own motion, on discovering in the course of the trial sufficient ground therefor. But such was not the case, as is shown by the terms of the order itself.

It was an order made on the application of the defendants, opposed by the plaintiff. By the former order the same application of the same parties, and similarly opposed, was denied at a court held by another justice.

It is not seemly, and it is contrary to the practice, for one judge to entertain a motion once already made and denied by another judge, unless leave to renew has been obtained from the same judge, if practicable, by whom the motion was formerly denied. Klump v. Gardner, 9 St. Rep., 355; Worman v. Frankish, 32 id., 235; Talcott v. Burnstine, 13 id., 552.

The order should be reversed, with costs.

Macomber and Lewis, JJ., concur.


author: Lewis, J.

text:
    Robert Gale, App'lt, v. The Mutual Aid & Accident Association, Resp't.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    Insurance (accident)—Visible signs of injury.
    In an action upon an accident policy to recover indemnity for disability arising from injuries sustained by plaintiff, it appeared that the policy contained a provision that benefits should not extend to any injury of which there should be no external or visible signs, and the physicians who had examined plaintiff all testified that he was severely injured in his diaphragm and recti muscles, but that there was no objective evidence of the same visible to the eye upon his person, but it could be ascertained by manipulating the muscles, and the trial court granted a nonsuit. Reid, that the provision should have a reasonable and practical construction; the evidence of injury must be external, objective, but not necessarily visible to the eye; if it can be ascertained by applying the hand upon the body, it is sufficient.
    Appeal from a judgment of the Monroe county court dismissing the complaint, and from an order denying a motion for a new trial upon the minutes.

      Martin W. Cooke, for app’lt;

      Henry M. Hill, for resp’t.
   Lewis, J.

The action was brought upon an accident policy issued to the plaintiff by the defendant, to recover indemnity for disability arising from injuries claimed to have been sustained by the plaintiff while engaged in lifting.

The certificate of membership contained a provision that benefits under the certificate should not extend to disability caused by disease or to any injury of which there should be no external or visible signs.

It was, therefore, incumbent upon the plaintiff to show, in order to maintain his action, that there was.upon his body an external and visible mark or sign of the injury he claimed to have sustained. The trial court held that he had failed to make such proof, and hence granted a non-suit. The plaintiff contends that there was evidence on that point which should have been submitted to the jury.

The plaintiff was engaged with an assistant at the time he claimed to have sustained his injuries in lifting a heav}7 iron fire pot to a furnace on to an elevator. The assistant’s hands slipped off from the fire pot and allowed the whole weight of the iron to rest upon the plaintiff, which, as he claimed, strained his diaphragm and recti muscles. He was thereby, as he alleged, so disabled that he was confined to his house unable to work for a long time. The recti muscles lie along each side of the median line of the abdomen, just under the skin, and in close proximity to the diaphragm. The plaintiff was, after receiving his injuries, examined by a number of .physicians who were called as witnesses, and who testified that they examined the plaintiff and found him in great distress, having difficulty in taking a long breath, that the filling of his lungs seemed to draw upon the recti muscles and apparently caused the patient to suffer pain in the locality of these muscles. They testified that there was no objective evidence visible to the eye upon the plaintiff's person showing that these muscles had been injured; but that they ascertained, by manipulating the muscles, that they were rigid and tense, and that, such a condition of the muscles was evidence that they were painful; that pressure upon them caused the patient to suffer pain, which was evidence, to their minds, that they had received an injury.

Their testimony tended to show that the muscles were so located near the exterior of the body that they could be readily and easily felt with the hand. They testified that while a person could voluntarily make these muscles rigid as the plaintiff’s appeared to be when they examined him, that they applied well known tests, which they described, to ascertain if the plaintiff was, in fact, feigning, and that they learned by such tests that he was not voluntarily making his muscles tense. They testified that they were fully satisfied that the plaintiff had sustained an injury to these muscles, and they believed that was the cause of his disability. There was an entire absence of any fever, which was evidence to their minds there was no inflammation, and that the patient was not suffering from any disease like pleurisy or rheumatism, but in their opinion his condition was caused by a strain. The surgeons testified that they were aided in locating the injuries by information derived from the plaintiff.

Dr. Briggs testified: “ It is my opinion that Mi1. Gale, when I visited him, was suffering from a muscular strain of the diaphragm and recti muscles. If nothing had been said by Mr. Gale about over-lifting, from the symptoms I obtained, I should have supposed his case was a strain. If it were not for the information I got from him, I would have been puzzled to know what it was. In other words, without the explanation he gave me, I would have found it hard to tell what it was. * * * And every physician would be at sea every day, were he debarred from receiving the statement of his patient, and so he would be in a case like this.”

Dr. Briggs evidently meant to be understood by this evidence that he would have had difficulty in locating the precise muscla that had been injured if he had not been aided by the statements of the patient, but having ascertained the location of the pain by the statement of the patient, he testified that he was convinced, that the muscle had been injured, by manipulating it

Dr. Dann, a physician of twenty-six years practice, was called as a witness, and testified: “ I manipulated those muscles, and examined them with my fingers. I discovered this injury from such examination. Such an injury would be likely to produce just what we found present in this case. In all my examinations, I never discovered any other malady or injury from which this man was suffering, except what I have stated. I should say he was suffering from a strain of the muscle.”

“ There was nothing further on the person of this man to indicate injury than that when the hand was placed on the abdomen any pressure caused the muscles to be tense.” He testified that he could feel the rigidity of the muscle with his fingers, and that the rigid state of the muscle indicated, to his mind, that it had received an injury.

The condition of the policy as to external evidence of an injury was inserted to protect the insurer against fraudulent claims. It is a reasonable and a proper provision, but it should have a reasonable and practical construction. The evidence of the injury must be external, objective, but it must not necessarily be visible to the eye. If it can be ascertained by applying the hand upon the exterior of the body, such a test affords equal protection to the 'assured against fraudulent claims based upon simulated injuries as evidence that can be seen with the eye. Information derived through the sense of feeling may be quite as satisfactory and convincing as that derived by sight.

