author: Smith, P. J.: Barker, J.

text:
    FRANK L. PINEO, as Administrator, etc., of NELLIE PINEO, Deceased, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Action for damages for death caused by the defendants negligence — w henav&rdiat will not be set aside as excessive — vigilance required of a passenger at a railway station.

    In an action to recover damages for the negligent killing of the plaintiff’s intestate, brought by her brother as her administrator, it appeared that she was a young girl of about fourteen years of age, bright, intelligent, healthy, active and self-reliant. The evidence tended to show that her mother was dead; that her father had abandoned his family some years before the accident; that he had not supported his daughter, nor did his family know whether he was dead or .alive. On the trial it was assumed that the father was living, and the judge instructed the jury that the father was the next of kin of the deceased and they were to give him, by their verdict, a just and fair compensation for the pecuniary injury he had suffered by reason of the death of his daughter. The jury rendered a verdict of $3,500.
    Held, that the court properly refused to set it aside as excessive. (Barker, J., dissenting.)
    The precaution against being run over, which a passenger is bound to take while in a railroad station, considered.
    Appeal from a judgment, entered on a1'verdict rendered at tbe 'Monroe Circuit, and from an order denying the defendant’s motion for a new trial made upon the minutes of the justice before whom the action ;was tried.
    The action was. brought by the .brother of the intestate, as her administrator, to recover damages for her negligent killing by the •defendant. The mother of the intestate was dead and the father had abandoned his family some years before the accident and had not supported his daughter, nor did his family know whether he was dead or alive.
    On the trial the judge charged as follows: “ The next of kin in this case is the father. Yon are to give such damages as will be a just and fair compensation for the pecuniary injury which he has .suffered.” The jury rendered a verdict for $3,500.

      A. H. Harris, for the appellant.

      Q. Van Voorhis, for the respondent.
   Smith, P. J.:

The action was brought to recover damages for the death of Nellie Pineo, resulting 15th September, 1882, from injuries received by her two days previously in the defendant’s passenger depot at Rochester.

The deceased was fourteen years and seven months old. She had been living with her sister near Penn Yan, and was on her way to Buffalo to live with a married sister residing there. She arrived at the Rochester depot about ten o’clock in the forenoon, over the Auburn branch of the defendant’s road, and was notified by the conductor that she would have to take another train for Buffalo, which would shortly arrive from the east on the Syracuse branch. The depot was 319 feet long and 116 feet wide. Six tracks ran through it, east and west. They were arranged in three pairs; between the pairs was a space about twenty-three feet wide, and the tracks of each pair were about six feet apart. After a little time the expected train arrived, entering the depot on the fourth track from the south. The evidence on the part of the plaintiff tended to show that as the train entered the depot, running at the rate of about four miles an hour, an employe of the defendant told the deceased that was her train; that she was then standing in the space between tracks two and three; that on being so notified she went towards the train, carrying her satchel and parcel; crossed the third track, looking towards the advancing train, and stood in the space between the third and fourth tracks until the engine of the train passed by her. At that juncture a single engine and tender used as a pusher came backing from the west on the third track, and one of the railroad men, apparently supposing the deceased was in danger, rushed up and tried to get hold of her, and she was struck by the pusher, thrown down and shoved along the track, receiving the injuries of which she died. The person who thus interfered for the purpose of rescuing the deceased was a depot baggageman named Bolger, who was called as a witness for the defendant and testified, among other things, that he thought the deceased was intending to cross the track in front of the train, and that she was in danger from the train; that he ran and seized her in his arms without speaking to her or she to him; that she struggled excitedly and got out of his arms, and as she did so whirled around on to the third track and was struck by the pusber. Bolger also was struck by the pusber and knocked down, but not seriously injured. He testified tbat if be bad let the girl stand where sbe was, and she bad not moved, sbe would not have been struck by the pusber, and tbat bis motive was to get lier out of the way of the train and not of the pusber. There was a conflict of testimony as to whether, when Bolger seized the deceased, sbe was standing in the space between tracks three and four or had crossed on to the fourth track. the conductor of the train in which the deceased came to Rochester was called as a witness for the defendant, and be testified tbat the deceased, on the train, asked him to direct her to the Buffalo train at Rochester and he promised to do so, and tbat when they reached the depot be pointed out to her the open space between tracks two and three and told her tbat her train would be in on the second track and tbat if sbe would stand there sbe “ would be all right.”

the judge submitted to the jury the' questions of negligence and , contributory negligence, and no question is made by the appellant’s counsel as to the" sufficiency of the evidence to carry each of those-questions to the jury. It is contended tbat the judge erred in refusing to charge, as requested by the defendant’s counsel, tbat if„ the deceased went between tracks three and four to wait for the stoppage of the train, and then to get aboard of it, sbe assumed the risk, so far as she might be in danger from the backing engine on-track three; and also in refusing to charge tbat in going to tbat space the deceased was bound to look along track three, in both directions, before passing over tbat track, and if sbe failed to do so, and by reason of such failure the accident occurred, the plaintiff cannot recover. In declining the last request the judge said tbat the jury might take into consideration the fact tbat the deceased did not look, upon the question of contributory negligence. And upon tbat subject be bad previously charged tbat “the deceased was not bound to look on both sides; sbe bad the right to assume that some warning would be given of engines running through the station, still sbe had no right to shut her eyes. She must, as the saying is, keep her wits about her.”

We tbink there was no eiror in these respects. Tbe deceased was not required to exercise tbe same precautions as a traveler in tbe highway about to cross a railroad track. Sbe was a passenger,. and was at the depot for the purpose of taking the train at the implied invitation of the defendant. She was notified by the defendant’s employe that the train which had just come in was the one she was to take.. She was obliged to cross track three to reach it, and she had a right to suppose, in the absence of notice to the contrary, that the way was safe. The backing of the engine upon that track without warning, when the passenger train was making its way in the depot, was an act of gross negligence on the part of the defendant which the deceased was not -bound to anticipate. If the bell upon the engine was rung it was no notice to her unless she actually heard it; and that she did not hear it is inferable from the 'circumstances. Nor is the deceased to be held, as matter of law, to have taken the risk of the danger which she encountered by reason of the fact that she started to cross the track before the train had stopped. The train was running slowly. The information conveyed to her was that it was about to stop and that it was time for her to be in readiness to get on, and in the absence of notice to the contrary she had a right to assume that it was then proper and safe for her to be nearer the train with her luggage in a position to get on when it should stop. She was not bound to anticipate that in the moment that would elapse before the train would be brought to a stand still her way would be -cut off by an engine backing down upon the intervening track without warning given to her. So that in going upon the track as she did she is not to be held to have taken the risk of danger from the backing engine, nor is the fact that she did not look in the direction from which the engine came to be imputed to her as negligence as matter of law. At the most it was but a circumstance to be considered by the jury in determining the question of negligence in fact: as the judge charged.

But, again, all the evidence shows that the deceased had crossed track three in safety, whatever apparent danger she was in being from the train on track four, and that her collision with the pusher was in consequence of her struggle to release herself from the grasp of the baggageman. And the evidence warrants the conclusion that she was in' a position where she was in no danger from the pirsher when Bolger seized her, and that but for that act, which, evidently being misunderstood by her, surprised and excited her, she would not have come in contact with the engine. In this view of the case tbe question whether she used due care in crossing the track is immaterial. So, also, is the question whether the bell on the pusher was rung, a question which .the appellant’s counsel contends was erroneously left to the jury, inasmuch as there was no sufficient evidence that it was not rung.

The defendant’s counsel asked the court to charge that if they found that the deceased passed on to track four, and was there when Bolger undertook to get her off, she, by her voluntary act, put herself in danger, and the plaintiff cannot recover. The request was refused and the defendant excepted. If the deceased had been injured by the engine on track four, the request would have been pertinent, but as she received no injury from that source, the refusal was proper.

The defendant’s counsel strenuously insists that the court erred in refusing to charge that there was no evidence that the life of the deceased was of any pecuniary value to her father. The request seems to have been based upon'the evidence tending to show that the father had abandoned his family years before, tnat he had not supported his daughter, and that his family did not know whether he was dead or alive. If the father is living the most that can be claimed from his conduct is that he had emancipated his child, or that the child, by her father’s consent, had become entitled to the fruits of her labor for her own use. But if that be the ease, or if the father be dead, does it follow that there can be no recovery X The statute gives the right of action for the benefit of the next of kin, where there is no husband or wife of the deceased ijei’son. The term “ next of kin ” includes brothers and sisters, or there being none surviving, the children of brothers and sisters. Yet relatives of those classes have no legal claim to what the deceased might have earned; the only basis on which they can claim to have sustained “ pecuniary injuries ” resulting from the death of the deceased, is that if the deceased had lived and accumulated pfoperty they would have been entitled to her unbequeathed assets on her death. And the statute directs the recovery to be distributed as such assets. (Code of Civil Pro., § 1903.) In this view of the case it seems to be immaterial, so far as the right of action by the administrator is concerned, whether the father is living, or whether, if living, he is entitled to receive the earnings of his child. Those questions do not affect the right of recovery or its amount. They are material for the purposes of distribution only.

The verdict was for $3,500. ¥e do not think we would be justified in setting it aside as excessive. The learned judge before whom the cause was tried did not so regard it. The evidence authorized the jury to find that the deceased, just advancing into early womanhood, was bright, intelligent, healthy, active and self-reliant. The question of damages was peculiarly for the jury, and we are not aware of anything in the case to justify the conclusion that in fixing the amount they were influenced by an improper motive.

The judgment and order should be affirmed.

Haight and Bradley, JJ., concurred. '

Barker, J.

