text:
    Henry W. Bowman, Assignee, Pl’ff, v. Augustus Hoffman and William C. Pate, Rec’r, Def’ts.
    (New York Common Pleas, Equity Term,

      Filed August 4, 1892.)

    Pled an—Limitation .
    Where the debt is payable on demand and no time for redemption is fixed, the statute of limitation does not run until a demand is made or action to foreclose the lien is commenced.
    Motion by the defendant Pate, as receiver, to dismiss the complaint. Action to foreclose a lien upon a chattel. The other' facts are stated in the opinion.

      Halcyon M. Close, for pl’ff, opposed; C. E. Souther, for def’t Pate, rec’r, and motion.
   Giegerich, J.

—This action is brought by the assignee of one Louis R Monger to foreclose a lien on an oil painting, entitled Niagara,” which is alleged to have been pledged by the defendant Hoffman to secure the payment of a debt, on demand, owing by said defendant Hoffman to said Monger for work and materials furnished and money loaned by said Monger to defendant Hoffman between the 20th day of August, 1869, and the 27th day of November, 1878. The complaint further alleges that, on or about the 15th day of January, 1885, the said Menger made an assignment to the plaintiff of all his property and assets, including the-debt mentioned and the security pledged therefor, for the Benefit, of creditors; that, on or about the 14th day of March, 1889, the plaintiff recovered judgment against the defendant Hoffman in this court for the above mentioned, demand ; that an execution was issued to the sheriff and returned wholly unsatisfied ; that, on- or about the 28th day of July, 1890, the defendant Pate was, by an order of the supreme court, duly appointed as the receiver in, supplementary proceedings of all the property of the said defendant Hoffman, and thereafter this court, by its order, extended the receivership of the defendant Pate to supplementary proceedings, •upon it; and that, on or about the 27th day of October, 1890, in proceedings had for the purpose, the supreme court granted leave-to the plaintiff to sue the defendant Pate as receiver and to bring this action.

The defendant Pate, as such receiver, by his answer, among other things, -interposes two defenses of the statute of limitations, namely: “Second. That the. causé of action therein stated did not accrue within six years before the commencement of this action. Third. That the cause of action therein stated did not accrue within ten years before the commencement of this action.” Upon questions of fact raised by the pleadings issues were framed by an order in this action dated January 20, 1892, by which it is-provided that in case the complaint be not dismissed upon the issues of law raised by the second and third defenses stated in the answer thereto of the defendant Pate, the questions of fact annexed to said order be submitted to a jury, and their verdict had thereupon.

By the pledge of the chattel as security for the debt, the title-of the chattel did not pass to the pledgee. The title remained in the pledgor until it was divested by a sale upon notice, or by judicial proceeding. Markham v. Jaudon, 41 N. Y., 235; Stearns v. Marsh, 4 Denio, 230; Brownell v. Hawkins, 4 Barb., 491; Gruman v. Smith, 81 N. Y., 25; Bailey v. Drew, 17 St. Rep., 185.

The special property of Menger in the painting passed to the plaintiff on the assignment by said Menger to the plaintiff of all his property for the benefit of his creditors. The fact that the receiver of the property of the defendant Hoffman, appointed on the application of another creditor, was extended so that the receivership would include the judgment obtained by the plaintiff,, did not affect his right to hold the security until the debt wms paid. Pate v. Hoffman, 40 St. Rep., 915; 16 N. Y. Supp., 74. The right of plaintiff to hold possession of the property upon which he had a lien was not affected by the recovery of the judgment for the amount of the indebtedness to secure the payment of which he held the property as security. Pate v. Hoffman, supra; Lincoln v. Linde, 27 Abb. N. C., 278.

The defendant Pate, as receiver, urges that the lien has been barred by the statute of limitations; but, considering this cas& in the light of the authorities hereinafter cited, I am of the opinion that the cause of action did not accrue until the filing of the complaint Chancellor Kent defines the rights of»the parties to a, pledge, particularly as to the sale and redemption, thereof, as follows: “ The general property does not pass, as in the case of a. mortgage, and the pawnee has only a special property. If no time of redemption be fixed by the contract, the pawnor may redeem at any time, and though a day of payment be fixed he may redeem after the day. lie has his whole lifetime to redeem provided the pavonee does not call upon him to redeem, as he has a right to do at any tim.e in his discretion if no time for redemption be fixed, and if no such call be made. the representatives of the pawnor may redeem after his death. As early "as the time of Grlanville, these just und plain principles of the law of pledges were essentially recognized; it was declared that if the pledge was not redeemed by the time appointed, the creditor might take recourse to the law and compel the pawnor to redeem by a given day or be forever foreclosed and barred of his right- And if no time of redemption was fixed, the creditor might call upon the debtor at any time by legal process to redeem or lose his pledge.” 4 Kent’s Com., 13th ed., 138.

Roberts v. Sykes, 30 Barb., 173, was an equitable action, brought by the pledgor against the personal representatives of the pledgee for the redemption and reassignment of the stock pledged as security for the payment of a note. The defense set up in the answer was the statute of limitations. Sutherland, J., held that the action was barred by the statute of limitations as it was not brought within ten years from the time the note became due. The foregoing case is distinguishable from the one at bar. In that case the time for the redemption- of the pledge was fixed by the contract between the parties, but in this case the debt was payable on demand, and no time of redemption was fixed.

The above mentioned case of Roberts v. Sykes must, however,, be considered as overruled by all reported cases arising subsequent thereto in this state, and in Bailey v. Drew, supra, Ingraham, J., expressly held that the same must be considered as overruled by Miner v. Beekman, 50 N. Y., 343.

In Purdy v. Sistare, 2 Hun, 126, the plaintiff delivered certain bonds to the defendant, who advanced a sum of money thereon. On the defendant’s refusal to render an account, the plaintiff" brought an action for an accounting, in which the defendant interposed the defense of the statute of limitations, and it was held that the defense was properly overruled; that the pledge of the bonds with the power of sale created a direct trust, and that in-such cases the statute does not begin to run as a general rule unless there be an open denial or repudiation of the trust, or some-notice of an adverse claim.

In Roberts v. Berdell, 15 Abb., N. S., 183, the loan for the payment of winch certain bonds had been pledged had been paid-more than six years before the commencement of the action, but the demand for the return of the bonds and the refusal of the pledgee to comply was within the sixth year. It was held by the court of appeals that the cause of action was not barred until six years after the formal demand and refusal, although the payment and previous request for return of the pledge took place more than six years before the action was brought.

Bailey v. Drew, supra, was an action by the assignee of the pledgor for an accounting. The defendant pleaded the statute of limitations, and it was held that the right to invoke the aid of a court of equity to ascertain the amdunt due upon an obligation secured by the pledge of personal property was a continuing right, and continues as long as the right to redeem exists'; that the cause of action does not depend upon the rights of the parties as they existed at the time of the pledge, but depends upon the right of the pledgor to redeem at the time the bill was filed, and the cause •of action upon which such bill is founded accrues not when the •collateral security was first pledged, but when the right to redeem was first insisted upon, namely, upon the filing of the bill, and that the statute of limitations was no bar to the action.

It follows that the statute of limitations had not run against the action when it was commenced.

The "motion to dismiss the complaint upon the issues of law raised by the second and third defenses in the answer of the defendant Pate, as receiver, is, therefore, denied, and the questions ■of fact annexed to the order herein of January 20, 1892, are, in conformity therewith, directed to be submitted to a jury and their verdict had thereupon.


source: Caselaw Access Project

author: Barnard, P. J.

license: Public Domain

text:
    David Patton et al., Resp’ts, v. Maurice E. Townsend et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Foreclosure—Parties.
    The complaint in an action of foreclosure alleged that defendant M. gave a mortgage to induce plaintiffs to give credit to a firm of which he was a member with E.; that the firm gave notes and a draft for an open account and further notes upon which R. and S. were endorsers, and which were protested for non-payment. Held, that a cause of action was stated against all the defendants, as M. and E. were personally liable for the •debt and R. and S., the endorsers, were proper parties, because they are ■liable for the payment of the debt, or some part thereof, secured by the mortgage.
    Appeal from order overruling demurrer to the complaint and •from the interlocutory judgment entered thereon.
    Action of foreclosure.

      Mortimer S. Brown, for app’lts; Jos. A. Burr, Jr., for resp’ts.
   Barnard, P. J.

—The complaint alleges that Maurice B. Townsend and Edward N. Townsend, together with John P. McEwan, were on the 18th of January, 1889, partners in the lumber business. That Maurice E. Townsend gave the mortgage in question to induce the plaintiffs to give credit to the firm on lumber and to secure payment of any balance due the plaintiff on the 1st of April, 1890. That on the 1st of January, 1890, the debt was $17,711.72, represented by two notes of $5,000 each and an open account for the balance. That at that date Maurice E. Townsend and Edward N. Townsend were the sole partners, having assumed .all the debts of McEwan & Co., and they applied for an extension of credit on their debt. That it was agreed to change the form of the debt. Maurice E. Townsend and Edward H. Townsend gave .a draft for $3,500 and their promissory note for $4,284.64, endorsed by the defendants Solomon Townsend and Robert Townsend. That these sums represented the open account of McEwan -& Co. That provision was made for renewal of the three notes upon certain payments and that the mortgage should remain as .security for the entire debt. That further credit was given to the partners Townsend, and Robert and Solomon Townsend endorsed the notes. That the notes were protested for non-payment. The •complaint clearly shows a mortgage given by Maurice E. Townsend to secure the plaintiffs for goods sold a firm of which he was a member. That the. debt is unpaid and that Solomon Townsend and Robert Townsend are endorsers upon notes given for a portion of the debt. A good cause of action is set forth against Maurice E. Townsend and Edward N. Townsend, as they are personally liable for the debt secured by the mortgage. The endorsers >on their notes, Solomon Townsend and Robert Townsend, are proper parties because they are liable to the plaintiffs for the payment of the debt, or some part of it, secured by the mortgage. Code of Civil Procedure, § 1627.