The word “ visible” is defined by Webster to mean “ noticeable, apparent, open, conspicuous.” In the Century Dictionary as “ apparent, open, conspicuous: as a man with no visible means of support, discernible in sight, obvious, manifest, clear, distinct, plain, patent, unmistakable."

An object that is noticeable, apparent to the touch, may be said to be visible.

The surgeons testified that a fracture of a rib would not be visible to the eye, but could be easily ascertained by the use of the hand.

An examination of the evidence has satisfied our minds that there was sufficient evidence tending to show external and visible indications on the body of the assured of the injuries which he claimed to have sustained so that a case was made which should have been submitted to the jury.

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

Dwight," P. J., and Macomber, J., concur.


text:
    Irving Payne, Resp't, v. Abram T. Kerr et al., App'lts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    Conversion—Levy of execution—Evidence.
    D , plaintiff’s assignor, was in possession of certain goods under a chattel mortgage, when defendants obtained a judgment against the mortgagor, issued execution, levied on the goods and sold them. The defendants’ at* torney, one C., personally directed the levy and sale. On the trial of an action for the conversion of the mortgaged property, 0. was called as a witness and testified that he saw D. on the day of the recovery of the judgment and had a conversation with him; he was then asked to relate the conversation, plaintiff objected on the ground that it was incompetent under § 839 of the Code, the witness being interested in the result of the action, and further because the declarations of D. were incompetent as against the plaintiff. Defendants, therefore, offered to show by 0. that D. agreed with the witness to permit the levy and sale, which offer was excluded. Held, that the exclusion of O.’s evidence was error necessitating a reversal of the judgment and a new trial.
    Appeal from a judgment entered in Allegany county on the report of a referee.

      William F. Mackey, for app’lts;

      De Merville Page, for resp’t.
   Lewis, J.

Edward P. Carr was the owner of a stock of goods in the village of Almond, Allegany county, on the 13th day of February, 1886, and on that day executed and delivered to Dr. Zacharias Dildine a chattel mortgage thereon to secure the payment of a debt of about $1,500, which he then owed to the doctor. On the 19th day of April, 1886, Dr. Dildine was in possession of the stock of goods under his chattel mortgage, and on that day the defendants recovered a judgment for the sum of $697.34 against the mortgagor, Carr. They caused an execution to be issued upon the judgment to the sheriff of Allegany county, and he on that day levied upon the stock of goods under the execution, and thereafter advertised and sold the goods by virtue thereof. The defendants’ attorney, Mr. John C. Collins, personally directed the levy and sale. After the sale of the goods had taken place, and on the 6th day of January, 1887, the mortgagee, Dr. Dildine, sold and assigned to the plaintiff the said chattel mortgage, and the principal debt for the payment of which the mortgage was given as security, and also all claims, actions and causes of action against any and all persons by reason of said mortgage. The plaintiff thereupon brought this action against the defendants for the conversion of the mortgaged property. The action was duly referred and tried, and the plaintiff recovered a judgment against the defendants for the amount due and unpaid on the mortgage, and the defendants appealed from the judgment.

A new trial must be granted, because of errors of the referee in the rejection of evidence.

The defendants called their attorney, John C. Collins, as a witness. He testified that he was the attorney of record for the defendants in their action against the mortgagor, Carr; that he saw Dildine at Almond on April 19, 1886, the day of the recoveryof the judgment against Carr; that he there had a conversation with Dildine before the entry of the judgment against Carr. He was then asked to relate the conversation.

Plaintiff objected on the ground that it was incompetent and irrelevant ; “ it appearing that the witness is personally liable for the amount of the goods mentioned in the complaint, and that & result in the defendants’ favor could be used as a bar by him in any action brought by plaintiff against him. He is interested in the result of the action, and is incompetent to testify to any transaction or conversation with Dildine, under § 829 of the Code of Civil Procedure ; and for the further reason that the declarations of Dildine are incompetent as against the plaintiff, a purchaser for value.”

The objection was sustained, and the defendants duly excepted.

The defendants thereupon offered to prove by the witness, that, on the 19th day of April, 1886, the plaintiff’s" assignor, Dildine, agreed with the witness to permit an execution on the defendants’ judgment against Carr, the mortgagor, to be levied by the sheriff of Allegany county upon the stock of goods and fixtures then in the store of Carr, at Almond, and that a sale would be had under such execution, and the execution satisfied out of such goods, and that Dildine would not claim any prior lien upon such goods by reason of his chattel mortgage thereon; and that an agreement was then and there made between Dildine and Collins, as attorney for defendants here, that defendants’ judgment against Carr and Dildine’s mortgage should be satisfied out of the goods and fixtures then in Carr’s store.

The offer was excluded, and defendants excepted.

The defendants thereupon offered to show by the witness that, at the time the agreement was made, other creditors of Carr were endeavoring to obtain possession of the stock of goods, and that Dildine said to the witness that he wanted to have defendants’ claim paid, and that he was willing it should be paid, as the claim was the largest of any of the creditors, and he’ would have less difficulty in securing his own claim, under such an arrangement with the defendants, than with the other creditors; and that in pursuance of such an agreement the witness, as attorney for defendants, issued the execution upon the defendants’ judgment against Carr, and placed it in the hands of the sheriff, to be executed out of the property and fixtures in Carr’s store.

The offer was excluded.

The defendants further offered to show by the witness that, after the levy was made, the witness saw Dildine and talked with him about the levy, and Dildine told him of the circumstances under which the levy was made, and that he had turned over the property to the sheriff according to the agreement made by him, and that he Was satisfied to have the agreement carried out.

This was also excluded under the objection of the plaintiff.

These facts were unquestionably material. If true, the defendants did not wrongfully convert the goods, and were not liable in damages to either Dildine or the plaintiff for having levied upon and sold them. The offers were not to prove mere declarations of Dildine, but they were to prove that Dildine proposed and consented that the levy should be made and the goods sold under defendants’ execution, and negatived any claim that there was a conversion of the goods by the defendants.