(dissenting):

I am of the opinion that a n&w trial should be granted for the reason that the damages are excessive, being wholly unsupported by the evidence bearing on that question. The record discloses that the defendant presented this point to the consideration of the trial court on its motion for a new trial on the minutes. If the party against whom a verdict is rendered claims.that the saméis excessive or unsupported by the evidence, and presents the question to this court on a case containing the evidence, we have the power and it is our duty to consider and determine the question, applying the rule applicable in such cases. (Houghkirk v. Delaware and Hudson Canal Co., 92 N. Y., 219; Ross v. The N. Y. C. and H. R. R. R. Co., Fourth Dept., decided March, 1884, and not reported; Mandeville v. Marvin, 30 Hun, 282.)

On the argument my mind received a very distinct .impression that there is no reasonable measure, between the injuries sustained by the father of the deceased and the compensation awarded him by the jury. A further and more careful consideration of this subject, has altogether confirmed my first impressions, and I shall attempt to show that they are sustained by reason and authority.

The verdict is for the sole benefit of the father of the deceased. On the trial it was assumed that he was then alive, and the judge in express-terms instructed the jury that the father was the next of kin of the deceased, and they were to give him by their verdict a just and fair compensation for .tbe pecuniary injury he had suffered by reason of the death of his daughter. The deceased being a minor, her father had a legal right to her services during her minority, and as the jury have found by their verdict that her death happened by the negligence of the defendant, as the sole cause, he was entitled as a matter of law to a nominal verdict, but nothing more, unless he made proof that he had suffered a pecuniary loss in consequence oí the death of his daughter. If he sustained any such loss it was susceptible of proof and the law exacted its production. The law does not presume that the next of bin of a deceased person has sustained an actual pecuniary loss by reason of his death. As has been stated, where the next of bin is the father and the deceased a minor, then a recovery in a nominal sum is proper, where the negligence of the defendant is the sole cause of the death, for such a verdict simply vindicates his legal right to the services of his child during minority. (Mayne on Damages [Wood’s ed.], chap. 2, p. 5.)

In this case there was no proof of special damages or definite less capable of being established with a proximate accuracy, such as funeral expenses, which might have been allowed if paid or incurred by the father. (Murphy v. The N. Y. C. and H. R. R. R. Co., 88 N. Y., 446.) The damages therefore which the father sustained, if any, were all of a prospective character. The deceased, at the time of her death, did not reside with her father, and he did not at that time claim her services, and by reason of her age and' inexperience, she was incapable of earning anything beyond a reasonable support and the expenses of her education. The elements from which the jury in this case might have assessed the father’s prospective damages, consisted of the age and intelligence of the deceased, and also of the age, health, habits, occupation and financial situation of her father. As to the deceased, everything was proved which the rule requires; as to the father, nothing whatever on these subjects was disclosed by the evidence. The jury were left in utter ignorance on each one of these material and necessary points of inquiry. If alive, proof could have been made on each one of these vital questions, and it was incumbent on the plaintiff tó produce the same. At the time of the trial his whereabouts was unknown. Nine years previous thereto he had abandoned his wife and family and left them to their own resources for support, and since that time none of them have seen or beard one word from him. The rule is, and it has been so adjudged in several cases, that the burden of proof in this class of cases is upon the plaintiff: to prove the pecuniary injury, and to establish such facts as would enable the jury to determine what would be a fair and just compensation with reference thereto to the next of kin, to entitle the plaintiff to recover more than nominal damages, and that the ' jury must, in ■fixing a sum as such. damages, be governed by the weight of evidence before them. (McIntyre v. The New York Central Railroad, 37 N. Y., 287; Houghkirk v. D. and H. C. Co., 92 id., 225; Tilley v. Hudson River Railroad Company, 24 id., 479.)

The plaintiff omitted to make proof concerning the age, health, habits of life, and present financial condition of the father, and because of such omission the recovery should have been limited to nominal damages, and all above that sum is unsupported by the evidence and is excessive. The age as well as the condition of health of a claimant are elements to’ be considered in estimating his prospective damages. If he be advanced in years, and in feeble health, his damages would be greatly less than they would be if he were in the prime of life, strong and vigorous. Without proof on these points a jury cannot reason and deliberate on the -subject of damages, and, in such a ease, if more than a nominal sum be given the same must be the result of conjecture, and can be nothing more than a guess. If we uphold this verdict, we do, in effect, say that the jury are omnipotent in this class of cases, and that there is no rule of law to be observed by them in assessing damages. The statute, in terms, restricts the damages to a fair and just compensation for the pecuniary injury sustained by tlm person fqr whose benefit the action is brought. The jury knew nothing concerning the father, who is entitled to the large verdict which they have rendered in his favor, except that many years before the trial, without cause, he deserted his wife and infant children who had the • strongest claims on him for protection, support .and education. The family relation ceased to exist between him and them, and so long as he continued to abandon the deceased, he had no just claim to her services. By reason of his inexcusable conduct she was manumitted from his control and authority, at least until such time as he assumed the position and discharged the duties of a parent, and there is no-reason for holding that he suffered prospective damages in consequence of her death. (Canovar v. Cooper, 3 Barb., 115; Lehigh Iron Co. v. Rupp, 100 Pa., 95.)

I am in favor of reversing the judgment and granting a new frial.

Judgment and order affirmed.


source: Caselaw Access Project

author: Smith, P. J.:

license: Public Domain

text:
    ANN J. THOMAS, Appellant, v. ORIN S. BACON, Respondent.

      Lease — agreement ifiat the lessor shall lurne a lien on the growing crops — when it nvast he filed to preserve his lien as against that of a mortgagee — what possession must he talcen to render a filing unnecessary.

    The plaintiff leased to the defendant a farm, for three years, to be worked on shares; all crops and other products to be equally divided between them on the farm. The defendant also agreed that the plaintiff should have-a lien on all crops sown on the premises, as security for any money owing to her and for the performance of the obligations of the lease, and that she would execute a chattel mortgage on the crops when requested so to do by the plaintiff. The plaintiff and the defendant resided in separate portions of the house, on the farm, as stipulated in the lease. The lease was never filed in the clerk’s office.

      Held, that although the provision in the lease giving the plaintiff a lien on the crops was valid as between the parties to it, yet, as the lease was not filed in the clerk’s office, it was invalid as against one taking a chattel mortgage upon the interest of the defendant in such crops in good faith and without notice of - the terms of the lease.
    That the fact that the plaintiff resided upon the farm and was a tenant in common of the crops with the defendant, did not give her such a possession of his interest therein as would relieve her from the necessity of filing the lease.
    Appeal from a judgment in favor of the defendant, entered on the report of a referee.

      Henry M. Field, for the appellant.

      Frcmlc Rice, for the respondent.
   Smith, P. J.:

Action to x'ecover for the alleged conversion of a quantity of wheat and barley. Defense — That defendant took the property as the agent of one Coyle the mortgagee of Williams who owned the property.

Tbe referee found, among other facts, that in February, 1880r the plaintiff and said Williams made an agreement under seal, by which the plaintiff leased her farm to Williams for the term of three years from 1st April, 1880, to be worked by Williams on shares. Twenty-seven acres of wheat then growing on the farm were to be harvested by Williams and equally divided, and Williams was to leave the same number of acres sown on the farm at the end of the term, all of which should belong to the plaintiff. All crops and other products of the farm, during said term, were to be equally divided on the farm. Williams agreed that the plaintiff should have a lien on all crops sown on the premises, as security for any money owing her by Williams, and as security for the performance by Williams of her obligation» under the lease, and she was to execute a chattel mortgage on said crops therefor, when requested by the plaintiff. The agreement was never filed in the clerk’s office. Cotemporaneously with the said agreement, Williams executed to the plaintiff a chattel mortgage upon an undivided half interest of said wheat growing on the farm, with other property, which was duly filed 17th February, 1880. Mrs. Williams came on to the farm and put in twenty acres of barley in the spring-of 1880. She and her husband and the plaintiff resided in separate portions of the dwelling-house on the farm as stipulated in .the lease. On the 10th of June, 1880, Mrs. Williams executed to Charles M. Coyle, a chattel mortgage upon the undivided half of said growing wheat and barley, conditioned for the payment of $325, with interest, by the 10th of August, 1880, containing the usual danger clause. That mortgage was duly filed the day it was made. The consideration .for it was the indorsement by Coyle of Mrs. Williams’ note for $325, discounted at bank, which Coyle paid in August, 1880. The avails of the note were placed by Mrs. Williams in Coyle’s hands, for the purpose of paying the plaintiff's mortgage, and he applied them to that purpose in September, 1880. Subsequently the wheat and barley were divided, the plaintiff took her part and the other share was sold by the defendant as the agent of Coyle by virtue of his mortgage. The referee found that Coyle took his mortgage in good faith. He found, as matter of law, that the farm, at least so far as Mrs. Williams’ share of the crops was concerned, was not in the possession of the plaintiff after the making'of the lease; that as between the parties to the lease, the lien and agreement for a lien were good and valid, not only as to the wheat growing at the time, but also as .to the barley, attaching when the latter was put in, but as the instrument creating the lien was not filed nor followed by an actual .and continued change of possession, it was void as against Coyle’s mortgage, and that the defendant is entitled to a dismissal of the ■complaint.