The order overruling the demurrer and interlocutory judgment ¡therein should be affirmed, with costs.

Cullen, J., concurs; Dykman, J., not sitting.


author: Barnard, P J.

text:
    In the Matter of the Probate of the Will of Christian Ziegler, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Will—Testamentary capacity—-Delusion.
    Due execution of tlie will was proved, and testator was shown to be a man of good judgment and testamentary capacity, the only objection thereto being that he said that F., to whom he left nothing, was not his son. It was shown that he had acknowledged F. as his son, but at the time of making his last will said he had heard that F. had threatened to make trouble after his death, and that he was not related to him in any way. Held, that such acknowledgment was consistent with F.’s being an adopted son, and that testator was not shown to be deluded as to the fact of his having a son,
    Appeal by Francis C. Ziegler and Lillie Ziegler from decree of the surrogate of Queens county admitting the will to probate.

      Ernest Hall, for Francis C. Ziegler, app’lt; E. J. Knauer, special guardian for Lillie Ziegler, app’lt; E. B. & W. J. Amend (E. I. Spink and R. M. Martin, of counsel), for resp’ts.
   Barnard, P J.

—Christian Ziegler died in September, 1889, in Queens county. He made a will in May, 1889, which was admitted to probate by the'surrogate of Queens county, and this appeal is brought from the order sustaining the will.. The testator left the bulk of his property to three nieces of his wife, who had been brought up and treated as adopted daughters by him. The deceased left a son, his only child and heir at law, to whom he gave nothing by the will. The proponents make an issue as to the fact whether this son was in fact the son of testator, or had been taken from a charitable institute in infancy. The testator’swill does not depend upon this question, but upon his being of sound mind and memory and free from restraint when he executed the paper. Judged by the rules applicable to wills, the papers-prepared were executed by the deceased in the presence of three witnesses, and there is not the slightest reason to doubt the execution of the will according to legal form and by a person capable-of making a will. The history of the life of deceased, ás given by the testimony, does not show any support to a charge of incapacity, other than is implied from the evidence given tending to show that testator said he had no son. The testator had made-a will in favor of the proponents in 1883, and he then called them his children.

The present will was only made to sever certain portions of the-real estate so that each child should hold in severalty. The case is a very strong one to establish that the contestant, Francis C. Ziegler, was not the real son of the testator, but was adopted. The proof of the acknowledgment of him as a son is entirely consistent, with his being an adopted child. The declaration of the testator at. the execution of the first will that the nieces were called his children,, and at the execution of the last will that he had heard that Frank had threatened to make trouble after the testator’s death, and that he was not related to him in any way, are conclusive to me that. Frank C. Ziegler was an adopted son. The testator was a man of good judgment, and his life was so sane in all other respects that it would be a violent conclusion in view of the evidence in the case that he was ignorant or deluded as to the fact of his having a son. . - - .

The testator was capable of making a will, and the order should be affirmed, with costs.

Cullen, J., concurs.


author: Cullen, J.

text:
    The People ex rel. Esther J. Griffin, Resp’t, v. Hilyer Ryder, County Treasurer, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Constitutional law—Partition—Code Crv. Pro., § 1583.
    Section 1583 of the Code, as amended in 1891, providing for the distribution of moneys deposited in a partition suit to the credit of unknown-heirs after the lapse of twenty-five years, is unconstitutional, in that it empowers the court to determine the rights of known heirs, although they may not have been parties to the suit, without notice, and in providing for distribution among the known heirs. " their heirs and assigns- and not next of kin, distributees or representatives,” as the heir who was an adult at the time of the sale would take his share as pefsonalty and not realty, and his next of kin or devisee have a vested interest therein of which the legislature could not divest them.
    Appeal from order directing the issuance of a writ of mandamus to the county treasurer.

      Clayton Ryder, for app’lt; Abram J. Miller, for resp’t.
   Cullen, J.

—This is an appeal'from an order directing a writ of mandamus to issue to the appellant commanding him to pay over moneys deposited in a partition suit to the credit of unknown heirs in accordance with a decree of distribution under § 1582, Code of Civil Procedure.

There had been made a previous decree of distribution under this section as it stood in 1890. The appellant refused to comply with it, and was upheld in his refusal by the court of appeals, 124 N. Y., 500; 36 St. Rep., 468, which held the provisions of this section unconstitutional and void. This section and § 841, Code, were amended in 1891 (chaps. 364 and 365), and thereupon a new proceeding was instituted and another order of distribution made. The appellant refuses compliance, contending that the provisions of § 1582 are still invalid.

We believe that it is within the power of the legislature in the case of an unclaimed deposit of this character, to .enact that from the lapse of time and failure of any person to appear and make claim it shall be presumed that an unknown was a non-existing class at the time of the decree, and to provide by appropriate proceeding for a distribution of the fund among the persons .who would have been entitled to it if there had been no such unknown persons, if reasonable notice be provided for, and an opportunity be afforded to all persons in interest to appear and protect their rights.

But we think that there are two fatal objections to the validity of the proceedings authorized by the section named. Two classes of persons are described; the unknown heirs and the known heirs. Known heirs are those persons who are known, and whose right to inherit, or the extent of whose right to inherit, is dependent on the non-existence of other persons nearer or as near to the ancestor in the line of descent. In default of appearance by any unknown heir, the court is to order a distribution among the known “heirs, their heirs or assigns, and not next of kin, distributees or representatives * * * of the respective shares or portions of ■or interest in such proceeds to which they are entitled.”

The order or decree therefore determines the rights of the known heirs among themselves. The statute provides for notice of the application to the unknown heirs by publication, but no notice whatever upon the known heirs or their successors in interest is provided for. It is entirely possible that such known heirs may not have been parties to the original suit, and certainly the judgment in partition .did not and could not determine the rights even of the parties to it in the share deposited. The legislature could not empower the court to adjudicate the rights of these persons in any proceeding of which they are to be given no notice .and to which they are not parties. The importance of notice appears in this very case, when we consider the second objection to this statute, the parties among whom it provides the distribution is to be made.

By the statute the distribution is to be to the known heirs, their heirs and assigns, and not to the next of kin, distributees or representatives. ' The only theory on which this proceeding in its main scope and object can be considered a valid exercise of legislative power is, that the known heirs were as a matter of fact and law, at the time of the judgment and sale, entitled to the share deposited ; that the judgment awarded the share to a class of persons which did not exist in consequence of ignorance of such nonexistence, and failed to award to the known heirs what was really their own; that now lapse of time, and the non-appearance of any such class of unknown persons, has proved the fact which did not, then appear, and by the decree of distribution the error of fact in the original judgment is corrected.

Therefore, the interest of any known heir in this fund was his-property and upon his death passed like other property, according to its nature whether real or personal, -either by will or by the-statutes of distribution or descent, and the title of his succéssorsin interest could not be divested by the legislature. If such interest was land, then it would pass by will to the devisees. But this statute directs that it shall be paid to the heir or assignee and creates a quasi estate-tail during the time of the deposit, subject-possibly to be defeated by assignment. The only way to avoid, this objection would be to construe assignee as including devisee. This is not, however, the theory on which the special term proceeded. In the order of distribution- it is recited as to some of the original heirs that they died intestate, but as to the others-merely that they died leaving certain heirs, and the distribution is-to such heirs. But the shares in this fund of the known heiis who were adults at the time of the judgment and sale were not in law realty, but personalty. Sweezy v. Thayer, 1 Duer, 286, opinion 308.

It may be that as to sales subsequent to the statute, or even, where the death of one of the original heirs was subsequent to that time, the legislature could make a rule for the succession upon death of property of this character, sui generis and applicable to such property alone. But surely it cannot divest the next of kin or the devisee of property thitherto vested in them.

The order appealed from should be reversed and the application denied, with fifty dollars costs and disbursements.

Barnard, P. J., concurs; Dykman, J., not sitting.


text:
    John C. Anderson, Resp’t, v. Walter S. Carr et al., Def’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    1. Judgment—Jubisdiction.
    In an action to establish the validity of a will one of the defendants consented to judgment against him, and he was perpetually enj ined from impeaching the will or making claim in contravention therewith. The case-proceeded and the court of appeals held that it would not lie and dismissed it as to the other defendants. In a proceeding against said defendant’s attorney for contempt in violating said injunction, Held,, that notwithstanding such decision of the appellate court, and the fact that the complaint did not state a case for equitable relief, the court had jurisdiction, to render the judgment by consent, and that it could not be collaterally assailed.
    2. Same—Injunction.
    If the judgment in granting an injunction went beyond the relief demanded in the complaint defendant’s remedy was by motion to amend the-judgment; but the injunction must be respected until it is set aside.

      Appeal from order adjudging John J. Leary, attorney for Walter S. Carr, guilty of contempt.

      John J. Leary, app’lt, in person; Thomas M. North and William B. Hornblower, for resp’t.
   Cullen, J.