Collins was neither a party to the action, nor was he interested in its result. The action was against his clients for converting the goods, but he had no pecuniary interest in the result of the action. If his cliénts were defeated he had nothing to pay. The judgment would in no way bind him. It could not be used as evidence for or against him in any subsequent litigation. It would not in any manner determine his liability should an action subsequently be brought against him by the plaintiff because of any part which he had taken in directing the levy and sale of the goods. In case of a recovery of a judgment against his clients and the payment of the judgment, it might operate as a payment in full or pro tanto of the debt, and in that way might benefit him in a subsequent litigation against him. His interest, however, in any event, was too remote, uncertain and contingent to disqualify him as a witness under § 829 of the Code.

It is stated in 1 Greenleaf on Evidence, § 390, that “ the true test of the interest of a witness is, that he will either gain or lose by the direct legal operation and effect of the judgment, or that the record will be legal evidence for or against him in some other action. It must be a present, certain and vested interest, and not an interest uncertain, remote or contingent.”

This rule was adopted and approved by the court of appeals in Hobart v. Hobart, 62 N. Y., 83; and in Nearpass v. Gilman, 104 N. Y., 506; 5 St. Rep., 745; Wallace v. Straus, 113 N. Y., 242; 22 St. Rep., 984.

These cases are authority for the claim of the appellants that the exclusion of this evidence was error. The facts which it was proposed to prove by the witness, Collins, were material to the issue that was being tried ; they went direct to the gist of the plaintiff’s cause of action.

Because of the error in excluding this evidence, the judgment must be reversed and a new trial granted, with costs to abide the event.

Dwight, P. J., and Macomber, J., concur.


text:
    Henry R. East, App'lt, v. The Cayuga Lake Ice Line, Resp't.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    Contract—Breach.
    Defendant offered by letter to furnish plaintiff all the ice he needed in his business, not to exceed a certain amount, for a year at a certain price, which offer was accepted, and the ice furnished. At the expiration of the year defendant offered to furnish plaintiff ice for another year on the same terms, which offer was accepted. In the summer of this year defendant asked plaintiff if he would not pay more than the agreed price, and plaintiff refusing, he shortly after stopped delivery. Plaintiff requiring ice in his business was obliged to purchase of other dealers at an increased price. Held, that it was error to non-suit the plaintiff on the ground that lie had failed to pro^e a valid contract.
    Appeal from a" judgment of nonsuit granted at a trial term of the Monroe county court, and from an order denying a motion made upon the minutes for a new trial.

      H. B. Halloclc, for app’lt;

      W W. Webb, for resp’t.
   Lewis, J.

This action was originally brought in the municipal court of the city of Eochester and judgment was rendered for the plaintiff. An appeal was taken from the judgment to the county court of Monroe county for a new trial, and at the close of the plaintiff’s evidence a nonsuit was granted. A motion was thereupon made upon the minutes for a new trial, -which was denied and judgment entered for the defendant, and an appeal was taken from said judgment and order.

The plaintiff was a dealer in meats and provisions in the city of Eochester and required and used in his business large quantities of ice. The defendant is a domestic corporation engaged in the business of dealing in ice in the city of Eochester, and furnished to the plaintiff the ice required for his business during the ice season of the year 1888, under a contract between the parties made as follows: In the spring of the year 1888 the plaintiff and F. W. Hawley, general manager of the defendant, had a conversation in regard to the defendant’s furnishing the plaintiff with the ice he should require for his business for that season, and so m thereafter the defendant sent to the plaintiff a letter of which the following is a copy:

“Eochester, N. Y., March 1, 1888.

Henry R. Hast, Rochester, N. Y.:

“ Dear Sir—Eeferring to 'our conversation of to-day, I beg to say that from this date until we cease loading ice at Cayuga Lake for the season, we will deliver all you require, free of all charges, on any side track in Eochester used by the New York Central for unloading bulk freight, at fifty cents per ton. At the expiration of that time will furnish you ice now in store on the upper Genesee river, free of all charges at our ice station at the corner of Scio street and the N. Y. C. & H. E. E. E., at one dollar per ton. This price applies to not to exceed five hundred tons of ice. Ice will be furnished from the upper Genesee to you in car-loads on any side track used by the New York Central for unloading bulk freight at the same price.

“ Yours respectfully,

“F. W. Hawley,

General Manager.”

The plaintiff accepted the proposition made to him by this letter, and the defendant furnished the plaintiff with all the ice he required in his business for that season, amounting to about four hundred tons, at the prices named. The parties met again in the month of November, 1888, and Mr. Hawley said: “Mr. East, I don’t want you to make any contract for your ice next season ; I want to furnish you the same as I have this season,” and Mr. East replied, “ All right, Mr. Hawley.” Plaintiff testified : “ I saw Mr. Hawley again, think it was in February, 1889; I called on Mr. Hawley and asked him if that was going to be all right for next season, the same price as last that we had talked on, and he said 1 That is all right,’ and 1 said, ‘All right, Mr. Hawley.’ ” Upon his cross-examination, he testified: “ When I met him in the office, I asked him if it would be all right for ice for this season the same as last, the same price, and he said 1Yes, that is all right,” and I said ‘ All right, Mr. Hawley.’ ” The defendant front that time on until the fore part of August following furnished to the plaintiff the ice required in his business, and plaintiff paid the defendant in monthly payments therefor the price agreed upon.

In the month of May, 1889, Mr. Hawley called upon Mr. East, and the following conversation was had. Mr. Hawley said: “ Mr. East, can't you pay me a little more for the ice than you were paying me?” Mr. East replied: “Ho, I wouldn’t think that would be right; it wouldn’t be business for you to ask me to pay more than what we had agreed on, that I was perfectly willing to do what I had agreed to. I did not think it would be right to do anything different,” and Mr. Hawley replied, “all right, you shall have your ice, but you are getting it cheaper than ■any other man in town."

The defendant stopped delivering ice to the plaintiff on the 7th of August, and, although requested so to do, refused thereafter to furnish any more ice to the plaintiff. The plaintiff, requiring ice in his business for the balance of that season, purchased it of other dealers, and was compelled to and did pay therefor $178 more than the same quantity would have cost at the price fixed in the contract with the defendant.