The facts found by the learned referee are supported by the evidence, and we find no error in his legal conclusions. The lease, by its ferrns, made the parties to it tenants in common of the wheat then growdng as well as of the crops thereafter to be put in during the term. (Putnam v. Wise, 1. Hill, 243; Dinehart v. Wilson, 15 Barb., 595; Taylor v. Bradley, 39 N. Y., 129; Thomas v. Williams, 32 Hun, 257, decided by this court in April -last.) As to the , wheat, the agreement was in effect a sale to Mrs. 'Williams of an undivided half of the crop. And the plaintiff recognized Mrs. Williams’ title by taking from her a chattel mortgage of the ' same, cotemporaneous with' the lease. The provision in the lease giving the plaintiff a lien on Mrs.. Williams* share of the crops was .good as between the parties to the lease, but as the instrument was ■not filed in the proper-clerk’s office to give notice to purchasers, the lien was not valid as against Coyle, he being a mortgagee for value and in good faith. The plaintiff had not such possession of Mrs. Williams’ share of the crops as was equivalent to notice of the plaintiff’s lien thereon. Mrs. Williams was in the actual possession of the growing crops under the lease. The plaintiff’s actual possession was limited to the portions of the farm and the house reserved to her in the lease. Although the actual possession of one tenant in common is regarded in law as the possession of both,, as between themselves, yet such legal possession of the co-tenant is not notice to subsequent purchasers of any interest or lien he may have in the share of the actual possessor. To satisfy the statute, the possession must be actual, not merely.constructive or legal. (Steele v. Benham, 84 N. Y., 634.)

We have not overlooked the argument of the appellant’s counsel in which he insists that Coyle was not a bona fide mortgagee, but it has failed to convince us that the finding of the referee on that subject is against evidence. We have not discovered any proof that Coyle had notice of the plaintiff’s lien when he paid the note . at bank, or even when he paid the plaintiff’s mortgage. The counsel speaks of notice to Heininwav, but we are not aware of any evidence that Heminway had notice of the plaintiff’s lien, much less that he received any such notice while he was engaged in Coyle’s business as his agent. The title of Coyle as mortgagee was therefore superior to the lien of the plaintiff, and as the defendant acted under Coyle in taking the property, the referee was right in his conclusion that the complaint should be dismissed.

' We have examined the exceptions taken to rulings of the referee admitting evidence objected to by the plaintiff, but they are unavailing. The testimony objected to all tended to develop the defense which was sustained by the referee

Judgment affirmed.

Bakeek, Haight and Bbadlev, JJ., concurred.

So ordered.


text:
    THE THROOP GRAIN CLEANER COMPANY and HIRAM K. EDWARDS, Sheriff of Onondaga County, Plaintiffs, v. H. CORDENIO SMITH, Defendant.

      Attaching creditor — action try him to collect the demand attached — Code of Owil Procedure, secs. 677, 678 and 679 — he may impeach the good faith of an assignment of the demand.

    Where an action brought by an attaching creditor and a sheriff, as provided in sections' 677, 678 and 679 of the Code of Civil Procedure, to recover a demand attached, is defended upon the ground that the demand was .assigned prior to the levy under the attachment, the attaching creditor is entitled to inquire, into the good faith of the assignment, and if he shows that it was made for the purpose of defeating his remedy it will not be sustained.
    MotioN by the plaintiffs for a new trial, on exceptions taken at the Cayuga Circuit and ordered to be heard at the General Term in the first instance.

      Rollin Tracy, for the plaintiffs.

      Waters, McLellcm & Dillaye, for the defendant.
   Smith, P. J.:

This is an action brought in aid of an attachment issued in an action in favor of the plaintiff, the Throop Grain Cleaner Company, against Edward P. Allis, to reach a demand alleged to be due from the defendant herein to “E. P. Allis & Co.,” the firm name in which the said Allis did business. The action is brought under sections 677, 678 and 679 of the Code of Civil Procedure. The defense relied on is, that before the demand was levied on under the attachment it had been transferred in good faith by E. P. Allis & Co. to The Farrell Foundry and Machine Company of Ansonia, Connecticut.

In April, 1881, Allis & Company, at Milwaukee, agreed to manufacture and furnish to the defendant herein certain machinery at specifie4 prices, which he required for use in his mill at Marcellus,. Onondaga county. Under the contract Allis & Company caused to be shipped to the defendant machinery amounting, at the contract-prices, to the sum of $3,850, a part of which was manufactured by the Farrell Foundry and Machine Company and shipped by them from Ansonia to the defendant at the request of Allis & Company. After the property reached this State, the plaintiff, the Throop Grain Cleaner Company, caused it to be attached in an action in its favor against Allis & Company, and the defendant immediately notified Allis & Company of the fact by telegraph on the ninth of May. On the next day Allis & Company made their drafts on the defendant for $3,850, and rtiailed them to the Farrell Company, asking the latter to credit the same to their account, and at the same time notified the defendant by letter that they had assigned their-account against him to the Farrell Company. Under the same date they wrote a letter to the secretary of the Farrell Company, of which the following is a copy :

“ (PERSONAL.)
MilwauKee, "Wis., May 10, 1881.
“Alton Farrell, Secretary, Ansonia, Oonn. :
Dear Sir. — The Throop Grain Cleaner Company, of Auburn,. N. Y., claim something from us on a patent contract which we dispute. To give us trouble they have instituted some proceedings against some machinery sent to H. O. Smith, Marcellus, N. Y. Our people,. to-day, send drafts on Smith for amount due from him. ¥e charge the amount to you in general account, and want you to credit the same and collect'd;. Please have no error in receiving and treating the drafts as belonging to you.
“ Very truly,
“EDW. P. ALLIS & CO.”

Albs & Company charged the .amount of the drafts to the Earrell Company in account, but the evidence showed that no corresponding credit appeared on the books of the Earrell Company. The latter company presented the drafts to Smith, but he declined to pay without a bond indemnifying him against the claims of others, and-accordingly the Earrell Company, at the request of Allis & Company, gave him a bond, and Allis & Company indemnified the Earrell Company and Smith then paid the drafts to the latter company. Prior to such payment the attachment was levied on the demand. This action was commenced in July, 1881, leave to do so having been previously granted at a Special Term of this court. Judgment was recovered in the action against Allis in August, 1881. (Rinchey v. Stryker, 28 N. Y., 45.)

At the trial the plaintiff asked the court to submit to the jury the question whether the transfer of the claim, if one had been made, was made in good faith, or for the purpose of cheating and defrauding the creditors of Allis &' Company, and especially the plaintiff. The request was refused and the refusal was excepted to.

The transaction in respect to the drafts was probably sufficient, as between the parties to it, to operate as a formal transfer of the demand from the drawer to the drawees. But if it was a sham device, entered into by both parties for the purpose of defeating the remedy of the attachment creditor, it cannot be upheld. (Bills v. National Park Bank of N. Y., 89 N. Y., 343, 352.) When the transfer is set up to defeat the claim of the attaching creditor, the latter may inquire into its good faith. In the case of Castle v. Lewis (78 N. Y., 131), relied upon by the defendant’s counsel, the question of fraud was not suggested at the trial, and it was therefore held that it did not arise on the appeal. (P. 136.) Here the question was not only distinctly raised at the trial, but the issue of good faith was tendered by the answer. And the evidence tending to show that the transfer was not in good faith, as it now stands, if not conclusive, is of a very cogent character.

The motion for a new trial should be granted, costs to abide event.

Barker, Bradley and Corlett, JJ., concurred.

New trial ordered, costs to abide event.


text:
    NELLA BENEDICT, Respondent, v. ROSWELL W. DRIGGS, Appellant.

      Promissory note — validity of one given by a husband to his wife — when the testimony of a party is inadmissible under section 839 of the Cod$ of Civil Procedure.

    This action was brought upon a promissory note for $300, dated January 1,1879, made by the defendant, payable to H. B. Driggs or bearer one year after date, for value received. Upoii the trial it appeared that the payee of the note was the defendant’s wife, and that she had diecl intestate in 1880. The plaintiff, the sister of the deceased, testified that she had had possession of the note from the October preceding the death of the payee; that her sister had let her have it for money loaned to her at different times.

      Held, that as the note purported to be given by the husband for a valuable consideration received from his wife, it was valid and enforceable by her, and equally so by the plaintiff, without regard to what consideration the latter had paid therefor.
    Upon the trial the defendant was asked for what consideration, if any, the note was given, and his counsel offered to prove that it was given without consideration aud that the plaintiff knew this when she took it.

      Held,, that the evidence was properly rejected as inadmissible under section 839 of the Code of Civil Procedure.
    Appeal from a judgment of the Erie County Court in favor of the plaintiff, entered on a verdict.

      E. B. Veddar, for the appellant.

      George L. Lewis, for the respondent.
   Smith, P. J.:

Action upon a promissory note dated 1st January, 1879, made by the defendant, for $300, payable to EC. B. Driggs or bearer, one ■year after date, for value received. At the trial the plaintiff pror duced the note and put it in evidence, proved the amount due upon it and rested. The defendant testified that the payee, H. B. Driggs, was his wife; that the plaintiff, who was her sister, knew the fact, and that his wife died in March, 1880, leaving a will which had been duly proved and the plaintiff was appointed executrix thereof before this suit. The defendant then rested and the proofs were closed. Defendant moved for a nonsuit, and the court, after hearing the arguments of counsel on both sides, permitted .the plaintiff,, on her motion, to give further testimony against defendant’s objection.

The plaintiff then testified that she had the note in her possession from October preceding the death of the payee. On cross-examination she testified that her sister let her have the note for money the-witness lent her at different times during two years before.

The plaintiff again rested and the defendant was recalled and his counsel asked him for what consideration, if any, the note was given, and offered to prove by him that the note was given by him to his wife without -consideration, and that plaintiff knew the fact when she received it. The plaintiff objected to the question and to the evidence so offered being given by the witness on the ground that ho is incompetent under section 829 of the Code. The objection was sustained and the defendant excepted. The jury rendered a verdict for the amount due upon the note.