—This action was brought to establish the validity of the will of John Anderson. The defendant Carr demurred; the defendant Watson answered. The plaintiff compromised' with the defendant Watson, and as a condition of the settlement the defendant Carr withdrew his demurrer and consented that judgment be entered against him for the relief demanded in the complaint. Judgment was thereupon entered declaring the will valid, and the defendants were perpetually enjoined from impeaching the will or making any claim in contravention thereof. Subsequently Watson, by the appellant as his attorney, brought an action in ejectment to recover certain premises devised by the-will. The appellant was adjudged guilty of contempt in continuing to prosecute the action. From such order this appeal is taken.

But two questions are raised on the appeal. The first is, that the court had no jurisdiction to render the judgment, and hence the judgment is void. In Anderson v. Anderson, 112 N. Y., 104; 20 St. Rep., 344, the court of appeals held that this action would not lie, and as to the other defendants, who resisted the suit, the action was dismissed. The court held that equity had not jurisdiction of a suit to establish a will, but that the devisee must wait, till his title is attacked. On this decision the contention is made that the judgment herein, even though entered by consent, is void.

We think that the decision of the court of appeals does not go to that extent. Doubtless had the defendants not compromised, and had carried their defense to the highest tribunal, the judgment would have been in their favor instead of against them. But in this position these litigants are not singular. The reports are full of such cases. The question is not whether the judgment was erroneous, but whether it is void. We think the judgment was in the power of the court to make.

Bills quia timet and to restrain suits at law have always been entertained by courts of equity alone. That the bill here did not state a case for equitable relief does not affect the jurisdiction of the court any more than a faulty complaint in an action at law. The court of appeals did hold that the case did not fall within the equity jurisdiction as it exists in this state, but it did not hold that the supreme court had not power to entertain such an action and determine whether it would or would not lie. There are different senses in which the word “ jurisdiction ” is employed. When “equity jurisdiction” is spoken of, there is not meant the power of the court to try the dispute in the sense that a county court cannot try an action in ejectment or a state court offenses against the federal government, but the question whether the-action in equity will lie. Bangs v. Duckinfield, 18 N. Y., 595; Fisher v. Hepburn, 48 id., 51.

When it was contended before Lord Mansfield first that the-king’s bench had no jurisdiction of the suit, and then that no ■other court had jurisdiction, he answered: “When you say that no court has jurisdiction of a controversy, what is that more than saying no action will lie.”

The plaintiff thought he .could maintain this action. He was wrong, but he had a right to be wrong. He submitted his claim to the court which had general jurisdiction in law and in equity. It is not pretended t|iat there is any other tribunal before which the plaintiff should have brought his suit. If the question was a proper one for litigation there must be some court in which the -question could be litigated,-and a judgment rendered in such a litigation, while unreversed, must, though erroneous, stand on the same footing as any other judgment not subject to collateral attack.

It is also urged that the judgment in granting an injunction went beyond the relief demanded in the complaint. If this be so, the defendant’s remedy is by motion to amend the judgment. The injunction must be respected until it is set aside.

The order appealed from should be affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


author: Dykman, J.

text:
    The Williamsburgh Savings Bank, Resp’t, v. The Town of Solon, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    1. Town bonds—Validity.
    The bonds in question, issued by the defendant in aid of the Utica, Chenango & Cortland Railroad, are valid and binding obligations.

      (Town of Solon y. Williamsburgh Savings Bank, 114 Ñ. Y., 122: 23-St. Rep., 138, followed.)
    2. Same—Ineteest.
    Town bond coupons are promissory notes, although detached from the bonds to which they refer, and interest maybe recovered in an action upon them.
    .Appeal from judgment-in favor of plaintiff, entered upon verdict directed by the court.

      Bouton & Champlin, for app’lt; E. B. Thomas, for resp’t.
   Dykman, J.

—This is an action based upon certain coupons detached from bonds of the town of Solon, made and issued in obedience to the provisions of chapter 907 of the Laws of 1869.

The bonds were executed in aid of the Utica, Chenango & Cortland Railroad Company, and delivered to that corporation in exchange for its stock. They were dated September 1, 1870, and the plaintiff became the owner of several of them, amounting in value to $16,000, in the year 1875.

When the cause came on at the circuit, the counsel for the parties stipulated that the trial should be had before the judge without a jury, and be disposed of at the conclusion of the evidence as though a jury was present, and that a verdict should be directed by the court.

That stipulation was equivalent to a request by both parties for a direction of a verdict, and, under well settled principles, constituted and amounted to an admission that only questions of law were involved, and that there were no disputed or controverted questions of fact in the case.

At the close of the trial the court directed a verdict in favor of the plaintiff for $8,960 for the principal or face of the coupons, and $4,244:52 for interest thereon, making the total amount of the verdict $13,204.52.

From the judgment entered upon that verdict the defendant appealed to the general term, but there was no motion for a new trial upon the minutes of the court, no order denying such motion, and no appeal from any such order.

It is thus rendered plain that this appeal involves the examination of questions of law only.

The interest upon all the bonds was paid from the time of their issuance until the year 1877, and in June, 1881, an action in equity was commenced by the town of Solon against the Williamsburgh Savings Bank to procure the nullification and cancellation and surrender of the bonds held by it. That action proceeded upon substantially the same grounds as the defense to this, and it was tried at the special term and decided in favor of the plaintiff.

From the judgment entered upon that decision in February, 1883, the defendant appealed to the general term in the fourth department, and the judgment was reversed, and a new trial was granted. The order for that new trial was entered in January, 1885.

In the able and exhaustive opinion of the court upon that appeal prepared by Judge Follett, all the questions were fully examined and decided adversely to the contention of the town. Town of Solon v. The Williamsburgh Savings Bank, 35 Hun, 1.

Then the cause was retried and decided in favor of the bank, and from that judgment the town appealed to the general term, where the judgment was affirmed upon the opinion of Judge Follett, delivered on the former appeal. 47 Hun, 632.

The town appealed to the court of appeals, where the judgment was affirmed. 114 N. Y., 122; 23 St. Rep., 138.

There again the questions were fully examined and decided in favor of the bank, and the opinion 'of the court prepared by Judge Bradley leaves nothing requiring further consideration, and the two opinions referred to are decisive of this appeal.

A new examination could only proceed upon the same lines, and over the same ground, and is therefore unnecessary.

The force and effect of those opinions will not be augmented by the contribution of our approval, but they have our concurrence, and we consider them conclusive.

The point respecting the interest upon the coupons was not and could not be examined in the former cases, and therefore requires our determination.

The question is by no means free from embarrassment. The coupons are alike, except in their time of payment, and this is their form": “ $17.50. The town of Solon will pay to bearer at the National Park Bank of New York, seventeen 50-100 dollars on the first day of September, 1889, being six months interest on bond No. —.”

It appears therefore distinctly upon the face' of the instruments that they are for the payment of interest, and it is now settled law in this state that compound interest can only be recovered upon some new and independent agreement for its payment. Young v. Hill, 67 N. Y., 162.

At the same time it is to be conceded that these instruments partake largely of the character of commercial paper. They are promises to pay money at a specified time and place to the bearer, and are therefore negotiable and transferable by delivery.

Such instruments have been held to be promissory notes, although detached from the bonds to which they refer. Evertson v. National Bank of Newport, 66 N. Y., 18.

We have concluded, therefore, to affirm the judgment upon this point also and allow the question to be presented to the court of appeals for determination with the others.

The judgment should be affirmed, with costs.

Barnard, P. J., and Cullen, J., concur.


text:
    John Christ Rocker et al., Resp’ts, v. Hulda Wildfoerster, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Pleading—Amendment on reference—Harmless error.
    A judgment entered upon the report of a referee will not be reversed because the plaintiff was allowed to amend by adding an additional item of work, although the motion to amend was not decided until the final decision of the case, where the defendant was allowed to introduce her evidence as to this additional item and the case shows that plaintiff was entitled to it.
    Appeal from judgment in favor of plaintiffs, entered upon report of a referee.

      Hays & Greenbaum, for app’lt; B. J. Pink, for resp’ts.
   Cullen, J.

—This is an appeal from a judgment entered upon the report of a referee. The action is to recover a balance of contract price and for extra work in building a house. The case presents merely a question of fact arising out of disputes as to the several items of work. Certainly there is no such preponderance of evidence as to any item as to require or justify us in reversing the findings of the referee.

It is claimed that the referee erred in permitting the plaintiffs to amend the complaint by adding an additional item of extra work. The motion to amend was made at the close of the plaintiffs’ case. Decision thereon was reversed and the motion granted only at the final decision of the case. The referee doubtless should have disposed of the application before the defendant entered upon her defense. This practice of reserving decisions on such applications or questions of evidence until the final decision is not to be commended. But no harm was done in this case. The defendant adduced her evidence as to this additional item, and the case showed that the plaintiffs were clearly entitled to it.

The judgment appealed from should be affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


text:
    James I. Healey et al., Resp’ts, v. Moritz Bauer, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Evidence—Book entkies.
    In an action for work, labor and services, entries in the plaintiffs’ books of account made by a deceased employee some months after the work is claimed to have been done, and shortly before the action was commenced, are inadmissible.
    Appeal from judgment in favor of plaintiffs, entered upon report of a referee.

      Maurice Untermeyer, for app’lt; Francis C. Devlin, for resp’ts.
   Barnard, P. J.