At the close of the plaintiff’s case he was non-suited on the ground that he had failed to prove a valid contract.

We are not able to see in what respect the plaintiff failed to make a case. The respondent’s counsel suggests that the contract was without consideration and, therefore, void. There wras on the part of the defendant an offer to sell and deliver to the plaintiff all the ice he should require in his business for the season at a price stated. The plaintiff agreed to receive the ice, and, although there was nothing said as to payment, there was a clear implication of a promise on his part to pay for the ice the price mentioned. This was followed by a delivery of ice for a portion of the season and payment for the amount delivered at the agreed price. The offer on the part of the defendant and the acceptance thereof by the plaintiff, followed by the delivery of the ice, made, we think, a binding contract.

The respondent further contends that the contract was void for the reason that there was no agreement on plaintiff’s part to take any specified amount of ice. We do not so interpret the contract. It is clear from the language used in the light of the surrounding circumstances, that it was understood by the parlies that the company was to furnish all the ice the plaintiff required in his business for the season of 1889, and the plaintiff agreed to receive the ice and pay for it. It was not optional with the plaintiff to order of the defendant a part of the ice which he required 'and then purchase of other dealers the balance needed in his business. He was to take of the defendant what he required in his business, not a part, but all. The plaintiff testified that the exact amount of ice was not mentioned or agreed upon, for the obvious reason that he did not know how much he would require. The amount would depend, upon the condition of the weather. If it should be very warm, he would need more than he would if the weather was cool; but, in any event, he would need ice. That was understood and was not left in doubt. While the exact duration of the season was uncertain, that there would be a season during which plaintiff would require ice was not problematical. Ice seasons vary in duration. The season of 1888 lasted from March until the following January, the season of 1889 was from March to the latter part of December. Before the close of the season, defendant refused to perform its contract and damage ensued to the plaintiff, and there would seem to be no reason why the defendant is not liable to the plaintiff for the damages sustained by the defendant’s breach of contract.

The facts in the case of Wells v. Alexandre, 130 N. Y., 642; 41 St. Rep., 334, are quite like the facts in the case at bar; there the plaintiff proposed in writing to furnish the defendants’ steamers, which were making regular trips during the year between certain ports, with coal at a price named for the year 1888. Quantity not being specified. The proposal was accepted. Coal was delivered as needed until June 25, when the defendant sold and ceased to operate their steamers, and declined to receive coal thereafter. The purchaser continued to make regular trips with the steamers as before. In an action to recover damages for breach of the contract, it was held that the plaintiff was entitled to recover. In that case the quantity of coal to be furnished was not specified, but the amount was all that should be required to operate the steamers during that year. Here the amount of ice to be delivered was all that the plaintiff required in his business during the season. The sale of the steamers by the defendant was held not to have relieved them from the performance of the contract upon their part.

The cases of Chicago & Great Eastern R. R. Co. v. Dane, 43 N. Y., 240, and Hurd v. Gill, 45 id., 341, referred to by the respondent’s counsel, are distinguishable from the case at bar in the fact that in the first case, whether any freight was furnished for transportation to the plaintiff was left wholly optional with the defendant, and in the other case it was optional with him whether he would take any sand. Hot so here. Under the terms of this contract the plaintiff was obligated to take of the defendant all the ice his business required for the season, and pay therefor the stipulated price.

The respondent contends that the contract was void for the reason that by its terms it was not to be performed within one year from the making thereof. While the parties had a conversation in reference to the contract in the fall of 1888, the contract was made, we think, in February, 1889, and it was to furnish ice for the following season, which the evidence shows would end by the 1st of January, 1890, so that the contract was to be performed within a year.

It was error, we think, to take the case from the jury, and the judgment and order appealed from should be reversed, and a new trial granted, with costs to abide the event.

Dwight, P. J., and Macomber, J., concur.


text:
    The Cincinnati National Bank, Resp't, v. Myron H. Tilden, Jr., et al., Impl'd, App'lts and Resp'ts. Thomas Brown, Adm'r, App'lt, v. Myron H. Tilden, Jr., et al, Impl'd, Resp'ts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    ¡Foreclosure—Deficiency—Rentals in hands of receiver under foreclosure OF JUNIOR MORTGAGE.
    A foreclosure of a second mortgage on a farm was commenced, the holder of the first mortgage being made a party; a receiver was appointed, the order appointing him being in its terms general, and not for the benefit of any particular party. The action was delayed by appeals and a foreclosure of the first morlgage begun, judgment entered, the farm was sold, and a deficiency left, and a motion made for an order directing the receiver to pay the amount in his hands, received from the rental of the farm, to apply on the deficiency. Held, that the motion should be granted.
    Appeal from an order entered in the Niagara county clerk’s office July 25, 1892, denying a motion made in behalf of Thomas Brown, as administrator, etc., a defendant in the first and the plaintiff in the second above entitled actions, to require the receiver of the mortgaged premises to pay over to him the rent moneys in his hands.

      McNaughton & Taylor (Joseph W. Taylor, of cousel), for Thomas Brown, app’lt;

      E. M. Ashley, for Cincinnati National Bank, resp’t;

      John E. & Cuthberi W. Pound, for Caleb C. McKee, resp’t;

      Joshua Gashill, for Patterson A. Reece, resp’t;

      Taylor & Tice, for Daniel C. Carroll, guardian ad litem, resp’t.
   Lewis, J.