The principal contention of the appellant’s counsel is, that the note in suit is a nullity by reason of the inability of husband and wife, to make a contract of that nature with each other. Such disability existed at common law, and it still exists, except so far as it has been removed by statute. ■

The act of 1860, concerning the rights and liabilities of husband and wife ” (Laws 1860, chap. 90), vests. a married womau with the legal title to her separate property, and authorizes her to use, collect and invest it in her own name (sec. 1), and to “ bargain, sell, assign and transfer her separate personal property.” (Sec. 2.) Under those provisions a wife may contract with her husband, as well as with third persons, in respect to her separate property. Thus, it has been held that she may employ him as her agent to transact any 'or all of her business (Fairbanks v. Mothersell, 60 Barb., 406); she may contract with him to work for her by the job or otherwise at a stipulated price (Id.); ,she may take title to personal property, directly from him, b.y purchase for a valid consideration (Savage v. O'Neil, 42 Barb., 374; S. C., affirmed, 44 N. Y., 298; Brace v. Gould, 1 T. & C., 226); or by gift, no rights of creditors being'affected thereby (Mack v. Mack, 3 Hun, 323; Rawson v. Penn. R. R. Co., 48 N. Y., 212; Reed v. Gannon, 50 id., 345; per Rapallo, J., 352); she may maintain an action at law upon a claim assigned to her by her husband (Seymour v. Fellows, 77 N. Y., 178), and it has been held that a promissory note given by a husband to his wife in consideration of her releasing her inchoate right of dower in real estate, by joining in a deed, and without intent to defraud his creditors, is valid. (Brooks v. Weaver, 3 Alb. L. J., 283.) So, also, where the consideration of the note given by the husband was in part the wife’s services and in part the services of their minor son. (Id.)

The note in suit bears evidence on its face that the wife had a separate property in reference to which the contract was made. The words for value received ” indicate that the note was given for a valuable consideration passing to the defendant from his wife, and that what so passed belonged to the wife absolutely, independent of her husband. Moreover, the promise of the husband to pay to his wife the sirm specified in the note implies that the money was ■due to her in her own right, free from her husband’s control. If these views are correct it follows that the transaction related to the wife’s separate property and was authorized by the statutes referred to.

These views assume that the note was given for a good consideration, and such is the undisputed evidence. The offer to show the contrary by the testimony of the defendant was properly rejected. The defendant was not a competent witness for -that purpose. (Code, § 829.) The offer and question involved a personal transaction between the witness and his deceased "wife, from whom the plaintiff took title. The suggestion of the appellant’s counsel that the proof may have consisted of declarations made by the payee to some person other than the defendant is unavailing now,’ even if such declarations had been admissible against the plaintiff. Nothing of the kind was suggested at the trial. Prima facie the offer was to show a personal transaction with the deceased. The offer was none the less objectionable because it embraced another subject. Nor had there been any examination of the plaintiff respecting the consideration of the note. The only evidence on that subject was hat which the defendant inserted in the face of the note when he gave it inception.

The note having been given for a good consideration, it is immaerial whether the plaintiff paid value for it or not. 'It is enough that she holds it by a transfer good as between her and the payee.

It appears that she took it for a precedent debt; and whether to apply in extinguishment of it, or as collateral security for its payment, the consideration was "good and sufficient as between the parties to the transfer.

The judgment should be affirmed.

Barker, Haight and Bradley, JJ., concurred.

Judgment affirmed.


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    MILLARD F. RILEY, Respondent, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Appellant.

      Evidence — when a verbal agreement is not merged in a written contract subsequently executed —power of an agent of a railroad to make a special contract as to shipping freight.

    The plaintiff entered into a verbal agreement with the defendant’s agent, at Lockport, by which the latter agreed to furnish a car and transfer a load of peaches from that place to Olean, without a change of cars. Thereafter the plaintiff fitted up, at his own expense, a car furnished by the agent, and loaded it with peaches. The car was sent to Buffalo, where the peaches were placed in a car belonging to a connecting carrier and transported to Olean. At the time of shipping the peaches the plaintiff received from the agent a shipping bill providing for carrying the goods to Buffalo, where the defendant’s line ended. "
    In an action’to recover damages for a breach of the agreement:

      Eeld, that the verbal agreement to send the peaches to Olean without a change of cars, was not merged in the shipping bill, as no reference thereto was made therein.
    That the agreement was within the scope of the agent’s authority, and that the defendant was bound thereby. ,

      Appeal from a judgment,, of the Cattaraugus County Court, entered on a verdict in favor of the plaintiff, rendered on a new trial in that court, upon an appeal from a justice’s .judgment.
    Sprague, Milburn <& Sprague, for the appellant. '

      Cary, Jewell & Ramsey, for the respondent.
   Smith, P. J.:

Action to recover damages for the breach of an alleged agree* ment made at Lockport between the plaintiff and the defendant’s .agent, that the defendant would provide the plaintiff a car for the transportation of a car load of peaches from Lockport to Olean, and that the same should be carried through without a transfer of the peaches to another car.

The plaintiff gave evidence tending to show the making of the alleged agreement, verbally, by the defendant’s agent at Lockport, and that in pursuance of such agreement the plaintiff fitted up at his own expense and loaded with peaches a car furnished to him by the defendant for that purpose, and that instead of. the peaches being carried through in the same car to Olean, they were transferred to. another car at Buffalo, thus causing the damages complained of.

At Buffalo the defendant’s road connected with the road of the Buffalo, New York and Philadelphia Railroad Company, which ran from Buffalo to Olean.

At the time when the peaches were shipped at Lockport the plaintiff received from the defendant’s agent a shipping bill which, the defendant’s counsel contends, merged the parol agreement relied on by the plaintiff, and constitutes the only contract between the parties. The shipping bill simply related to the carriage of the peaches from Lockport to Buffalo and contained no allusion to their transportation beyond that point. The parol agreement related to a different subject. It is apparent from the evidence that both parties understood that the peaches were to be carried from Buffalo to Olean by the connecting company, and the parol agreement was to the effect that the transit from Buffalo to Olean should be effected without a change of cars. For these reasons we think the parol agreement was not merged in the shipping bill.

Nor do we doubt that the parol agreement was within the scope of the authority of the defendant’s agent. His general business was to receive freight and contract for its transportation. In the language of Danforth, J., in Fishkill Savings Institution v. National Bank (80 N. Y., 162, 168), “that cannot be extrinsic to his employment which is adopted as a means of accomplishing the object of his agency.” It is evident that the plaintiff would not have employed the defendant to carry the peaches, but for the agreement of the latter that they should go through to Olean without change. The agreement of the plaintiff to ship by the defendant’s road, and his fitting up the. car for the purpose, at his own expense, were a sufficient consideration for the agreement sued on. The delivery of the car by the defendant to the connecting road at Buffalo did not relieve the defendant from the consequences of a. breach of its agreement that the car should go through to Olean • without change. It is no answer to say that after such delivery the ear was beyond its control. It was the duty of the defendant to make an arrangement with the connecting company by which its agreement with the plaintiff would have been carried out. It was not a fatal error to permit the plaintiff to show that subsequently to the making of the agreement he had shipped perishable property over the defendant’s road and that of the Buffalo, New York and Pittsburgh Company from Lockport to Olean without transferring the cargo. The testimony bore upon the extent of the authority of the agent, or, if not, it was immaterial and harmless.

The judgment should be affirmed.

Haight and Bradley, JJ\, concurred; Barker, J., not sitting.

Judgment affirmed, with costs.


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    THE BANK OF HAMILTON, Plaintiff, v. WILLIAM MUDGETT, Defendant.

      Payment — when the receipt of a new note from a debtor operates as a payment of an overdue one for the same amount then 'surrendered.

    October 2, 1876, tbe plaintiff, a bank, discounted a note for $10,000, made by a manufacturing corporation organized under the general act of this State, to the order of and indorsed by four persons, payable four months after date. Thereafter another note for the same amount,Mated on the day the first fell due, was drawn by the corporation payable to, and indorsed by, the same persons in four months after date, and was discounted by the plaintiff, the proceeds of the discount being applied to take up the first note which was returned to the makers. At the maturity of the second note a third note, similar to the first two, was made, indorsed and discounted and the second note returned to the company. A judgment was thereafter recovered by the plaintiff in an action brought upon the third note against the company. The plaintiff also claimed by virtue of the third note a benefit secured by a mortgage, executed by one of the payees, which covered the third but not t-he first note, and also claimed under the third note in an action brought against the stockholders of the company.
    In this action, brought against a trustee of the company for a failure to file an annual report, it was necessary for the plaintiff to prove that it was a creditor of the company prior to January, 1877.

      Held, that the question whether the plaintiff as well as the company did not intend that the first note, and the debt thereby created, should be paid and extinguished by the subsequent ones should have been left to the jury, and that the court erred in refusing to submit it to them.
    Motion by tbe defendant for a new trial, on exceptions taken at tbe Monroe Circuit, and ordered to be beard at tbe General Term in tbe first instance, after a verdict bad been directed in favor of tbe plaintiff.

      Ed/ward Q. James, for tbe plaintiff.

      J. Break Perkins, for tbe defendant.
   Smith, P. J.:

Action to charge tbe defendant, as a trustee of tbe Rochester Iron Manufacturing Company, a manufacturing corporation organized under chapter 40 of tbe Laws of 1848, with a debt of tbe company for failure to make tbe annual report, as required by tbe twelfth section of tbe act.