—The plaintiff seeks to recover of the defendant for work and labor and materials furnished -by him to the defendant at his request. The proof tended to establish the fact that Bauer sold a lot of land to one Emench and took a mortgage back for the whole purchase money ; that Emench started to erect houses on the land and, before they were completed, re-conveyed the property to defendant. The plaintiff produced evidence tending to show that the defendant at the reconveyance and as part of the consideration promised to pay the plaintiff for that- portion of the work done before the conveyance by Emench to defendant. The defendant denied this statement. The plaintiff produced a book in which an entry was made by Mr. Roberts, a deceased employee of plaintiff. The book was a journal in which the plaintiff made his charges for work done and materials furnished. The book was received in evidence against the objection and exception of the defendant, and there was read from it as follows:

“ Brooklyn, Jany. 20th, 1882.

“ Mr. Bauer, iron work for houses on 86th st, iron work as per contract for stores corner of Third avenue, 69th and 70th sts., $4,000. Extra work for Third ave., 69th and 70th sts., as follows : Extra vault light in front, $784; extra railing on two walls, $252; extra railing on two gable ends, $24; extra window guards, two gable ends, $68 ; extra cellar door bars, $18 ; extra drilling columns, and other work, $4; extra door saddles, $36. Total, $5,577. By flue rings and covers not finished, $21. $5,456.’’

The evidence showed that one of the defendants’ counsel asked the plaintiff to produce the book, and he examined it before it was offered in evidence. The evidence was improperly received. Smith v. Bentz, 42 St. Rep., 879.

The entry was not made in the book until shortly before the action was commenced, and some months after the work was done.

The judgment should therefore be reversed and a new trial granted, costs to abide event.

Cullen, J., concurs; Dykman, J., not sitting.


text:
    Elizabeth McCauley, Pl’ff, v. Abram S. Smith et al., Def’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Master, and servant—Negligence.
    Plaintiff’s intestate was employed by defendants to work for them, and on the following morning went there to commence. The porter opened the trap door of a hoistway which was so arranged that when the trapdoors were down the outer doors could not be opened, and the intestate while getting his overalls from a pile of wool which lay on the closed portion of the trap-door fell down the hoistway and was killed. It was a dark morning, and there was no gas light near the hole, nor any railing around it. Held, that a case was made for the. jury, and it was error to dismiss the complaint.
    Exceptions ordered heard at the general term in the first instance after dismissal of the complaint

      Charles J. Patterson, for pl’ff; Hubbard & Rushmore and John D. Pray, for def’ts.
   Barnard, P. J.

—The defendants kept a storage warehouse in New York city under the arches of the New York and Brooklyn bridge. The plaintiff’s intestate was an employee of the deféndants, and on the 7th of January, 1891, fell into an open hoistway upon the premises of the defendants, and was killed. The deceased had been employed the night before and had left his overalls on a pile of wool in the building. In the morning the defendants’ porter, after his arrival to go to work, was told to go up stairs to be undressed ready for work. The porter then went to open the doors. The hoistway in question is near these (rear) doors, and the trap-doors which cover the hoistway are so made that when closed they prevent doors from opening. The porter lifted the trap-doors one-half at a time. The wool was on the half which was not raised. The overalls were on the pile of wool standing on the part of the latch not lifted. At this stage of the proceedings the deceased fell through the opening. It was a dark morning, and there was no gas light near the hole; there was no railing around it. A case was made to go to the jury. The master was bound by law, chapter 566, Laws of 1887, to protect the opening by a substantial railing or with good and sufficient trap-doors,, such railing and trap doors to be kept closed at all times except when in actual use. The employee had the right to assume that the master had done his duty, and it is subject to the performance of the master’s duty that the employee assumes the risks of the employment. The hoistway was not in actual use, but was opened only to permit the doors of the building to be opened; presumably on the night before there was no appearance of danger. It was for the jury to say if the protection required by the statute was given. The question of the negligence of the deceased was one for the jury, if the master was guilty of negligence which caused the accident. This is the general rule unless the evidence is very plain. In this case there was evidence from which a jury could find the deceased to have been free from all lack of care and prudence in protecting himself from injury.

The exceptions should be sustained and a new trial granted, costs to abide event.

Dykman, J., concurs; Cullen, J., nor sitting.


author: Andrews, J.

text:
    The People, Pl’ffs, v. Charlotte Ewer, Def't.

      (Supreme Court, Chambers,

      Filed July 21, 1892.)

    Children—Public exhibition of—Penal Code, § 292.
    Section 292 of the Penal Code, which prohibits the employment' or exhibition of a child under fourteen as a dancer, is not unconstitutional as infringing on the rights of parents or those of the child.
    Defendant was arrested for permitting her daughter, Mildred Ewer, known as “ La Regaloncita,” aged seven years, to appear as a dancer on the .stage, and obtained writs of habeas corpus and certiorari, on the ground that § 292 of the Penal Code, under which she was held, was unconstitutional. The People moved to dismiss the writs.

      Elbridge T. Gerry, for pl’ffs; A. J. Dittenhoefer, for def’t.
   Andrews, J.

—Section 292 of the Penal Code provides, among" other things, that a person who, having the care, custody or control of a female child, under the age of fourteen years, as parent, procures or consents to the employment or exhibition of such child as a dancer, is guilty of a misdemeanor. The defendant, who is the mother of an infant girl, seven years of age, was arrested upon a charge of having violated this statute, and having waived an examination was held for trial, and the question of the legality of her commitment is now brought before this court by writs of habeas corpus and certiorari. The sole ground upon which it is claimed that the defendant should be discharged is that the above-cited provisions of the Penal Code are unconstitutional. The first contention is that said provisions of the Penal Code are unconstitutional, because they infringe upon a parent’s right to the-custody and services of his child. It is conceded that for reasons-which concern both the state and the children themselves, the legislature has the power to prevent parents from employing their children, or permitting them to be employed, in any indecent or immoral exhibition or practice, or in any practice or exhibition dangerous or injurious to the life, limb, health or morals of the-children. Indeed, in view of the various laws passed for the protection of children against the acts of their parents, by this state, and by every other civilized state in the world, and the validity of which has never been questioned, the learned counsel for the-defendant could not well avoid making this concession. But,, says counsel, the legislature cannot go further and take from the-parent the right to employ a child in a lawful occupation, not indecent or immoral, and not dangerous or injurious to the life, limb, health or morals of the child; and while the nightly, exhbbition of very young girls as dancers, in public theatres, concert balls and dance houses may, in many cases, be injurious to their health or morals, nevertheless, in this particular case, the nightly exhibition by the defendant of her little girl as a dancer in a separate piece, performed in a respectable theater, could not injure the health or morals of the child; and, therefore, the above cited provisions of the Penal Code, which forbid the mother to permit such exhibition, are unconstitutional.

It seems to me that the mere statement of this argument is a refutation of it. But, to go further: in the first place, counsel assumes, without a particle of evidence, that the defendant’s child, which is of the age of seven years, will not be injured in health or morals by being continuously exhibited as a dancer; and as this assumption is wholly unwarranted, the argument, which rests entirely upon it, necessarily falls to the ground. -But, assuming that in this present case, and in some other cases, young girls may be exhibited as dancers without injury to their health or morals, that fact does not tend to establish that the act in question is unconstitutional. The legislature is vested with .the entire police power possessed by the people of this state, and it having determined that it is for the best interest of the state, ánd of young girls, that they should not be exhibited as dancers before they reach the age of fourteen years, it decision is final, and is not subject to review by the courts, upon the ground that the law infringes upon the rights of parents in some particular cases.

It is said that the statute is a violation of this liberty secured to the infant by the constitution; in other words, that, in the present case, a female child, of the age of seven years, has a constitutional right to exhibit herself as a dancer. This claim seems to me to have no foundation whatever. In this state, and in every civilized community, children are under many liabilities. In most jurisdictions they, cannot make contracts, their earnings belong to their parents, to whom also they must render obedience ; they cannot marry before certain ages, they are not allowed to purchase intoxicating liquors, nor to attend theatres except in company with adults, and the male infant is not allowed to vote until he reaches the age of twenty-one years. In view of these, and many other restrictions, which have been imposed upon the “ liberties ” of infants, it is certainly a most extraordinary doctrine, and one which finds no support in our constitution; that ¿iris of the age of seven years have an inalienable right to publicly exhibit themselves as dancers, of which they cannot be deprived by an act of the -legislature.

Various cases are referred to by defendant’s counsel, but they lend no support to the views set forth in his brief. All that was decided in those cases was that the legislature could not, under pretence of protecting the health or morals of the community, prevent the carrying on of particular kinds of business in certain places, or the manufacturing of certain articles. In the case at bar no such question can arise, for 'there can be no question but, that the above cited provisions of the Penal Code were adopted toy the legislature in good faith, with the sole purpose of protecting the health and morals of children.

The writs of habeas corpus and certiorari must be dismissed.


author: McAdam, J.

text:
    Minna Knoch, Pl’ff, v. Louis Funke, Def't.

      (New York Superior Court, Special Term,

      Filed May 31, 1892.)

    Abatement and bevtvob—Sectjbity fob costs.
    The right to continue a suit in equity, under § 757 of the Code-, is not absolute and unqualified, but must be determined according to settled-equitable considerations, and the court, in the exercise of its equitable: jurisdiction, has power to attach the condition that the plaintiff give security for costs.
    Motion for reargument of application to revive suit in equity.

      E. Grosse, for motion; Austin Abbott, opposed.
   McAdam, J.

—The court, upon application of the plaintiff, made an order reviving the action against the executrix of the defendant “upon condition that the plaintiff file security for costs.” The plaintiff moves to reargue the motion upon the ground that the condition imposed was unauthorized and in conflict with the decision of the supreme court in Sullivan v. Remington S. M. Co., 27 Hun, 270; S. C., 2 Civ. Pro., 68, and that this court should follow the rule laid down in that case, or give some reason for not doing so.