Thomas Brown, as administrator, and the Cincinnati National Bank, each held a mortgage upon a farm in the county of Niagara, given by one Myron H. Tilden. Brown’s mortgage was given to secure the payment of the sum of $5,500, and was the senior mortgage. The mortgage to the Cincinnati National Bank was given to secure the payment of certain promissory notes, amounting to about $7,000. An action was commenced by the bank in the supreme court in the month of February, 1889, for the foreclosure of its mortgage. Thomas Brown, as such administrator, was made one of the parties defendant. The plaintiff’s complaint asked that the amount due and unpaid upon 'the Brown mortgage might be ascertained and paid out of the proceeds of the sale under the bank’s foreclosure, or allowed to remain as a lien on the property in the hands of the purchaser. Patterson A. Reece was made a defendant in said action as a subsequent lienor. Reece interposed an answer in which he claimed that his judgment was a lien upon the mortgaged premises prior to the plaintiff’s mortgage. Brown appeared in said action by his attorneys, McNaughton & Taylor, but served no answer. In the month of June, 1889, a motion was made by the attorneys for the bank for the appointment of a receiver of the rents, issues and profits of the mortgaged premises, and an order was made, the material parts of which are as follows:

“ Upon the pleadings in this action, and upon the affidavit of Frank M. Ashley, * * * and upon the waiver of notice of this motion by the attorneys who have appeared herein, it is ordered that John E. Pound, Esq., of the city of Lockport, be and he is hereby appointed receiver of all the rents, issues and profits of the mortgaged premises described in the complaint in this action. * * *

“ And it is further ordered that the said receiver be empowered to collect and receive the said rents, issues and profits, and to take and hold the same during the pendency of this action, and subject to the further order of this court.”

The action of the bank came on for trial, and an interlocutory judgment therein was entered on the 1st day of July, 1890, which adjudged that the bank mortgage was superior to the lien of Patterson’s judgment and that the mortgage held by the defendant, Brown, as administrator, was a prior lien to the bank mortgage, and was entitled to be paid out of the proceeds of the sale of said mortgaged premises, or allowed to remain as a lien upon the property in the hands of the purchaser. Said interlocutory judgment directed the sale of some stock held by the plaintiff as collateral to its mortgage, and directed that after the sale of said stock, and the application of the proceeds of the sale upon the plaintiff’s claim, that a final judgment and decree of foreclosure and sale should be awarded to the plaintiff.

Soon after the commencement of the action Brown’s attorneys informed the plaintiff’s attorneys by letter that the interest on Brown’s mortgage was far in arrears, and that Brown would be obliged to commence a foreclosure of his mortgage unless the-interest be paid at an early day; that Mr. Brown had no desire to make a bill of costs if the bank cared to take up the mortgage or pay the interest as it came due. This letter was written a few days subsequent to the appointment of the receiver.

In the month of August following a letter was received by Brown’s attorneys from the Messrs. Ashley, plaintiff’s attorneys, which stated:

“ Our client does not seem inclined to advance the interest due on the Brown mortgage just at present, for the reason that should the bank be beaten upon the trial it could in no way recover the interest paid, as the Eeece judgment would entirely cut off the bank mortgage. Mr. J. E. Pound of this city has been appointed receiver in this action, and we have no doubt there will soon be in his hands sufficient proceeds from the farm with which to pay the accrued interest on Mr. Brown’s mortgage, and we think we can get an order, with the consent of the attorney who represents Mr. Eeece, to have the money so received paid to Mr. Brown as interest.”

Again, on July 12, 1890, the Messrs. Ashley wrote to the attorneys of Mr. Brown, stating, among other things:

“As you are aware, we have had a receiver of the farm appointed pending the litigation, and he has some money now in his hands. We have rented the farm the present year for a cash rental of $450, which is to be paid to the receiver the present season. We have asked in our pleadings that the" amount of your mortgage be determined and paid out of the proceeds of the same, but if the holder of that mortgage would prefer, we will make an application now to permit the receiver to pay the interest upon this first mortgage as far as the money in his hands will go now, and from time to time thereafter until such interest is discharged. Any net proceeds in the hands of the receiver would necessarily be first applied to, and it will be as satisfactory to us to have the money paid upon the interest, as to have it remain in the hands of the receiver. We should have taken this course some time since, but we tried the case in November last and expected an early decision, and did not expect this threatened appeal. The talk of appeal may not result in anything, but we will make this motion, if your clients desire, immediatel y upon such appeal being taken. If it is not taken, we can speedily procure a sale of the property.”

In reply to this letter, Brown’s attorneys wrote the Messrs. Ashley, under date of July 14, 1890: /

“We have yours of the 12th inst. Since receiving it, we have seen Mr. Thomas Brown, who, as administrator, holds the mortgage given by Tilden to Robert Brown. Mr. Brown' advises us that he arranged with you that if an appeal was taken in your action, then his mortgage should be foreclosed at once; and if the appeal is not taken, then he is to wait until the sale in your action. Mr. Brown also understands that the receiver has now only a very insignificant sum in his hands, and thinks that the arrangement with you should be fully carried out. If the sale in your action is to be unduly deferred on account of the collateral security mentioned by you, then, we think, our mortgage should be foreclosed without further delay."

No answer being received to this letter, and it coming to the knowledge of Mr. Brown that an appeal had been taken by Reece, an action was commenced in the mouth of September, 1890, for the foreclosure of the Brown mortgage. The Cincinnati National Bank, Mr. Reece and the receiver were, with others, joined as defendants. The receiver interposed an answer setting up, among other things, his appointment as receiver, and that he had leased the premises covered by the mortgage; upon the motion of counsel for the plaintiff the receiver’s answer was stricken out as frivolous. The Cincinnati National Bank interposed an answer and pleaded in bar of the action of Mr. Brown the pendency of the action of the Cincinnati Bank against Brown and others. A motion was made by Brown’s attorneys to strike out this answer as frivolous. The motion was denied. Shortly thereafter, and on February 28, 1891, a letter was received by the attorneys for Mr. Brown from the Messrs. Ashley, stating:

“ On consultation with our client, the Cincinnati National Bank, we are inclined to believe that a better price will be obtained for the Tilden farm if it is sold this spring, and as we are in a degree tied up by the appeal of Reece and the peculiar conditions of the interlocutory judgment in respect to the sale of the Switch & Signal stock in Pittsburgh, I can see no better way to solve the problem than to withdraw the answer of the bank to your suit in foreclosure; and if some arrangement can be made by which we can be assured of the expense being kept as low as is possible we will withdraw this answer and let you proceed to an immediate sale.”