The corporation was formed in 1868. It carried on business until February, 1878, when it went into the hands of a receiver, by reason of insolvency. The defendant was one of the trustees of the corporation during the years 1874,1875 and 1876, and was elected a trustee for the year 1877, but he refused to serve. No annual report was made by the trustees of said company in 1874, 1875 or 1876, as required by section 12 of the act. A report for the year 1876 was made in January, 1877, which the defendant signed.

The plaintiff is a banking corporation, created by the laws of the Dominion of Canada, in the corporate name of the “Bank of Hamilton,” doing business at Hamilton, Canada.

On the 2d of October, 1876, the Iron Company made its promissory note in writing, dated that day, for $10,000, payable four months after date to the order of Ezra Jones, B. Spencer, S. M. Spencer and J. Lord, at the Bank of Hamilton. The note was indorsed by the payees and discounted by said bank, and the Iron Company received tbe avails thereof and used the same in its business. The note fell due 5th February, 1877, after said report had Been made and after the defendant ceased to be a trustee. Another note for the same amount, dated on that day, payable to the order of the same persons in four months, at said bank, was made by the company, indorsed by the payees and discounted by the bank, and the proceeds were credited to the company. The company drew its check on the bank, on the seventeenth of February, for $10,000, and the bank returned to the company the October note and charged the company with the amount of the check. At the maturity of the second note in June a third note for the same amount, like the others in all respects, was signed and indorsed by the same parties, and was discounted by the bank, the proceeds were credited to the company, and the second note was paid by the company’s check, which was charged to it on the books of the bank.. The third note, not having been paid at maturity, was prosecuted by the bank. Judgment was recovered upon it against the company, and execution was issued thereon and returned nulla bona. In May, 1878, the bank recovered a judgment upon said third note against Jones and B. Spencer, two of the indorsers, upon which nothing appears to have been paid.

Lord had executed a mortgage to secure his indorsements, which covered the note of June, 1877, but not that of October, 1876. The mortgage was foreclosed in an action in which the plaintiff here was one of the plaintiffs, and claimed an interest by reason of the said note which matured in November, 1877. The plaintiff also proved its claim under the judgment recovered on the last note, -in an action brought against the stockholders of the iron company, under section 24 of the act of 1848.

The statute requires the annual report to be made in the first twenty days of January in each year, and provides that in case of default all the trustees of the company shall be jointly and severally liable for all the debts of the company then existing and ■for all that shall be contracted before such report shall be made. (Laws 1848, chap. 40, § 12; amended, Laws 1871, chap. 657; Laws 1875, chap. 510.)

To recover under this statute, it is neeessary to prove a trusteeship, a default, and the existence of a debt contracted during the continuance of such trusteeship and default. (The Shaler and Hall Quarry Company v. Bliss, 27 N. Y., 297, and cases cited by Selden, J., p. 300.) The plaintiff has no debt against the company which was contracted during the trusteeship of the defendant and while the trustees were in default, unless it be the debt growing out of the discount of the note of October, 1876.

The exceptions in the case raise the following questions, among others, to wit: (1.) Did the transactions above stated, which took place between the parties at or soon after the time of the maturity of said note, amount, in law, to a payment and extinguishment of the debt ? and (2.) If not, should the. question whether the parties in fact intended such payment and extinguishment have been submitted to the jury ?

The plaintiff’s counsel contends that the transactions of February and June, 1$77, did not create a new indebtedness, but were mere renewals of the note of October, 1876, and operated simply as an extension of the period of credit upon the debt thereby contracted, and that there was no question of fact for the jury.

In-general, the taking by a creditor of the debtor’s note for an existing indebtedness, does not merge or extinguish the indebtedness ; the note is simply evidence of the debt, and its operation is only to extend the time of payment. And so successive renewal notes are simply extensions from date to date of tbe time of payment. (The Jagger Iron Company v. Walker, 76 N. Y., 521.) In tbe case last cited it was held that this rule is not changed by the facts that the first of a series of notes so given was indorsed and procured to be discounted by the creditor, and the succeeding ones were each discounted to raise money to take up the preceding one. No note in the series is a payment of the preceding one, unless there has been a discharge of the creditor, as indorser, or unless by the transaction he has obtained a claim against another party. In that case, a manufacturing corporation gave its note for goods purchased, which was indorsed, discounted, and renewed from time to time, the last note taken up by the vendor, action Brought thereon and judgment obtained against the corporation. It was held that the indebtedness which arose on the purchase was not merged or paid. ■ '

In the present case, however, there was ■ no original indebtedness independently of the notes. The indebtedness, had its inception in the discount by the bank of the first note in the series. The bank could not surrender the note and sue upon an independent and prior cause of action. When, therefore, that note was paid, the cause of action based upon it was at an end, and if it was paid by the giving •of a new note, the only debt and the only cause of action then exising was that arising upon the new note.

This^.distinction is recognized in Slaymaker v Gundacker's Executors (10 S. & R., 75); Castleman, Receiver, v. Holmes (4 J. J. Marshall [Ky.], 1; Bank of United States v. Daniel (12 Peters, 34; Phœnix Insurance Company v. Church (81 N. Y., 218), and in a note to Cumber v. Wane (1 Smith’s L. Cas.,* 458). And it has been held that in a transaction by a bank substantially like the one in this case, the bank is a holder of the new note, for value. (Bank of Salina v. Babcock, 21 Wend., 499; Bank of Sandusky v. Scoville, 24 id., 115.)

But notwithstanding the distinction above adverted to, we are inclined-to. the opinion that in view of the evidence in the present case it cannot be said, as matter of law, that the first note was paid and extinguished, but that the question is one of fact, depending upon the intention of the parties to the transaction. (1 Smith’s Lead. Cas., 458.) In Smith v. Harper (5 Cal., 329), it was held that the surrender of á note is prima facie evidence of its payment. In addition to the surrender of the note we have here the facts that the plaintiff brought suit upon the last note, and prosecuted it to judgment, and claimed an interest, by virtue of it, in the Lord mortgage and in the proceeding against the stockholders of the Iron Company. In view of these facts we think there was a question whether the plaintiff, as well as well as the Iron Company, did not intend a payment and extinguishment of the first note and the debt thereby created, which should have been submitted to the jury-

It follows that the refusal to leave that' question to the jury was error, and for that reason there should be a new trial, costs to abide the event.

Barker, Bradley and Haight, JJ., concurred.

New trial ordered, costs to abide the event.


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    PETER J. FERRIS, Appellant, v. ROSWELL L. BURROWS, as Executor, etc., of SOPHIA PIERCE, Deceased, and Others, Respondents.

      Set-off — right of the executor to set off against a legacy a claim due from a fvrm of which the legatee was the sole surviving pa/rtner.

    Upon the judicial settlement of his accounts an executor is entitled to set off against a legacy a debt due to the testator from a firm of which the legatee was, at the time of the death of the testator, the sole surviving partner.
    Such set-off is good, as against an individual creditor of the legatee to whom the legatee has subsequently assigned his legacy, the legatee and the firm being both insolvent.
    Appeal from part of a decree of the Surrogate’s Court of Erie county, entered on the 22d day of January, 1884, in the matter of the judicial settlement of the accounts of Roswell L. Burrows, as executor of the last will and testament of Sophia Pierce, deceased.
    The part of said decree appealed from is as follows: “ It is ordered, adjudged and decreed that the said claim of Peter J. Ferris as to said sum of three thousand and twenty-five dollars and fifty cents be not allowed, and that said sum be offset against and deducted from the share of Andrew J. Pierce, as legatee under said will, leaving the balance of said share, amounting to one thousand one hundred and fifty-five dollars and fifty-three cents, which it is hereby-ordered and adjudged that the said Peter J. Perris, as such creditor and assignee, is entitled to have paid to him.”
    Sophia Pierce, late of the city of Buffalo, Erie county, New York, died in said city on or about the 9th day of March, 1877, leaving a last will and testament, dated and executed January 14,1871, which has been duly admitted to probate by the surrogate of the county of Erie, April 10, 1877, and letters testamentary thereon were duly issued by said surrogate, April 10, 1877, to Roswell L. Burrow, the executor named in said will, who duly qualified, and is acting as such executor. By the terms of said will said Sophia, Pierce devised and bequeathed all her real and personal estate as follows: One-fourth , to the children of her deceased son Charles L. Pierce, one-fourth to her son Jerome Pierce, one-fourth to her son Andrew J. Pierce, and the remaining one-fourth to her daughter Sophia L. Beam, her share to be invested as the will directed. The said Sophia Pierce left an estate, which has been administered, and the executor has presented his final account for distribution.
    At the time of the death of the said Sophia Pierce said Jerome Pierce owed her an amount for money advanced to him personally, more than his distributive share of her estate. Said Jerome Pierce died insolvent in January, 1878, and the balance owing from him, over and above his distributive share, has been a loss to the estate. The said Andrew J. Pierce, at the time of his mother’s death as above stated, owed her, on two individual promissory notes, a sum which, with interest to the 22d day of January, 1884, amounts to $2,240.69.
    At the time of the death of said Sophia Pierce, as above stated, the firm of Jerome Pierce & Co. consisted of said Jerome Pierce and said Andrew J. Pierce, who were carrying on business as copartners under said firm name at said city of Buffalo, and continued so to do until the said firm was dissolved by the death of said Jerome Pierce, at the city of Buffalo, January 3, 1878, leaving him surviving said Andrew J. Pierce.
    At the time of the death of said Sophia Pierce, said firm of Jerome Pierce & Co. owed her on a promissory note, dated January 2, 1875, given by said firm to her, for $5,368.08, a sum with interest to April 16, 1877, amounting to $6,229.56.
    On the 18th day of May, 1878, said Andrew J. Pierce, as such surviving partner, being insolvent, made an assignment of all the property and assets of said firm to Daniel O. Beard, in trust, for the benefit of the creditors of said firm. Said assignee has completed said trust and rendered his final account thereof to the County Court of Erie county, and has been by said court duly discharged as such assignee. Said assignee paid to the creditors of said firm, including said Burrows, as executor as aforesaid, sixty-three thirty-eight one hundredths cents on the dollar of their respective claims as allowed by him; the amount so paid to said executor being the sum of $5,216.18, February 18, 1882, leaving a balance unpaid to said executor of said indebtedness so as aforesaid due him, on account of said note of said firm, amounting on the 22d day of January, 1884, with interest, to the sum of $3,025.50.
    Said Sophia Pierce, at the time of .her death, and Peter J. Ferris, -with nine other persons, were on the bond, as sureties of said Andrew J. Pierce, as guardian of certain children of said Charles L. Pierce, deceased. Since then said Peter J. Ferris and other bondsmen have been obliged to pay on account of said bond a sum amounting with interest to January 22, 1884, to $6,567.50. The said Peter J. Ferris has paid the total amount of said sum, and has had an assignment to him of all claims of said other bondsmen. The sum of $597.04, being the contributory share of said estate of said Sophia Pierce, has been decreed to be paid to said Ferris out of said estate, leaving unpaid to said Ferris as such individual creditor of Andrew J. Pierce, including interest to January 22, 1884, the sum of $5,970.46.
    After the assignment of said Andrew J. Pierce, as such surviving partner, to said Beard as aforesaid, in trust for the benefit of the copartnership creditors of said firm, the said Andrew J. Pierce, by assignment made and dated January 25,1882, assigned to said Ferris his share of the estate of said Sophia Pierce to apply on said indi vidual indebtedness of said Andrew J. Pierce, and said Andrew J. Pierce is now insolvent, and has been insolvent since the 18th of May, 1878.