The Code provision (§ 757) that the court “ must upon mo- ' tian ” allow the action to be continued, merely means that in a. proper case the relief shall be granted. It does not mean that-the court must unconditionally grant every application to revive that is presented. If that were intended no motion would be required; it would be sufficient to file a suggestion and go on as at common law. The very object of requiring a motion is to preserve the inherent power of the court, merely simplifying and facilitating the mode of its exercise.

The practice of requiring security for costs (like that of allowing persons to- sue in forma pauperis) originated in the equitable doctrines of the court of chancery controlling its own process and proceedings for the purpose of doing justice and preventing injustice.

It was adopted by the late supreme court of this state by rule 14, January, 1799. In the Revised Statutes, 2 R. S., 1st ed., 619, the practice was sanctioned by statute for all the courts, and made more positive by the words, “ the defendant may require” such plaintiff, etc., to file security. (See note of the-revisers explaining the statutory adoption of the practice.)

It was perfectly well settled under the Revised Statutes that, the power of the court was not limited by these provisions. People v. Common Pleas, 18 Wend., 652. The supreme court in: equity supplemented the statute by a rule of practice, which forbids even the filing of a bill in a case where defendant would toe entitled to security for costs until security had first been, given, unless the suit could be prosecuted by a solicitor, in' which case the solicitor should be liable to the amount of $100. See S. C. Rule No. 2, of 1847. The old equity jurisdiction of the courts was preserved by the Code, § 217, so that the powers theretofore exercised may be used now.

The inherent power of the court, even in actions at law, was equally well established as unrestrained by the statute.

In Swift v. Collins, 1 Den., 659, which was an action of assumpsit, a motion by defendant for security for costs was made (although the plaintiffs resided within the state) on the ground that they were insolvent and a non-resident claimed to be the owner of the demand. Defendant’s counsel claimed that the case was within the equity of the statute. Plaintiff’s counsel relied on the fact which plaintiff’s counsel here relies on, that it was not within the words of the statute. The order was granted. The -court, by Beardsley, J., following People v. Common Pleas, supra, said: “ It is not necessary to inquire whether this case is within the words of the statute, for the power to require security for costs is inherent in the court.”

In this instance, the representative of a deceased defendant is involuntarily brought into a litigation by a new proceeding instituted for the purpose, and the estate he represents should be reasonably protected as to costs of defense. Requiring security in an action by or against an executor is purely discretionary, Code, § 3271; Tolman v. S., B. & N. Y. R. R. Co., 92 N. Y., 353; Fish v. Wing, 1 Civ. Pro., 231, and security in such cases may be required even pending an appeal. Gedney v. Purdy, 47 N. Y., 676; Gifford v. Rising, 48 Hun, 128; 15 St. Rep., 596; Nat. Ex. Bank v. Silliman, 4 Abb. N. C., 224. The right to continue a suit in equity, under § 757 of the Code, is not absolute and unqualified, but must be determined according to settled equitable considerations. Coit v. Campbell, 82 N. Y., 509; Lyon v. Park, 111 id., 350; 19 St. Rep., 626; Hayes v. Nourse, 114 N. Y., 595; 24 St Rep., 569. The court, in the exercise of its equitable jurisdiction,, had the power (in reviving the action) to attach the condition that the plaintiff give security. The order was properly made, and the motion for reargument must be denied, with ten dollars costs.


text:
    Charles H. Hoyt et al., Pl’ffs, v. Loie Fuller, Def’t.

      (New York Superior Court, Special Term,

      Filed June 16, 1892.)

      1. Contract—Theatrical.
    Where a contract of employment of an actress and dansmse is intended to give the theatrical managers her exclusive services, a negative clause is unnecessary to secure that result.
    S. Same—Injunction.
    Where such actress and danseuse has a specialty which is unique and extraordinary and which renders her performances .specially attraciixe, an injunction will lie to prevent her appealing therein at other theatres during her leisure time, as such appearances would result in pecuniary injury to the manager with whom she was under contract.
    Motion by plaintiffs for injunction pendente lite.

      Howe & Hummel, for pl’ffs; Lewinson & Falk (A. J. Dittenhoefer, of counsel), for def’t.
   McAdam, J.

—The defendant was to render artistic services for the plaintiffs during “the run ” which still continues at plaintiff’s theatre, and on the termination of “ the run ” the defendant was to “ go on the road ” and “ for a run in Boston ” not exceeding August 1, 1892. These are dramatic terms, but well understood. True, the option of terminating the contract is left with the plaintiffs, but the defendant cannot complain of that after obtaining employment on the strength of that special condition. The plaintiffs do not seek to terminate the contract, but to enforce all of its provisions, which are fair, and consequently not.unconscionable. The contract was intended to give the plaintiffs not the divided, but exclusive, services of the defendant, and where that is apparent a negative clause is unnecessary to secure that result. Daly v. Smith, 38 N. Y. Super. Ct, 158; Duff v. Russell, 39 St. Rep., 266; McCaull v. Braham, 16 Fed. Rep., 42, note. While equity-will not interfere to restrain the violation of such contracts except where the services are special, unique and extraordinary, The S. L. Co. v. Crane, 35 St. Rep., 473, the present is essentially such a case. The defendant is an actress and danseuse, performing what is known as the serpentine dance, which has gained widespread notoriety. She admits that it is unique and original with her.

In a bill filed in the United States circuit court by the defendant to enjoin Minnie Renwood Bemis from attempting to imitate the dance, Miss Fuller lays great stress on the fame, profit and success she has acquired from it, and describes her artistic effort as follows: The cause of such success, fame and profit was the originality and extraordinary novel nature of the incidents, scenes and' tableaux of said composition, which consist of a series of fantastic, graceful, unique, harmonious and highly pleasing dances, each of which portrays or represents different characters, all of which appeal to the sense of the beautiful and aesthetic emotions; that the composition is entirely novel and unlike any dramatic incident, scene or tableaux known to have been theretofore represented on any stage, and that she invented and composed the same.”

If this graphic description be correct, it is evident that no one can be procured as a substitute for the defendant She is the original and only artistic serpentine dancer, while her would-be rivals are but poor imitators.

The defendant violated her contract with the plaintiff by appearing at Amberg’s theatre in said dance, and claims the privilege of appearing therein at other places, as her time is not wholly occupied at the plaintiffs’. But this is contrary to the spirit and intent of the contract. The plaintiffs evidently considered the defendant a drawing card, an attractive feature, and evidently employed her with a view of inducing people to come and witness her performance who might not otherwise be influenced to visit their theatre. • If she is permitted to give the same performance elsewhere, it is needless to say that pecuniary injury to the plaintiffs will follow, the exact amount of which is incapable of proof; hence equity will protect them by restraining the wrong. The injunction will be continued until August 1, 1892, unless the plaintiffs sooner elect to terminate the contract, according to the option therein contained. -


author: Per Curiam.

text:
    Smith A. Skinner, Resp’t, v. The Walter A. Wood Mowing & Reaping Machine Co., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed September 14, 1892.)

    1. Bab—Former adjudication.
    The parties to this action to recover for the use of a patent entered into . an agreement whereby it was agreed, on the part of plaintiff, that defendant should have the exclusive right of using an oiler, plaintiff’s invention, on its mowing and reaping machines, and on the part of defendant, that it would use the oiler upon its said machines, and would pay plaintiff the reasonable value of such use. In a former action between the parties, plaintiff recovered a judgment for the use of the oiler to September, 1884. Held, that the former judgment constituted no bar to a recovery by plaintiff in this action for the use of his patent since September, 1884.
    2. Corporation—Can act only through trustees.
    In such case it appeared that in October, 1880, and in June, 1882, a verbal notice was given plaintiff by defendant’s attorney that the patent was invalid, and that defendant refused to pay royalties to the plaintiff. The notice was not directed by the vote or resolution of defendant’s board of trustees. Held, that as defendant could only act through its trustees, no valid action was taken by it with a view of terminating the contract with plaintiff or giving him notice of the same.
    Appeal from judgment in favor of plaintiff entered upon the report of a referee.
    Action for royalties for the úse of a patented oiler on defendant’s machines.

      Cowen, Dickerson, Nicoll & Brown (Esek Cowen, of counsel), for app’lt; Lansing & Cantwell (James Lansing, of counsel), for resp’t.
   Per Curiam.

—Defendant insists that the contract under which plaintiff claims was single, and its breach constitutes but a single cause of action, and plaintiff having in a former action chosen to sue for and recover what he now claims was only part of his damage, cannot recover the balance. _ °

We are of the opinion that the learned referee has reached the correct conclusion as to this position of the defendant’s, and referring to his opinion in that regard, deem it unnecessary to further discuss the matter. 2 Parsons Cont., 29-31; Lucesco Oil Co. v. Brewer, 66 Pa., 354; Sickels v. Pattison, 14 Wend., 257; Per Lee v. Beebe, 13 Hun, 89; Tipton v. Feitner, 20 N. Y., 423.

Defendant also claims that plaintiff’s patent being in fact void, after the notices claimed to have been given in October, 1880, and June, 1882, all liability to pay for the use of plaintiff’s patent ceased. It concedes that the invalidity of plaintiff’s patent alone is no defense to the action as to defendant as licensee, Marston v. Swett and others, 66 N. Y., 207; 82 id., 526, but it insists that at the time mentioned notice was given to plaintiff that it would pay no more under the contract, and that the invalidity of the patent after such notice should prevent a recovery. The referee held that no notice was given by defendant to plaintiff sufficient to terminate the contract. We coincide with his views, and again, referring to his opinion in that regard, will not discuss the matter, except to make a single suggestion.