This letter was followed by an arrangement by which the answer was withdrawn. Judgment of foreclosure and sale in the action was entered, and the sale of the premises took place. The premises brought upon the sale the sum of $5,000, leaving a deficiency of $2,005.97. Thereupon a motion was made in behalf of Mr. Brown, as administrator, for an order directing the receiver to pay to him, to apply upon his mortgage, the sum of $789.24; the amount in the receiver’s hands over and above his expenses, disbursements and commissions. The motion was denied ; and from the order denying the motion this appeal was taken.

This motion was made in both the bank and the Brown actions, while the receiver was appointed in the bank action, and upon the application of the counsel for the bank. He was appointed not especially for the benefit of the holder of the bank mortgage. His appointment was general, for the benefit of any party whom it should subsequently appear was entitled to the funds. The court evidently concluded, on granting the motion, that the funds should not be received and held exclusively for the bank’s benefit, but that they should be received and applied as equity should demand in the light of facts which might be thereafter disclosed during the litigation. It appeared in the affidavits read in opposition to the motion, that the propositions made by the attorneys for the bank to apply the rents in the hands of the receiver upon the Brown mortgage were made with the view, on their part, to prevent the making of costs by the commencement of an action to foreclose the Brown mortgage. It is the contention of the respondents’ counsel that by commencing his action Brown forfeited any equitable claim he may have had upon the rents.

The commencement of Brown’s action was delayed for a year and a half after the commencement of the bank action. The sequel shows that the bank suffered no injury by the foreclosure of Brown’s mortgage. The propriety of commencing that action was conceded bv the attorneys for the bank, for after interposing an answer they withdrew it for the purpose of facilitating the entry of judgment and sale of the premises under the Brown foreclosure.

The sale of the premises was what both parties desired. Brown remained a party to the bank action all the time. It is true it was not necessary to further prosecute the prior action to obtain a sale of the owner’s equity in the property mortgaged, for that had been disposed of by the sale under the Brown foreclosure. We find nothing in the record tending to show bad faith in the commencement or prosecution of the Brown foreclosure. The special term, as appears from the opinion in the record, put its decision of the motion upon the ground that the order appointing the receiver was made at the request of the bank, and for its protection, and that as the receivership was not extended for the benefit of the Brown mortgage, the holder of that mortgage had no claim upon the rents.

■ It appears to us that the special term court overlooked the fact that Brown was a party to that action, and that the order appointing the receiver was, in its terms, general, and not for the benefit of any particular party.

The authorities referred to by the trial justice, and those referred to in the brief of the counsel for the respondent to sustain the order, are cases where either the order appointing the receiver directed that the money should be applied in a specified manner, or were orders made in cases where the party claiming the fund was not a party to the action in which the receiver was appointed. As Mr. Bi-own, down to the time he commenced the action to foreclose his mortgage, was equitably entitled to the rents, and he having remained a party to the bank’s action .until the time of the granting of the order appealed from, and the bank’s interests under its mortgage not having been in any manner injuriously affected by the commencement and prosecution of the Brown action, we are not able to discover any reason for holding that Brown forfeited his right to the rent money by the commencement of his action. We think that, under the circumstances of this case, the receiver having been appointed for the benefit of all parties, the fund should be distributed according to priority of liens, and upon principle and authority Brown is entitled to this fund to be applied on his mortgage. The following authorities sustain our conclusion: Miltenberger v. Logansport Railway Company, 106 U. S., 307; Keogh v. McManus, 34 Hun, 521; Williamson v. Gerlach, 41 Ohio St., 682; Beach on Receivers, § 554.

The order appealed from should be reversed and an order entered directing the receiver to pay to the counsel for the respondent for their services in procuring the appointment of a receiver, the sum of fifty dollars, and to pay the balance of the fund in his hands to the appellant, Thomas Brown.

Dwight, P. J., and Macomber, J., concur.


text:
    Jacob Bisson et al., Resp'ts, v. The West Shore Railroad Company et al., App'lts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    1. Will—Construction.
    Testator, by his will, gave, devised and bequeathed “ all my said real estate unto my heirs and my said wife's heirs and assigns forever, share and share alike. Held, that testator intended to make but one class, composed of his own and his wife's heirs, and intended they should share and share alike.
    2. Svmb—Devise to a class.
    Where the vesting of a devise made to a class is postponed until a period subsequent to the death of the testator, every person answering the description of amemb'T of the class at the time fixed for the division of the estate will be entitled to a share in it.

      Appeal from the final judgment in this action entered on the 21st day of May, 1892, in the Erie county clerk’s office, and also from the interlocutory judgment entered in said action October 19,1891, as amended by an order entered on the 8th day of February, 1892.

      Charles A. Pooley, for app’lts ;

      Joseph A. Burr, Jr., for resp’ts.'
   Lewis, J.

This action and an action by the same plaintiffs against Ohauncey M. Depew and others, were brought for the partition of certain real property in the town of Cheektowaga, county of Erie. The same question arises in both actions. The same counsel represent the parties in both actions. Louis Wackerman, the common source of title, died possessed of the premises in question, leaving a last will and testament bearing date the 27th day of June, 1861, in which he disposes of the property in controversy by the following clause:

“ To my said wife, Maria Bernhardina Wackerman, I give and bequeath all my real estate that I may die seized with for and during the term of her natural life, provided she, my said wife, shall remain my widow; and from and after her decease or marriage, which shall first happen, I give, devise and bequeath all my- said real estate unto my heirs and my said wife Maria Bernhardina’s heirs, their heirs and assigns forever, share and share alike.”

The- testator died in the month of September, 1868. Thereafter, and on the 29th day of November, 1881, the said Maria Bernhardina died, never having married. There was never born to the said Louis and Maria any children, except one son who died in infancy before the date of the death of his father. At the date of the death of Louis Wackerman, there was no person or persons answering the description of heirs at law of the said Louis Wackerman who were also possible heirs at law of the said Maria Bernhardina Wackerman. Neither the said Louis Wackerman nor the said Maria left them surviving any child or children, nor descendants of deceased children, nor father nor mother. At the date of the death of said Louis Wackerman those persons who would then answer the description of his heirs at law were three brothers, seven nephews and nieces, four of said nephews and nieces were children of one of the brothers of the deceased, three nieces were children of another deceased brother. Besides thesé he left no other heirs at law.