      Sheldon T. Yiele, for the appellant.

      Charles B. Hill, for A. S. Pierce and others, respondents.

      Roswéll L. Burrows, executor, respondent in person.
   Smith, P. J.:

The appellant’s counsel invokes the well established rule of equity that in marshaling the assets of an insolvent partner the individual creditors shall be first paid out of the individual assets of their debtor before the partnership creditors can claim anything. (Story’s Eq. Jur., § 675.) That rule is inapplicable to the proceeding under review, the object of which is not to marshal the assets of the insolvent debtor Andrew J. Pierce, but to distribute the solvent estate of the testatrix Sophia Pierce. The only question is whether in ascertaining the amount to be paid to the assignee of Andrew J. Pierce, as a legatee under the will of the testatrix, the claim of the •executor against the legatee, as surviving partner of the firm of Jerome Pierce & Co., may -be retained or set off against the legacy.

That it may be set off, even at law, seems clear. Such right of set-off results from the common-law rule that a debt due to partners is due to them jointly, and upon the death of one, the sole right survives to the other. Although the survivor collects partnership debts under a liability to account, yet at law he is the sole creditor, .and has the sole power to collect the debt and to maintain a suit to recover it. (Holbrook v. Lackey, 13 Metc., 132).

As legal consequences resulting from this rule, it has been held that the survivor in suing may join a separate debt of his own. (Hancock v. Haywood, 3 T. R., 433). In a suit against him for a separate debt of his own he may-set off a debt due to him and his deceased partner jointly (Slipper v. Stidstone, 5 T. R., 493), and a debt due from the plaintiff, as surviving partner, may be set off against a ■debt due from the defendant to the plaintiff severally. (French v. Andrade, 6 T. R., 582; Holbrook v. Lackey, supra.) Most of the cases above cited are referred to approvingly in Miller v. Receiver of Franklin Bank (1 Paige, 444), and Nehrboss v. Bliss (88 N. Y., 600). The rule established by them has not been changed by our statutes providing for the set-off of mutual demands. A debt legally due from the plaintiff to the defendant, at the time of the commencement of the action, is a proper subject of set-off under the statute. (2 R. S., 354, § 18, sub. 7; old Code, § 150; new Code, § 501.)

The circumstance that the present claimant is the assignee of the legatee does not affect the right of the executor to set off or retain-the amount unpaid upon the note, inasmuch as at the time of the assignment the note was held by him and was then past due. (Martin v. Kunzmuller, 37 N. Y., 396.)

The debt in question would be a proper set-off in equity, if not at law. In general, equity requires that cross demands be set off against each-other, if, from the nature of the claim or the situation of the parties, justice cannot otherwise be done. (Smith v. Felton, 43 N. Y., 419; Coffin v. McLean, 80 id., 560.) It would be inequitable to the estate of the testatrix to compel the payment of the full amount of the legacy and remit the executor to his action, against the insolvent debtor. .

The appellant’s counsel cites the case of Hodgson v. Fox (9 Ch. Div., 673; S. C., 26 Eng. R. [Moak’s Notes], 431). In that case it-appeared .that a week before the d^ath of a testatrix, a debtor to her, who was one of the residuary legatees under her will, dated several years previously, became bankrupt. The debt was never-proved by the testatrix or by her executors, nor had any dividend been declared in the bankruptcy. It was held by Yice Chancellor Hall that the executors were not entitled to set off or retain the amount of the debt due to the testatrix against the share of the bankrupt, nor, under the circumstances, any amount in respect of dividends on such debt. The question of the right to set off the debt underwent no discussion, the vice chancellor merely remarking that he followed the case of Cherry v. Boultbee (2 Keen, 319; S. C., 4 My. & Cr., 442).

In Cherry v. Boultbee the legacies were given in a form apparently intended to exclude the claims of creditors, and stress was laid upon that fact. Here there is nothing of that tenor in the will. Had the claim of the executor been against the legatee individually, instead of being against him - as the survivor of the firm, the right of set-off could hardly be doubted. If the views above expressed are correct, the right is the same against him as survivor.

The part of tbe decree appealed from should be affirmed, with costs to tbe respondents.

Tbe respondents suggest that separate bills of costs should be allowed. We have not tbe facts before us necessary to a disposition of that claim. Leave is granted to present it by motion at Special Term on notice.

Barker, Haight and Bradley, JJ., concurred.

Tbe part of tbe decree appealed from affirmed, with costs to tbe respondents. Leave to' move for separate bills of costs at Special Term granted.


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    OLIVER H. P. CHAMPLIN and AMELIA T. CHAMPLIN, Respondents, v. THOMAS STODDARD, Appellant, Impleaded, etc.

      Damages — measure of, in an action for the unlawful sale of articles in violation of the plaintiff s’ exclusive right to make a/nd sell them.

    This aetion was brought to recover the damages sustained by the plaintiffs by reason of the unlawful manufacture and sale hy the defendant of a cosmetic, the right to manufacture and sell which belonged to the plaintiffs. The referee allowed the plaintiffs to recover as damages the amount received hy the defendant upon the sales made hy him, less the amount which it would have cost the plaintiffs to make and vend the quantity of the cosmetic so sold. It appeared that the plaintiffs were prepared and able to make and sell this quantity, in addition to what they did actually sell.
    ' Held, that the defendant could not complain of the measure of damages adopted by the referee.
    The -question as to what proof of the defendant’s participation in the compounding and selling of the cosmetic was sufficient 'to sustain the action, considered.
    Appeal from an interlocutory judgment entered herein, adjudging that tbe defendant Thomas Stoddard had infringed upon the right and title of tbe plaintiffs to make and vend a certain cosmetic known as “ Champlin’s Liquid Pearl,” and ordering a reference to ascertain tbe amount of tbe damages sustained by tbe plaintiffs by reason of sncb infringement, and also from an order of tbe Special Term overruling tbe defendant’s exceptions to tbe report of the referee, and confirming such report, and also from tbe final judgment herein for tbe recovery of tbe damages reported by the referee.

      Norris Morey, for tbe appellant.

      James A. Allen, for tbe respondents.
   Smith, P. J.:

Tbe argument of the learned counsel for tbe appellant is directed mainly to the measure of damages adopted by tbe referee, and to tbe amount of damages wbicb be has awarded.

the finding of the referee as to the amount of sales made by the appellant is challenged on the ground that it is not warranted by the evidence, the contention on the part of the appellant being that such sales were made, not by the appellant, but by the firm of Stoddart Brothers,” on account of diaries Stoddart alone. the appellant and Charles Stoddart were brothers and they composed the said firm of “Stoddart Brothers.” the referee, in bolding that the sales made at the place of business of the firm were made by the appellant, merely followed the adjudication of the. court at Special Term, and that adjudication was fully warranted by the evidence, which tended to show that the appellant (who, by his contract with the plaintiff, was bound not to manufacture or vend the cosmetic in question, the formula for the preparation of wbicb was a secr.et of trade which be bad sold to the plaintiffs for a valuable consideration) took part in the compounding, bottling and labeling of the cosmetic made at the store of said firm, and in shipping the same. The cosmetic so made and put upon the market by bis agency being an infringement of the plaintiffs’ rights, the appellant was none the less liable for the damages to the plaintiffs resulting therefrom, because be associated bis brother with himself in the enterprise, and assumed to carry on the business in the name of the firm, on bis brother’s account.