We are unable to see that any valid action was taken by defendant with a view of terminating the contract with plaintiff, or giving him notice of such termination. The defendant could only act through its trustees. Beveridge v. N. Y. E. R. R. Co., 112 N. Y., 22; 20 St. Rep., 962.

It does not appear that the trustees ever met, acted or voted in • the matter. It is not shown that the auditing board had any authority to cancel or annul the contract made by the corporation, or to serve any notice upon the plaintiff; and if such board had this power, it does not appear that it attempted to exercise it. Mo vote was taken, nor any action, except an expression of opinion by the individual members of the board. The evidence, we think, sustains the finding of the referee. The first action was commenced in July, 1883. The alleged notices were given by defendant in October, 1880, and June, 1882. Therefore, although, if in fact any proper and authorized notices were given to plaintiff by defendant, it had a complete defense to any action of the plaintiff since October, 1880, no such defense was asserted in its answer, or claimed on the trial in the first action. This failure on the part of the defendant to claim such a defense in the pleadings or on the trial of the first action is virtually an admission that no such defense existed, and tends to show that the conclusion of the learned referee was correct.

The judgment in the first action necessarily determined that plaintiffs license to defendant continued until September 1st, 1884, two years after the alleged notices, and this fact was not controverted by defendant in the pleadings or on the trial.

It follows that as the former judgment does not prevent the plaintiff from recovering for the use of his patent since September 1st, 1884. and the invalidity of the patent alone is no defense to the action, and no sufficient notice was given by defendant to plaintiff that it would pay no more under the contract or license, that the plaintiff is entitled to judgment in the action. It is not, then, necessary to consider also the position taken by the learned referee that the former judgment was a bar to the defence asserted by defendant based upon the invalidity of the plaintiff’s patent, and the notice to him alleged to have been given by defendant.

Judgment should be affirmed, with costs.

Mayham, P. J., Herrick and Putnam, JJ., concur.


author: Putnam, J.

text:
    Phillip Mattes, App’lt, v. Charlotte Frankel et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed September 14, 1892.)

    1. Basements—Right of way—Representations at time of sale.
    In an action for trespass it appeared that the parties owned adjoining * lots; that_ plaintiff formerly owned both lots and sold one to defendants; that pending the sale the parties walked through a lane and through a gate across the rear of plaintiff’s lot to the barn on defendants’ lot, plaintiff saying, “ Here is the right of way to this barn.” Ho mention of any right of way was made in the deed, but after its execution defendants used the right oí way for a period, and with plaintiff’s consent put a staple on the gate. Held, that as between these parties the right of way must he deemed to exist as represented at the time of the purchase. '
    2. Evidence—Parol—When admissible.
    Parol evidence as to the representations of a grantor prior to the execution of the deed may be shown to establish fraud or an estoppel.
    3. Same—Improper—Instruction to disregard equivalent to striking out.
    When improper evidence has been erroneously received, a direction of the judge to the jury to disregard such evidence is equivalent to striking it out.
    Appeal from a judgment for costs entered upon a verdict of a jury, and from an order denying plaintiff’s motion for a new trial.

      Charles Davis (Peter Cantine, of counsel), for app’lt; Carroll Whitaker, for resp’ts.
   Putnam, J.

—The parties own adjoining lots on the east side of Partition street in Saugerties, and the controversy arises out of an alleged right of way claimed by defendants over appellant’s lot In 1854 plaintiff’s land was owned by John Grlennon, who, with Abigal Heath, owning the adjoining lot on the north, on May 17, 1854, by deed created a lane between the two lots for the use thereof. Defendants own the lot on the east side of Partition street adjoining plaintiff’s lot on the south. •On the rear of defendants’ lot is a barn, and the only means of access thereto by teams from Partition street is through the -above mentioned lane, and across the rear of plaintiff’s lot. The testimony shows that the owners or occupants of defendants’ lot for over thirty years prior to this action, both before and after its purchase by plaintiff, have used to a greater or less extent said lane and way across plaintiff's lot as .a means of access to said barn.

Plaintiff obtained title to the lot he now owns on May 9, 1867, and to the premises now owned by defendants on April 24, 1869. He remained the owner of both lots until March 12, 1889, when he sold to defendants the property now occupied by the latter. Ho mention is made in the deed of a right of way across plaintiff’s premises, or through said lane. Defendant Schwartz and one Lazarus testified in substance that just before the deed, and pending the negotiations leading to the purchase, plaintiff went with the said witnesses from Partition street east through the lane, and from the end of the lane through a gate across the rear of his lot to the barn, and pointed out the said route as the right of way to the ham, and Schwartz testified that in making the purchase he relied upon such representations. There was conflicting evidence as to the representations made by the plaintiff, presenting a question of fact which was properly submitted to the jury. Plaintiff, shortly before the action, fastened up the gate at the end of the lane, thus preventing access by defendants to their barn. They broke the fastenings, and plaintiff brought this action. Defendants claim a right of way by necessity, and also by prescription.

The trial judge held that defendants established no right of way by necessity or prescription and withdrew these questions from the jury; but submitted the question whether the alleged representations of plaintiff as to the right of way were in fact made, and if made he instructed the jury that “ the plaintiff so practically located what he sold as to give the defendants such a license coupled with such interest to go through this alley that he cannot and ought not to be permitted to revoke it.”

Concurring with the view of the court below that the evidence did not establish a right of way by necessity or prescription, the only question for our consideration is whether plaintiff, having, as determined by the verdict, at the time of the purchase represented that there was a right of way to the defendants’ barn as now claimed by them, is estopped by such representations. The plaintiff was selling to defendants a lot of land with a barn on the rear. It was apparent that there was no access to the barn for teams except through the lane in question and across the rear of the lot retained by plaintiff. The parties during the negotiations walked up this lane and across the plaintiff’s lot to the barn and (as the jury found on the conflicting evidence) plaintiff referring to the way across his lot and the lane in question said, “here is the right of way to this barn." After the execution of the deed, defendants used this right of way for a period, and with plaintiff’s consent put a staple and hook on the gate, plaintiff at the time referring to the way as “ defendants' right of way."

If in the conversation between the parties at the time of the purchase plaintiff had simply remarked that defendants should have a right of way to the barn over his property the agreement would have been invalid and unenforcible, no such right being reserved or given in the deed. But the testimony shows not an agreement that defendants might use a right of way, but a representation that such a right of way in fact existed. Plaintiff having made such representations when defendants purchased, and the latter having relied thereon, is plaintiff now prevented from denying the existence of such an easement ? The fact that real estate is affected does not prevent the operation of the doctrine of estoppel. De Herques v. Marti, 85 N. Y., 609; Mattoon v. Young, 45 id., 696; S. C., 2 Hun, 559; Trustees v. Smith, 118 N. Y., 641; 30 St. Rep., 105.

The deed to defendants conveyed the appurtenances with the lot without mentioning or describing the right of way in question. But if such a right of way existed as represented by plaintiff it would pass by the deed as an appurtenance. 4th Kent’s Com., 467; Gerard on Titles to Real Estate, 520; Parsons v. Brown, 5 Hun, 112; Huttemeier v. Albro, 18 N. Y., 48.

Plaintiff having represented to defendants when they purchased that the right of way existed and the latter having relied upon such representations, can the plaintiff now deny that such a right of way in fact exists ? The rule applicable in such a case is stated in Trustees, etc., v. Smith, supra, at page 641: When a party, either by his declarations or conduct, has induced a third' person to act in a particular manner, he will not afterwards be permitted to deny the truth of the admission if the consequences would be to work an injury to such third person or to some one claiming under him.”

I think, therefore, as between these parties, the right of way must be deemed to exist as represented at the time of the purchase.

The plaintiff cannot now deny representations made during-the negotiations which doubtless induced the action of the defendants.

- It follows that the court below correctly disposed of the case. Withholding all other questions from the jury, he allowed them to pass on the question whether the plaintiff in fact represented to defendants at the time of the purchase that the right of way as-•claimed existed, and if the jury found that such representations were made and relied on, instructed them that the plaintiff was estopped from denying the existence of said right of way.

■ The appellant claims that the court below erred in receiving paroi evidence as to negotiations prior to the deed. Corse v. Peck et al., 102 N. Y., 513; 2 St. Rep., 493. The doctrine in the authority above cited is not applicable in this case. Parol evidence as to the representations of a grantor prior to the execution of the deed may be shown to establish fraud or an estoppel. See cases cited above; also, Newman v. Nellis, 97 N. Y., 285.

The appellant further suggests that the court erred in receiving and refusing to strike out the evidence tending to establish the right of way claimed by prescription. Assuming that such testimony was incompetent, yet the court in his instructions to the jury withdrew this evidence from their consideration and stated that the only question for them was as to what occurred between plaintiff and defendants at or immediately prior to -the purchase as to this right of way. He instructed the jury clearly that the evidence did not establish a right of way by necessity or by prescription, and that these questions were not for them to consider. It was formerly held that an error in receiving improper evidence was not cured by a direction of the judge to the jury to disregard it. Erben v. Lorillard, 19 N. Y., 299.

In Gall v. Gall et al., 114 N. Y., 122; 22 St. Rep., 746, the court held that if improper evidence was erroneously received and stricken out the error was cured.

In Holmes v. Moffat, 120 N. Y., 162; 30 St. Rep., 779, improper evidence having been erroneously received, the court of appeals determined that a direction of the judge to the jury to disregard such evidence was equivalent to striking it out. Under this authority the receipt of the evidence in question by the court and refusal to strike out the same does not require a reversal of the judgment, the court having directed the jury to disregard it.