At the date of the death of the testator those persons who would at that time have answered the description of heirs-at-law of his wife, had she at that time died intestate, were three nephews and three nieces, who were children of a deceased brother ; a niece, who was the child of another deceased brother of the said Maria, and whose name was Catharine Eltman, and two nephews and two nieces who were children of a deceased sister of the said Maria.

Intermediate the time of the death of Louis Wackerman and the death of his widow, various changes, by death and otherwise, occurred in the families of the brothers and sisters of the testator and the families of the brothers and sisters of Maria Bernhardina. But, from the view we have taken of the question involved, it is not important that the details of these changes should be stated. Had the testator died intestate, his heirs at law at the time of his death would have been ten in number, representing five different families or stocks. At the time of the death of his wife they would have been fourteen in number, representing four stocks. One of his brothers, during this period, having died intestate without descendants; one of his nieces had died leaving four children. The only change that took place during this period in the heirs of Mrs. Wackerman was that caused by the death of a niece, who died intestate, leaving her surviving six children. Had Maria Bernhardina died intestate, her heirs-at-law, at the time of her death, would have been sixteen in number, representing three stocks. Pi'ior to the commencement of these actions, the heirs of Louis Wackerman and Catharine Eltman, who represented one of the three stocks of the heirs of Maria Bernhardina, conveyed all of their interests in a portion of the premises to the defendant, the West Shore Bailroad Company, and they conveyed all their interests in the remaining portion of the premises to the defendant, Chauncey M. Depew.

The actions were referred to a referee to hear and determine, and he found as one of his conclusions of law: “ That under the last will and testament of the said Louis Wackerman, deceased, all those persons who, at the date of the termination of the particular estate thereby granted, to wit: upon the death of the said Maria Bernhardina Wackerman, his wife, would answer the description of heirs-at-law either of the said Louis Wackerman or of the said Maria Bernhardina Wackerman, took an undivided interest in the land as members of the same classier capita, and not,per stirpes.”

The plaintiff is one of the heirs-at-law of Mrs. Wackerman. The appellants contend that the referee should have found that, under said will, one undivided half part of the premises, of which Louis Wackerman died seized, became vested per stirpes and not per capita in the heirs of said Louis Wackerman, and the other undivided half, in like manner, in the heirs of his wife, and this presents the question in controversy between the parties.

The language of the bequest is: “I give, devise and bequeath all of my said real estate unto my heirs and my said wife Maria Bernhardina’s heirs, their heirs and assigns forever, share and share alike.”

We think the testator intended to make but one class, composed of his own and of his wife’s heirs, and intended they should share and share alike in the premises. The beneficiaries had equal claims, so far as appears, upon the testator’s bounty and the bounty of his wife. He clearly intended that his wife’s heirs should participate equally with his own in the property. As we have seen, the families of the relatives of the testator and his wife were not composed of equal numbers of persons. Catharine Eltman was the sole representative of one of the families of Mrs. Waclcerman’s relatives; another family was composed of six persons. It is not at all probable that the testator intended that Catharine should receive as muchas all of the six children of another family. Like illustrations appear in the families composing his own heirs. No distinction apparently was attempted to be made between them. His and his wife’s heirs are placed upon the same basis, and are treated alike. This construction accords with the language of the will, and gives effect, we think, to the evident intention of the testator.

This being a devise to a class, and the direction being that the •estate shall be divided equally, or share and share alike, the members of the class take per capita, there being nothing in the will showing a contrary intent. And this is so even if the devisees stand in different degrees of consanguinity to the testator. Myres v. Myres, 23 How. Pr., 410; Stevenson v. Lesley, 70 N. Y., 512; In re Verplanck, 91 id., 439; Graves v. Graves, 55 Hun, 58; 28 St. Rep., 57. This case was affirmed in the court of appeals, 126 N. Y., 636; 36 St. Rep., 1013_

_ By this will Mrs. Wackerman was given a life estate in the premises. She survived her husband. It was a case, therefore, of the postponement of the vesting in possession of a devise made to a class until a period subsequent to the death of the testator. In such cases every person answering the description of a member of the class at the time fixed for the division of the estate will be entitled to a share in it. Teed v. Morton, 60 N. Y., 506; Stevenson v. Lesley, supra. This rule was adopted by the referee in his report.

We have examined the authorities referred to in the appellants’ brief and think they fail to sustain their contention. The judgment appealed from should be affirmed, with costs against the •appellant, and the same disposition should be made of the case of the plaintiffs against Ghauncey M. Depew and others.

Dwight, P. J., and Macomber, J., concur.


author: Per Curiam.

text:
    Alexander McSorley, Resp't, v. John G. Prague, App'lt.

      (Court of Appeals,

      Filed January 31, 1893.)

    1. Contract—Construction.
    A contract for the erection of certain houses for defendant provided that he might at any time during the progress of the work require any alteration, deviation, addition or omission from the contract to he made, and that the amount of the same, upon a fair and reasonable valuation, should be added to or deducted from the amount of the contract, as the case might be. Held, that this would cover double plumbing, of which the specifications made no mention, and that for this a fair and reasonable compensation should be made.
    2. Same.
    By a prior contract, which had been abandoned, plaintiff had agreed to do such double plumbing at $800 per house. Held, that in the absence of other proof on the subject, this might properly be regarded as a fair and reasonable compensation for such extra plumbing done under the subsequent contract.
    Appeal from judgment of the New York superior court, general term, affirming judgment entered on report of a referee.

      Gliarles W. Dayton, for app’lt;

      L. E. Warren, for resp’t.

       Affirming 43 St. Rep., 973.

   Per Curiam.