Tbe measure of damages adopted by the referee, we think, is one of wbicb the appellant can not complain. It was tbe price realized by tbe appellant from bis sales, less what it would have cost the plaintiffs to make and vend tbe quantity sold by tbe appellant. Tbe referee found, upon sufficient evidence, that the plaintiffs were prepared and able to have sold tbe same quantity, in addition to what they did sell, during the same period. The evidence shows very clearly that the defendant’s sales were made largely in places where the plaintiffs had an established market which they had built up by extensive advertising, the defendant’s sales being at a reduced price, and in great part to persons who had been customers of the plaintiffs. The case seems analogous to that of an infringement upon a patent, so far as the measure' of damages is concerned. In patent cases, where the plaintiff may reasonably and fairly be said to have possessed the facilities for making the sales which were made by the defendant, the rule of damages against the infringer is the difference between what the quantity of the article sold by the defendant would have cost the plaintiff to produce and sell, and the sum which, at the current prices at which the plaintiff sold his manufactures, he would have realized for the infringing goods disposed of by the defendant. (Bigelow Carpet Co. v. Dobson, 10 Fed. R., 385; American Saw Company v. Emerson, 8 id., 806; Buck v. Hermance, 1 Blatch. R., 398, 406.) Applying this principle to the case, it follows that the plaintiffs have not recovered more than they are entitled to.

Mr. Justice Barker, in his opinion at Special Term, on overruling the defendant’s exceptions to the referee’s report, also likened the ease to an action brought for a breach of an agreement not to engage in a certain kind of business at a particular place for a specified number of years, and in analogy to those eases he upheld the rule of damages adopted by the referee. Ve concur in his conclusion on that point. He cited the cases of Doyle v. Dixon (97 Mass., 208), and Marsh v. Billings (7 Cush., 322).

It was not error to allow proof of the advertising done by the plaintiffs. It was competent for the purpose of showing what they had done by way of establishing a market in sections of the country where the defendant subsequently made sales.

~We think the judgment and order appealed from should be-affirmed, with costs to the respondents.

Bradley and Corlbtt, JJ., concurred; Barker, J., not sitting,

Judgment and order affirmed, wi th costs.


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    HENRY E. RIPLEY and REUBEN REEVES, as Overseers of the Poor of the TOWN OF MACEDON, Respondents, v. JOHN McCANN, Appellant.

      Action to recover a penalty undm- the excise lam— the reference to the statute upon the summons — when it is sufficient — Code of Oivil Procedure, sec. 1897 — it does not apply to the complaint — it is sufficient if the overseers of the poor prosecuting the action are such de facto — what evidence shows the liquor sold to he intoxicating, t
    A summons, issued in an action to recover penalties for a violation of the provisions of the excise law, had upon it the following indorsement: “ This summons is issued to collect penalties for violation of sections 13 and 14 of the act to suppress intemperance and' to regúlate the sale of intoxicating liquors, passed April 16, 1857, and the acts amendatory thereof.”

      Held, that the indorsement sufficiently complied with the requirements of section 1897 of the Code of Civil Procedure, requiring a general reference to the statute to he indorsed on the summons in actions to recover a penalty or forfeiture.
    That as causes of actions for violations of section 13 and of section 34 might he joined in one complaint, the indorsement might properly refer to both sections.
    That the regularity of the indorsement was not affected by the fact that the complaint, as filed, set forth a cause of action for a violation of only one of the said sections.
    That the addition of the words ' ‘ and the acts amendatory thereof ” did not vitiate the indorsement, as the sections referred to were not affected by any of the amendatory acts.
    The statutory provision in respect to the indorsement does not apply to the complaint, the sufficiency of the latter is to be determined by the rules of pleading.
    Where the testimony shows that the two plaintiffs prosecuting the action acted as overseers of the poor, it is not necessary to show that they were overseers de jure, or that the town had not voted to have hut oue such officer.
    A witness testified that he bought cider of the defendant, and that after drinking several glasses thereof he became partially intoxicated.

      Held, that this was sufficient to show that the liquor sold by the defendant was intoxicating.
    Appeal by the defendant from a judgment of the Wayne County Court, affirming a justice’s judgment for tbe recovery against the defendant of penalties under the excise law.

      M. K. Burnham, for the appellant. c

      Gamp da Dunwell, for the respondents.
   Smith, P. J.:

Action to recover penalties for violating certain provisions of the excise, law. On the return day of the summons the defendant ■appeared, by counsel, before tlie justice, for the purpose of objécting to the summons on the ground that it was not properly indorsed, and the objection having been overruled, he left the court and did not again appear.

The summons was indorsed as follows: “ This summons is issued to collect penalties for violations of sections 13 and 14 of the act to .suppress intemperance and to regulate the sale of intoxicating liquors, passed .April 16, 1857, and the acts amendatory thereof.” (Dated.) “November 24, 1880.” (Signed.) “N. B. Packard, Justice of the Peace.”

Section 1897 of the Code of Civil Procedure provides that “in an action to recover a penalty or forfeiture given by a statute, * * * a general reference to the statute must be indorsed upon the copy of the summons so delivered, in the following form : ‘According to the provisions of,’ etc., adding such a description of the statute as will identify it with convenient certainty, and also specifying the section, if penalties and forfeitures are given, in different sections thereof, for different acts or omissions.”

The appellant’s counsel is understood to insist that the indorsement in this case is insufficient, because it specifies more than one section of the statute, his argument being, that if such an indorsement is held to comply with the statute, the plaintiffs may with •equal propriety refer to all the sections in the excise law, and thus defeat the object of the provision which requires the indorsement to specify the section.

Section 13 imposes a penalty for selling strong or spirituous liquors or wines in quantities less than five gallons without a license. The fourteenth section imposes a like penalty for selling like liquors to be drunk on the premises, without a tavern-keeper’s license. If the plaintiffs chose they might have united causes of action under each of those sections in one complaint, but in order to do so they must have specified each section in the indorsement on the summons, and an indorsement of that character, in that case, would have been regular. The indorsement in this case did that and nothing more, and it did it in the form prescribed by the statute. The fact that the plaintiffs in their complaint proceeded under only one of the sections so specified, did not affect the sufficiency of the indorsement. If the position of the defendant’s counsel is well taken, penalties given by different sections of the act cannot be sued for in one action, although the rules of pleading permit them to be united, a result which we think the legislature did not intend.

The indorsement is objected to as not being sufficiently specific, for the further reason that it refers not only to sections 13 and 14 of the act of 1857, but also to “the acts amendatory thereof.” The indorsement is none the less specific by reason of the latter clause. It still confines the action to a claim for the penalties given by the two sections specified. It is simply matter of description of the act containing the sections specified, i. e., the act of 1857, as subsequently amended ; the ■ amendments do not touch the sections-referred to, they still being in their original form. We think the indorsement sufficiently complied with the statute.

The complaint alleges that the defendant was indebted to the plaintiffs “ for several penalties for violations of sections 13 and 14 of the act,” etc., and it then sets out that the defendant, at different times, sold strong and spirituous liquors in less quantities’ than five gallons at a time without a license. It is insisted that the complaint is defective for not pointing out the very section under which the plaintiffs claimed to recover. The provision of the statute in respect to the indorsement does not apply to the complaint. The sufficiency of the complaint is to be tested by the-rules of pleading. It sets out several good causes of action under-section 13, and the reference to section 14 contained in it may be treated as surplusage. The complaint contains three separate counts, each charging the defendant with acts which constitute an-offense under section 13.

The testimony shows that the plaintiffs acted as overseers of the-poor and that they united in bringing the action. It was not necessary, as suggested by the appellant’s counsel, to show that they were: overseers de jure, or that the town had not voted to have but one such officer.

The counsel for the appellant strenuously contends that the proof failed to show that the cider sold by the defendant came within the-prohibition of the excise law. The witness Wilson testified that the cider which he bought of defendant, and of which he drank several glasses, partially intoxicated him.- That was enough to bring the-case within the rule laid down in the Board of Commissioners of Excise of Tompkins County v. Taylor (21 N. Y., 177), which has been followed in several subsequent decisions. As the cider was shown to have contained enough of the inebriating element, when taken into the human stomach, to produce intoxication, the sale of it in quantities less than five gallons, without a license, rendered the vendor liable under section 13. The fact that other witnesses called were not intoxicated by the beverage, which they bought of the defendant about the same time, is immaterial. There is no evidence that the liquor sold to them was of the same kind and character as that sold to Wilson.

The judgment should be affirmed.

Barker, Haight and Bradley, JJ., concurred.

Judgment affirmed.


text:
    ALEXANDER MYERS, Plaintiff, v. STEPHEN DORMAN, Defendant.

      Agreement not to bid at a sheriff’s sale — not void if made in good faith, by persons having liens on the propeedy— statute of frmds — when the defense thereof must be pleaded — what communications between attorney and client a/re privileged.

    On May 12,1876, the plaintiff, the defendant and one Taylor each recovered a judgment against J. L. Dorman, upon each of which judgments an execution was issued to the sheriff. The three judgments amounted to $1,839.87. At that time the sheriff had levied on goods of Dorman under prior executions, amounting to $2,432.55. On the day of sale it was agreed between the defendant, the plaintiff and Taylor that the last two should refrain from bidding and permit the defendant to purchase the goods, he promising to pay to them the amounts due on their judgments. The defendant purchased the goods for $2,440, 'paid off a prior judgment of $100, and thereafter ref used to fiay the amounts due on the two judgments of the plaintiff and Taylor.

      Sold, that as the jury had found that the agreement was not made with any fraudulent intent to prevent bidding, and as all the parties to the agreement had liens upon the property, which they sought to protect by it, the agreement was valid, and the promise of the - defendant to pay the amounts of the two judgments was enforceable.