The appellant insists that the court below erred in denying the motion for a new trial on the ground that the verdict was against the weight of evidence. We think that this is a case where the trial court properly submitted to the jury the question of fact in the case. There was conflicting-evidence, and although we might on reading the testimony reach a, different conclusion from that arrived at by the jury, yet we are unable to say that the evidence was so strongly preponderating in favor of the plaintiff as to render a reversal of the judgment proper.

The judgment should be affirmed, with costs.

Mayham, P. J., and Herrick, J., concur.


author: Mayham, P. J.

text:
    Almyron Conkey, Resp’t, v. Charles Kenyon, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed September 14, 1892.)

    Trespass—Appeal—Technical objections—When to be made.
    On appeal by defendant from a judgment of a justice’s court in an action for trespass upon plaintiff’s farm, it was contended for the first time that it did not affirmatively appear that the alleged trespass was committed in the state or that plaintiff owned or was in possession of the farm in question, and therefore that a motion for a non-suit was improperly denied. Held, that the judgment should be affirmed as there was sufficient evidence before the justice to uphold it, and the objections raised on appeal were technical in character and should have been specifically made in the trial court.
    Appeal from the judgment of the county court of St. Lawrence county, affirming a judgment of a justice of the peace.

      D. M. Robertson (Walter E. Ward, of counsel), for app’lt; Chamberlain & Sale (Worth Chamberlain, of counsel), for resp’t.
   Mayham, P. J.

—The complaint before the justice was for trespass upon the plaintiff’s farm and injury to the plaintiff’s crops. The answer was a denial, "and an allegation that the trespass was caused by the defective division fence which plaintiff was bound to maintain. On the trial the evidence tended to show that the premises on which the alleged trespass was committed was in St. Lawrence county, but no direct proof of the town or county in which the locus in quo was situate was given. The justice ordered judgment from which an appeal was taken to the county court, when the judgment of the justice was affirmed, and the defendant appeals to this' court.

We think the judgment should be affirmed for the reason stated in the opinion of the county judge. There was sufficient evidence before the justice to uphold the judgment and the objections raised here were not. specifically made in the court below.

As they are of a technical character, they should have been specifically stated before the justice, so that the defects of proof if any could have been obviated, or an opportunity given for that purpose.

Judgment affirmed, with costs.

Putnam and Herrick, JJ., concur.


author: Herrick, J. Putnam, J.

text:
    John S. Van Vechten et al., App’lts, v. Teunis Van Vechten, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed September 14, 1892.)

    1. Evidence—Portion of letter complete in itself.
    A portion of a letter, containing the whole of a proposition or statement, complete in itself, the matter having no connection with that contained in the other portion of the letter, may properly be admitted in evidence.

      2. Same—Code Civ. Peo. § 829.
    In an action to have a deed declared a mortgage, given as security for the payment of a certain note, letters from the defendant to J, the original grantor", deceased, and the endorsement on the note from J, to defendant, were received in evidence, defendant testifying that he found them in a trunk of J’s after his death, and that the signatures were his own, placed there at the time the letters bear date; and also testified as to the date of the endorsement. Held, incompetent, under § 829 of the Code.
    3. Same.
    In such action, letters from plaintiff B, to defendant, written after she had parted with the title to the land in question, and after the commencement of the action, were received in evidence, generally. Held, that they were improperly admitted in evidence; that while the declarations and admissions in them were competent against B, they were not against the other plaintiffs.
    Appeal from a judgment in favor of defendant entered upon the report of a referee.

      Cantwell & Cantwell (William P. Cantwell, of counsel), for app’lts; Weeds, Smith & Conway (T. F. Conway, of counsel), for resp’t.
   Herrick, J.

—The portion of a letter marked for identification June 25th, B., should have been received in evidence; the defendant says he wrote it, and it is admitted that he sent it to one of the plaintiffs; its subject matter has an important bearing upon a material issue in the case, its reception in evidence was objected to on the ground, “ that it is only a portion and that the writing has evidently been mutilated.” The defendant stated “ that pages one and two do not appear to be found except a portion of page two. These portions appear to have been cut off.” The defendant was asked to take the letter and examine it and see if he could state the substance of the contents of that portion of the letter that had been cut off. The witness refused to ex-' amine the paper, and was sustained in his refusal by the referee. The plaintiff offered to show that the prior portion stated to have been cut off had no relation to "any of the matters referred to in the paper as then presented. The referee held such evidence incompetent, and excluded it, and also refused to receive the letter in evidence. This, I think, was error. I can see no reason why a portion of a letter containing the whole of a proposition or statement, complete in itself, the matter having no connection with that contained in the other portion of the letter, should not he admitted in evidence ; especially when the party against whom it is offered in evidence is the writer thereof, is a witness, and is not only given the opportunity, but is asked to state whether the contents of the portion offered is in any way connected with the contents of the missing portion, and he refuses so to state, and refuses to examine the paper for the purpose of ascertaining by such examination whether he can determine there was, or was not, any connection or relation between the contents of the missing portion of the letter and the contents of the portion offered in evidence.

The letters from the defendant to John Yan Yechten, deceased, marked exhibits 1 A to 12 A, inclusive, and the endorsement on the $2,400 note from John Van Vechten, deceased, to the defendant, the note and endorsement being exhibit 12 in the case, were improperly received in evidence. John Van Vechten is the person through or under whom the defendant claims title to the premises in question. The letters purport to have been written by the defendant to John Van Vechten, deceased; the defendant was one of the administrators of John Van Vechten, and he claims to have found these letters in a trunk of John Van Vechten’s after his death; at the time of writing the letters, or some of them, the defendant was in California; the defendant testifies that the signatures are in his handwriting, placed there at the time the letter or letters bear date; he also swears that the endorsement upon one or more of them is in his brother’s handwriting.

In Ressequie v. Mason, 58 Barb., 89, where an administrator brought suit upon a claim against the intestate’s son, the defendant offered in evidence certain letters that he testified were written by himself, and found by him among the papers of the deceased, the court said: “ The only evidence of their having been written by the defendant to the intestate, or of their having been found amongst the papers of the latter, thus showing that he had received and retained them, was the testimony of the defendant himself. The objection was taken that the defendant was incompetent to testify on the subject, under § 399 of the Code, and exception to the ruling admitting the evidence taken. The testimony was clearly incompetent. It related to both a ‘ transaction ’ and a 1 communication ’ between the party testifying and a deceased person whose claims against such party were the subject of litigation. The provisions of § 399 of the Code relate as well to written as to verbal communications.” Section 399 of the old Code and § 829 of the present Code are substantially the same. See also Chaffee v. Goddard, 42 Hun, 147-151; 3 St. Rep., 386; Garvey v. Owens, 37 Hun, 498; Weed v. Hornby, 35 id., 580; Denham v. Jayne, 3 id., 614.

Exhibit No. 12, being the note and endorsement, the defendant swears he also found in the trunk of the deceased; that the endorsement upon it is in his, the defendant’s, handwriting. He says it was made September 2d or 3d, 1867.

The defendant’s claim is that the testator executed a deed to one Mrs. Briggs, one of the plaintiffs, for the defendant in consideration of the $2,400, the deed while in Mrs. Briggs’ name being delivered to him, and he says that he made the endorsement upon the note at or before the time of the delivery of that deed to him ; that afterwards, I assume he means after he had endorsed it, and about September 3, 1867, was the next time after-wards before John’s death that he saw exhibit 12; and that after his death he found it in John’s trunk. This points in inferential but unmistakable terms to the making of the endorsement upon the note, and its surrender thus endorsed by the defendant to John.

A fact that cannot be proved directly by the witness cannot be established inferentially by his testimony. Grey v. Grey, 47 N. Y., 552; Johnson v. Spies, 5 Hun, 468; Jacques v. Elmore, 7 id., 675; Viall v. Leavens, 39 id., 291.

The endorsement as offered in evidence is a declaration in his own behalf, and the whole affair as testified to is clearly a personal transaction between the defendant and the. deceased, and inadmissible in evidence. Redfield v. Stett, 4 St. Rep., 864.

The letters and the endorsement upon the note, together with the testimony I. have referred to, seem to me to come clearly within § 829 of the Code of Civil Procedure and the principle of the cases hereinafter cited.

The language and intent of that section embraces every variety of affairs, all means of communication, oral, written, signs or gestures, direct or indirect, positive or negative; or evidence of facts the plain inference from which is a personal transaction between the witness and the party deceased. If the deceased could contradict, explain or qualify the testimony, if living, it comes within-the rule. Tooley v. Bacon, 70 N. Y., 34; Koehler v. Adler, 91 id., 657; Holcomb v. Holcomb, 95 id., 316; Clift v. Moses, 112 id., 426; 21 St. Rep., 777; Mills v. Davis, 113 N. Y., 243; 22 St. Rep., 580; Nay v. Curley, 113 N. Y., 575-81; 23 St. Rep., 496; Heyne v. Doerfler, 124 N. Y., 505; 36 St. Rep., 497, and cases above cited.

Exhibits 18 A and 19 A, being letters from the plaintiff, Mrs. Briggs, to the defendant, I think were improperly admitted in evidence. They were written after the commencement of the action, and while the declarations and admissions in them were competent evidence against' the writer, they were not against the other plaintiffs; there was no such joint interest between Mrs. Briggs and the other plaintiffs as would render her declarations or admissions evidence against them. And then, too, the letters were written after she had parted with title to the land in question, and after the commencement of the action. They were admitted in evidence generally, not limited in their effect to the writer only. Matter of Will of Baird, 7 St. Rep., 758; S. C. on appeal, 14 St. Rep., 172, and cases cited.