The plaintiff sought to recover from the defendant a balance of $600 unpaid upon two contracts for plumbing-work done and materials furnished in the equipment of various-houses for the defendant in process of construction in Eighty-sixth and Eighty-seventh streets, New York city, during the-years 1888 and 1889, and the amount of forty-nine bills for extra work done and materials furnished for the same and other buildings during the same period, and aggregating over $1,600. The-defendant, by a general denial, put in issue all the material allegations of the complaint. He also set up a counterclaim of $2,264, which he alleged was the amount of the over payments made by him to the plaintiff upon three written contracts for the plumbing-of certain houses in Eighty-fifth, Eighty-sixth and Eighty-seventh streets, and on Ninth and Tenth avenues, in New York, and for other work and materials, all of which amounted to $66,903, but for which defendant had paid $69,167, which was in excess of what was due plaintiff to the amount above named.

The plaintiff replied admitting the performance of the work under the contracts, but stating that there were four of such contracts, instead of three; and also admitting that he had received the sum of $69,167, but denying that the work done and materials furnished under the contracts, and the work additional or extra- thereto, were reasonably worth, and that the defendant agreed to pay therefor only the sum of $66,903.

Upon the issues thus framed, a trial was had before a referee, who found upon competent proofs that the balance of $600 was-due and unpaid upon the two contracts referred to, and that the-plaintiff did the work and furnished the materials specified in the forty-nine bills annexed to plaintiff’s complaint, and that they were of the value of $1,689. These findings disposed of the issues raised by the complaint and the defendant’s general denial, and upon them plaintiff would have been entitled to judgment for $2,289 and interest. But the issues raised by the counterclaim and the reply still remained to be determined, and the referee took the evidence offered by the parties upon that branch of the case, which was quite voluminous, and passed upon the claims of the parties presented by it, and found that the defendant became indebted to ' the plaintiff for the work done under the various contracts, and for extra work in the sum of $71,318, which included all the matters embraced in the plaintiff’s complaint and his affirmative proofs. As the amount paid by defendant to plaintiff was conceded by both parties to be $69,Í67 ; this left a balance due plaintiff of $2,151, which, as it will be seen, was only $138 less than the amount found to be due plaintiff upon the issues raised by the complaint and the general denial; and the referee directed judgment for this sum and interest. The correctness of the referee^s findings upon the issues made by the counterclaim and reply is challenged b}r the defendant only in one respect. It is insisted that the referee erred in making up the total of $71,318, due plaintiff, exclusive of payments, bv including therein an item of $1,500 for double plumbing in five houses upon which work was done by plaintiff under a contract dated January 24, 1889. It is not denied that the double plumbing was done, but ‘the claim is that it was included in the work provided for in that contract, and that payment therefor was necessarily embraced in the sum of $36,250, which was the gross sum to be paid for all the work done and materials furnished under that contract, and for which sum the referee gave credit to plaintiff in making up the total of defendant’s indebtedness. It is thus sought to make it appear that the plaintiff has been twice paid or allowed for the same work. This view is not supported by the evidence in the record. The contract, we think, is clear and explicit and not open to construction in this respect. The original consideration was $32,250, and for this sum the plaintiff agreed to do the plumbing work of three flats and nineteen dwellings, agreeably to the drawings and specifications signed by the parties and thereto annexed.

These specifications make no mention of double plumbing in any of the houses, and it could not, therefore, have been included in the consideration of the agreement. The contract further provides that the defendant may at any time during the progress of the work require any alteration, deviation, addition, or omission from the contract to be made, and the amount of the same, upon a fair and reasonable valuation, shall be added or deducted from the amount of the contract, as the case may be. Provision was thereby made for compensation to the plaintiff for this double plumbing. At the conclusion of the contract there is a paragraph by which the plaintiff agreed for the additional sum of $4,000 to put in extra improved plumbing in five houses on Eighty-sixth street for and as stated in a specification in detail attached to the contract. But there is n'a double plumbing in this specification and consequently no basis for the claim that it was covered by the additional consideration to be paid therefor. This kind of work is first referred to in a contract dated June 25, 1888, in'which plaintiff agreed to do the plumbing work in these three flats and nineteen houses for $32,550, and an extra charge of $300 for each and every house in which double plumbing should be ordered by the defendant. This contract was abandoned, and defendant received a cash credit of $3,500 for its abandonment, and the contract of January 24, 1889, was made, which, as we have seen, does not require the plaintiff in terms to put in this species of work, except as it may be ordered by defendant under the head of additional work, for which a fair and reasonable extra compensation is to be made, and which, in the absence of other proof on the subject, may properly be regarded as the amount which the parties themselves had fixed as its value in the agreement of June, 1888.'

The defendant submits an exception to a finding wherein it was found that on March 12, 1890, the plaintiff gave the defendant a receipt acknowledging the payment by the latter to him of the sum of $550 in full of the contract of January 24, 1889 ; and it is urged that this finding is entirely unsupported by any evidence; that the printed record does not show that any such paper was proven or put in evidence upon the trial. It Is true that no exhibit of that character can be found in the case before-us, but it does not follow that the judgment must, for that reason, be reversed. It is wholly immaterial whether any such formal receipt was given. The material fact was the payment of the-$550, and that it was paid and received at the time stated in full of this particular contract. That fact was not disputed.

The plaintiff and the defendant both testify to it, and the quality of the evidence is not affected by the presence or absence of' a formal written receipt of payment. The use which the referee makes of it, in his opinion, is purely argumentative. The defendant, it seems, made claim for a credit of $665 for moneys paid to-make good some defective work of the plaintiff's upon the houses-embraced in this contract, and the most of which had been expended before the date of this receipt, and the learned referee-comments upon the improbability of the good faith of this claim, and in substance says that it is not likely that the defendant would have paid the plaintiff the sum specified in the receipt, if at the-same time he believed that he had a just claim against the plaintiff for defective work, equaling or exceeding the amount of the balance due on the contract and then paid. The argument-would have the same force if the receipt was not in the case. The fact of payment would still remain from which the same inference could have been drawn by the referee as from the written receipt. There is a strong probability that the receipt was actually introduced in evidence, and there is some ground for the claim, that the certificate to the case is not sufficient to show that, it contains all the evidence, and we might, therefore, be at liberty to presume its admission in support of the finding, but we prefer to regard the variance between the finding and the proof as immaterial, and one which could not in any manner have prejudiced, the defendant.

The judgment must be affirmed, with costs.

All concur.