      MairsKy. Bussell (66 ÍT. T., 288); Mime v. Garrison (83 id., 14) followed; Thompson y. Dames (13 Johns., 112) not followed.

      That the defendant could not claim that the agreement was void, under the statute of frauds, because:
    (1.) He had not pleaded it as a defense to the agreement which was set out in the complaint.
    (2.) His agreement was founded upon a new consideration, viz., the promise of the plaintiff and Taylor hot to bid at the sale.
    Communications between a person and one who has formerly acted as attorney for him in respect to the matter in which he has so acted, and arising therefrom, are privileged.
    Motion by the defendant for a new trial, on exceptions taken at the Steuben Circuit, and ordered to be heard at the General Term in the first instance.

      M. jRumsey Miller, for the plaintiff.

      A. S. Kendall for the defendant.
   Smith, P. J.:

On the 12th of May, 1876, the 'plaintiff, the defendant and one Taylor each recovered a judgment against John L. Dorman, a son of the defendant, and on the same day issued executions thereon to the sheriff. Each of said judgments was for over $600, and the three amounted to the sum of $1,839.87. ' At that time the sheriff had in his hands executions previously delivered to him on prior judgments amounting to the sum of $2,432.55, by virtue of which he had levied on the goods of the debtor. On the 15th of May, 1876, the sheriff being about to sell the goods under the said executions, an oral agreement was made between the plaintiff, the defendant and Taylor, in substance, that the plaintiff and Taylor would refrain from bidding at the sale and permit the defendant to become the purchaser, and that the defendant would pay the plaintiff and Taylor their said judgments, which, together with the defendant’s judgments, were liens on the property. Pursuant to the agreement the plaintiff and Taylor refrained from bidding, except that Taylor made one bid at the request of the defendant in order to carry out the arrangement, and the defendant became the purchaser of the goods at $2,440. At the same time the defendant borrowed of the plaintiff $100 to pay a prior judgment, which was a lien on the goods, and gave the plaintiff his note for that amount. Subsequently Taylor assigned his judgment and his interest in the agreement of the defendant to pay the same to the plaintiff. This action is brought upon the agreement and the note.

The defendant’s counsel contends that the agreement was one to prevent or suppress competition at a public sale, and was therefore against public policy and void. The general rule is that agreements which, in their necessary operation upon the parties to them, tend to restrain their natural rivalry and competition, and thus to result in the disadvantage of the public or of third parties, are against the principles of sound public policy, and are void. (Atcheson v. Mallon, 43 N. Y., 147, per Folger, J.; Jones v. Caswell, 3 Johns. Cases, 29; Doolin v. Ward, 6 Johns., 194; Wilbur v. How, 8 id., 444; Thompson v. Davies, 13 id., 112; Meech v. Bennett, Hill & Hen., 191; Brackett v. Wyman, 48 N. Y., 667.) But there are cases holding that the fact that an agreement has the effect to prevent competition at a public sale does not necessarily render the agreement void ; it depends on the intent. Thus, in Phippen v. Stickney (3 Metc., 384), it was held that an agreement by two or more persons that one of them only will bid at an auction of property, and will become the purchaser for the benefit of them all, is illegal, if it be made for the purpose of preventing competition at the bidding and depreciating the price of the property below the fair market value. Aliter, if the purpose of the agreement be to enable each of the parties to become a purchaser, when he desires a part of the property offered for sale, and not the whole; or if the agreement be for any other honest and reasonable purpose. That case was approved and followed in Marsh v. Russell (66 N. Y., 288), in which it was held that the members of a partnership formed for the purpose of carrying on the business of furnishing recruits during the war of the rebellion had the right to agree, in their articles of copartnership, that they would not come in competition with each other, or furnish recruits for less than a price fixed, and that such an agreement can only be condemned on proof that it was made as part of a conspiracy to control prices or create a monopoly, and so against public policy, or that it was made for some other unlawful purpose. The cases of Doolin v. Ward, Atcheson v. Mallon, and several others of like holding, were distinguished. In the later case of Marie v. Garrison (83 N. Y., 14), the case of Phippen and that of Marsh (supra) were cited approv-' ingly, and it was said by Andrews, Oh. J., speaking for the court, that “the mere fact that an arrangement fairly entered into, with honest motives, for the preservation of existing rights and property, may incidentally restrict competition at a public or judicial sale, does not, we think, render the arrangement illegal. The question of intent, at all events, is one for the jury, upon the whole facts as they shall appear on the trial.” (P. 28.)

The doctrine deducible from the case of PMppen and the others above cited in which it is approved and followed, seems to be that an agreement made by parties, one or more of whom has a lien upon, or an interest in, the property about to be disposed of at a public or judicial sale, is not against public policy, because it has the effect to prevent competition at such' sale, provided it was made, not with the intent of producing that effect, but was fairly made to protect thq lien or interest of the parties, or for any other reasonable and lawful purpose. It is somewhat difficult to reconcile that doctrine with some of the earlier cases, and especially with Thompson v. Davies (supra), In that case, A. and JB. having executions against C., of which A.’s was the elder lien, and C. being indebted to D., it was agreed between A. and D. that A. should pay D. $225; that at the sale under the executions A. should bid off the personal property of C. to the amount of his execution, and that D. should bid off the real property of C. to the amount of B.’s execution, should dispose of the same, and after satisfying his own demands against C., should refund A. the said sum of $225. A. and D., at the sale bid off the propertry of O. in conformity to the agreement, and D. disposed of the real estate, and after satisfying his own demands 'against O. there was a sufficient surplus to repay A., and A. sued to recover it. The agreement was held void as tending to prevent competition at the sale. Spenoer, J., delivering the opinion of the court, said: “ Whatever may have been the motives of the parties in making the agreement, and however upright their intentions, the question recurs, is not the promise made by the defendant void, as contravening established principles of public policy ? If the consideration be ever so meritorious, yet, if the act agreed to be done, and which forms the basis of the agreement, be unlawful, the promise cannot be enforced in a court of law.” * * * “ The abstaining from bidding, upon concert and by agreement, under the promise of a benefit for thus abstaining, is tbe very evil the law intends to repress.” *' * * “ The principle is of too salutary a nature to permit any refinements 1 wbicb go to sap or pervert it.” Now, in that case, a jury might have said that the only object of the parties in making the arrangement was to collect their respective demands against O. out of his property; yet, in the judgment of the court, that purpose, if it had existed and had been the only purpose, would not have made the agreement valid. The later cases, above cited, from the sixty-sixth and eighty-third of the New York Reports, as we understand them, have essentially modified that doctrine, and we must follow them if they are applicable to the ease in hand.

The testimony given at the trial under review showed that each' of the parties to the agreement had an interest in the property about to be sold, and the agreement ■ had the effect to vest in the defendant the title to the property, freed from the liens of the plaintiff and Taylor, the defendant promising to pay their judgments. It was an agreement that one should purchase for the benefit of all, as effectually as if it had been arranged that each should share directly in the title. The case seems to us to be squarely within the rule laid down in Marsh v. Russell and Marie v. Garrison, and as the question of intent was fairly submitted to the jury there is nothing in this branch of the case to disturb the verdict.

, The agreement of the plaintiff and, Taylor not to bid was a sufficient consideration for the defendant’s promise. (Jones v. Caswell, supra; Thompson v. Davies, supra.)

' The court did not err in refusing to charge that the agreement was void by the statute of frauds. The defendant was not in a position to avail himself of the statute, he not having pleaded it as a defense to the agreement which was set out in the complaint. (Porter v. Wormser, 94 N. Y., 431; per Andrews, J., 450.) But the case is not within the statute, for the reason that the defendant’s promise to pay the debt of the judgment debtor was founded upon a new consideration, to wit, the promise of the plaintiff and Taylor above stated. (Leonard v. Vredenburgh, 8 Johns., 29, 39; Prime v. Koehler, 11 N. Y., 91; Milk v. Rich, 15 Hun, 178; S. C. affirmed, 80 N. Y., 269.)

An exception was taken to the ruling of the court sustaining an objection to a question put to the witness Ferris, an attorney of this court, calling for a communication made to him by the plaintiff. The objection was put upon the ground that the communication was privileged. ’ Mr. Ferris testified that he was the attorney of reccfrd in the judgments in favor of the plaintiff, the defendant and Taylor against Dorman. He had a talk with his clients shortly before the sale in May, 1876. In the fall of 1877 he wrote to the plaintiff to come and pay his costs, and on his coming he had the conversation with him 'which the defendant’s counsel sought to prove. The witness testified that he asked the plaintiff why he, the defendant, and Taylor did not buy the goods as it was talked when witness was there. The defendant sought to prove what answer the plaintiff made to that question. He also offered to prove what the plaintiff said on the subject of getting his pay from the judgment debtor, and as to whether he had any security for the payment of his judgment' other than the obligation of the judgment debtor. These several offers were excluded. The witness when asked as to whether he talked with the plaintiff as counsel, on the occasion to which the questions referred, answered, “ I don’t know what you might call it.” "We think there was no error in the rulings. The communications called for were in regal'd to what the plaintiff had done about a matter in respect to which he had taken the witness’ advice; they related to the subject in respect to which the previously existing relation of attorney and client was formed, and the occasion of ■ making them arose out of such relation. It may fairly be said that the communications were induced by-the fact of such relationship, and consequently were privileged. (Bacon v. Frisbie, 80 N. Y., 394.)

These views lead to the conclusion that the motion for a new trial should be denied and judgment ordered for the plaintiff on the verdict.

Barker and Haight, JJ., concurred; Bradley, J., not sitting.

New trial'denied and judgment ordered for the plaintiff on the verdict.