There are many other exceptions to the rulings of the referee in the reception and rejection of evidence, particularly to alleged violations of § 829 of the Code, but the conclusion at which I have arrived as to the questions I have discussed renders an examination of the other exceptions unnecessary, especially as many of them seem to be determined by the same principle governing those passed upon in this opinion.

Eor the errors herein referred to I think the judgment should be reversed, the referee discharged and a new trial granted, costs to abide .the event.

Mayham, P. J., concurs.

Putnam, J.

—I “concur in result,” because I have only had time to examine one of your reasons for reversal, i. e., the reception of the evidence of defendant as to the endorsement, the time it was made, etc. I think clearly this was a personal transaction.


text:
    Latina Spore, App’lt, v. Nathan Vaughn, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed September 14, 1892.)

    1. Mortgage—Consideration.
    In an action to set aside a bond and mortgage on the ground that it was given without consideration and under duress and coercion by her husband, it appeared that they were given by plaintiff to V. to raise $375 to take up notes given by her husband or to pay that amount due by him to the town; that plaintiff knew that there was a doubt about her husband’s liability to the town. Held, that the evidence justified the finding that the transaction was a loan from defendant to plaintiff, on her mortgage of $275, to pay notes of her husband, and henc e a sufficient consideration for the mortgage.
    2. Same—Opinion op witness.
    In such case evidence that, at a time prior to the execution of the mortgage, in witness’ opinion, plaintiff was “pretty nervous and troubled,” was properly excluded.
    3. Trial—Findings.
    A court is not bound to make findings as to the evidence given.
    4. Same.
    Where it is a question of fact whether or not a requested finding is correct or- not, and the evidence is conflicting, a court is not bound to so find.
    Appeal from a judgment entered upon a decision and findings of a justice at circuit, after submitting certain questions to the jury, and from a denial of a motion for a new trial.

      M. S. Wilcox (William C. Lamont, of counsel), for app’lt; Charles E. Nichols (Hobart Krum, of counsel), for resp’t.
   Putnam, J.

—On the trial four questions were submitted to the jury, viz:

“ Were threats of criminal proceedings against the plaintiff’s husband uttered to the plaintiff by the defendant or by his brother John W. Vaughn?

“ Did such threats so constrain the will of the plaintiff as to cause her to execute the bond and mortgage in suit ?

“ Did the plaintiff’s husband utter threats to the plaintiff or attempt to intimidate her with apprehension of criminal proceedings against him unless she would execute the said bond and mortgage ?

“ Was the plaintiff’s will so constrained by such threats or intimidations as to cause her to execute said bond and mortgage ? ” To each of which questions the jury answered “ No.”

The learned court also, after due deliberation, made the following findings of fact:

“ That the execution and delivery of said bond and mortgage was the free act and will of the plaintiff, without any fraud, duress, coercion, threats or undue influence.

“ That there was a good and valuable consideration for the execution and delivery of said bond and mortgage.”

The above findings of the court 'and jury were sustained by the testimony given upon the trial. Although the plaintiff and her husband testified to a state of facts from which duress might be inferred in obtaining the bond and mortgage described in the complaint, yet their testimony was contradicted by the defendant John W. Vaughn, John B. Gallup, and other testimony given -upon the trial.

This evidence, if it does not preponderate in favor of the defendant, is at least amply sufficient to sustain the findings of the learned judge who passed upon the case at special term. I think, however, that the weight of evidence upon the question of duress is clearly with the defendant.

As to the consideration for the bond and mortgage the testimony shows that it was given by the plaintiff to ¡Nathan Vaughn to raise $275 to take up the note given by her husband or to pay that amount due by him to the town. The facts of the case were known to plaintiff and all the parties to the transaction, and do not appear to have been misstated. If there was a mistake as to the legal question whether defendant and his brother John Vaughn were or were not liable on the bond given by them for the plaintiff’s husband, on account of the said notes, I am unable to see how that fact affects plaintiff’s liability on the bond and mortgage. The testimony does not show that any attempt was made to deceive her on the subject of her husband’s liability or that she was deceived. The parties had some question as to the liability of defendant and his brother on account of the notes; proposed to consult Judge Gilbert on the subject in presence of plaintiff, but on account of Mr. Spore’s illness did not' do so. Thus there is evidence to show that plaintiff knew there was a doubt about her husband’s liability to the town on account of the notes. This evidence was sufficient to sustain the finding of the jury that with such knowledge she executed the bond and mortgage to raise the money to take up the notes, whether'they were in fact notes for the payment of which the town was charged or were merely the individual notes of Mr. Spore. The evidence in the case justified the finding that the transaction was a loan from defendant to plaintiff, on her mortgage of $275, to raise that amount of money to pay the notes of her husband. Hence it appeared by the evidence that there was sufficient consideration for the bond and mortgage.

Hence there must be an affirmance of the judgment unless some exceptions taken by the plaintiff to the rulings of the court on the trial, or to his findings or refusal to find, should lead to a reversal.

The evidence being ample to sustain the finding of the judge that the execution and delivery of the mortgage described in the ■complaint were obtained without fraud, duress, coercion, or undue influence, and also showing a sufficient consideration for the bond .and mortgage, it is not important to consider whether there was any proper or timely motion for a new trial made. There being, however, no order entered on such motion it is difficult to see how an appeal can lie from its denial.

It is urged by the plaintiff that the court erred in not finding ■as requested by her in her proposed 16th finding. The answer to -this position is, that the finding asked the court to find, except as below mentioned, not conclusions of fact or law, but rather evi■dgnce given "on the trial. A court is not bound to make findings •as to the evidence given. However, all that was material in plaintiff’s proposed 16th finding was in fact found by the court in favor of the plaintiff among his legal conclusions. As conclusions of law the court found that the notes given by Spore were his own individual notes and not the obligations of the town. Also that the defendant and his brother, as Spore’s bondsmen, were not liable on account of said notes.

It is suggested that the court erred in excluding the testimony of Sager “ I think she was pretty nervous and troubled; ” and the testimony of Dyer and Stevens that “ she was excited; ” u her eyes looked as if she had been in trouble; she appeared very excited,” etc.

I think the court did not err in this regard. The evidence of Sager was as to a time before the return of her husband, and the opinion of the witness as to her nervousness at that time was entirely immaterial. The evidence of Stevens was merely his opinion as to her appearance during a conversation between her .and the witness and in the absence of the defendant.

The same is true as to the statement of Dyer. Again, the evidence excluded was merely the opinion of the witnesses, and such evidence offered under such circumstances has never been deemed admissible.

Again the plaintiff claims that the court erred in refusing to find as requested in her proposed 20th finding.

The finding was as- follows :

That plaintiff was called into the room and requested to sign the mortgage, and she declined to do so, saying she had been advised by several of her neighbors (naming them) not to sign any papers ; that her husband then said: Then I shall have to go up; if you don’t do it I am gone up; I shall give myself over to my bail to do with me as they please.”

The court was not bound to find as requested. The proposed finding asked the court to find as to what took place when plaintiff agreed to execute the mortgage, and states a small part of what Mr. Spore then said to her. According to the testimony of defendant and his brother, Mr. Spore made other statements at that time to his wife, and she answered. The judge was not bound to find as what Spore said at the time in question, a small portion of what he, in fact, said. The plaintiff should have inserted in her proposed finding all of Spore’s statement to his wife.

It is also claimed that the court erred in refusing to find the twenty-first finding as proposed by the plaintiff, which is as follows:

. “ 21st. That the plaintiff thus pressed by her husband then signed the papers, and I find that the plaintiff would not have executed the papers but for the statements made to her by her husband and the Vaughns, and that she was induced to execute the bond and mortgage by the threats and for fear that her husband would have to go up, and in the belief and fear that if not executed he would be arrested and sent up, or surrender himself, and would be punished for the crime of embezzlement.”

Whether that finding was correct or not, was a question of fact as to which there was conflicting evidence, and the court was not legally bound to find as requested, especially as the weight of evidence was upon this question rather with the defendant than with the plaintiff.

Whether what the plaintiff’s husband is proved to have said to her, viz.: '•'■Then I shall have io go up\ if you don’t do it I am gone up; I shall give myself over to my bail to do with me as they please,” at the time she agreed to give the bond and mortgage, indicates a threat on the part of her husband which induced the plaintiff to execute the bond and mortgage or otherwise, considering the testimony of defendant, his brother, Gallup and other witnesses, the letters between her and her husband and the other facts of the case, was a question of fact for the court and jury. It was proved, after the execution of said bond and mortgage, that plaintiff said to Mrs. Gallup and to Mr. Gallup that she had executed the mortgage to defendant and was glad she had done it; she couldn’t live alone and she wanted him back, and she done it to get him back. And the jury and court, after hearing all the evidence, determined the questions of fact in favor of the defendant and found that the bond and mortgage was obtained without fraud or duress and on sufficient consideration.

There are quite a number of other exceptions taken on the trial and mentioned in the points of the appellant I have examined and considered them all, and do not deem it necessary to discuss them here. I have reached the conclusion that there are none of such exceptions that require a reversal of the judgment The questions in the case are principally of fact, and I think were correctly disposed of at the circuit, and hence, that the judgment should be affirmed, with costs.

Herrick, J., concurs ; Mayham, P. J., not acting.