text:
    Bertha K. Doane, Resp’t, v. Gustaf A. Anderson, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    1. Trespass—Search warrant.
    Defendant, without probable cause, induced a magistrate to issue a search warrant to search plaintiff’s house and person for alleged stolen diamonds, whereby she was grossly humiliated by the constable who executed it Held, that this constituted a trespass for which defendant was liable.
    2. Same—Damages.
    In the execution of the warrant the officer compelled plaintiff to undress before him and ran his fingers through her hair in searching for the diamonds. Held, that a verdict for $2,500 was not excessive.
    3. Same—Malice.
    Proof of contradictory statements by the person who claimed to have lost the diamonds as to their disposition; that defendant had formerly been a beau of the plaintiff and was now attentive to the other person, and his own testimony that he could not honestly believe that plaintiff stole . the diamonds, is sufficient to authorize a finding that he was actuated by malice in making the complaint and procuring the warrant. •
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.
    The defendant, on September 2, 1890, went before a justice of the peace of the town of Cornwall, Orange county, and had a search warrant issued to search the person and house of plaintiff, which the constable proceeded to do, compelling her to disrobe and put on a wrapper; he searched all her clothes, including her undergarments and bustle, put his hands through her hair to see if she had the jewels, claimed to be stolen, concealed in her hair. He also made her take off her shoes. For this swearing out of said warrant and the acts which followed it, this action was brought. The jury gave a verdict for $2,500, from the judgment entered upon which this appeal is taken.

      John M. Gardner, for app’lt; Wm. D. Dickey, for resp’t.
   Pratt, J.

—The case of Blodgett v. Race, 18 Hun, 132, more than justified the learned trial judge in holding that the magistrate had no jurisdiction, and that no probable cause was disclosed by defendant to him on the application for the warrant to search the plaintiff’s house and person. But the fact of a warrant, regular on its face, justified and protected the constable in making the search. Hence, the plaintiff had no remedy against the constable, but she was, nevertheless, subjected to gross indignity without lawful authority; and, since the constable was protected, it follows as a matter of" course that the magistrate and the defendant who wrongfully induced him thus to act are the parties who really did and are responsible for the wrong. ■ It was not a matter of any moment on the trial, nor is it now, to determine the precise classification or nomenclature of this cause of action. The defendant seems to proceed on the theory that it was cither libel or slander on the one hand, or false imprisonment or malicious prosecution on the other. But the allegation of false and defamatory words charging crime spoken by defend-ant to the magistrate did not make this a case of slander, nor did the fact that they were reduced to writing make it libel; nor did the allegation of want of probable cause make a case of malicious prosecution; .but, all taken together, did show that, by means of false and perhaps malicious statements, charging crime, the defendant, without probable cause, induced this magistrate, without jurisdiction, to do a wrongful act, i. e., the issuing of this search warrant, the natural consequence of which was to cause the constable, without authority of law, to invade the. privacy of plaintiff’s apartments, to grossly humiliate her, to compel her to undress before him and even to suffer him to put his fingers through her hair in searching for diamonds which it was falsely alleged had been stolen from a Mrs. Pohl. Here, then, was a trespass by defendant and the magistrate. And if it was done with what the law regards as malice, then this verdict was none too large; for this plaintiff could not have been subjected to coarser indignity if she had been a thieving prostitute.

Now on the question of malice: It is quite apparent that there was evidence which justified the action of the jury. Defendant testified that “he could not honestly believe that. Mrs. Doane stole the diamonds.” Besides it was conceded that Mrs. Pohl, the owner of the diamonds, once declared that she had put them in a safe deposit company in New York; her excuse for the declaration was that she wished to mislead the other folks in plaintiff’s boarding house as to her custody of the diamonds; the suggestion being that there would be less danger of loss by larceny. But it thus plainly became a question of fact which of her statements was true.

The jury may well have found that Mrs. Pohl’s dimonds were never stolon at all. This fact, and the farther fact that defendant did not believe that plaintiff had stolen them any way, quite justified the inference of malice. And, besides that, defendant was previously a sort of beau of plaintiff’s and was now attentive to Mrs. Pohl. Then, again, his only excuse was that he was performing an act of gallantry towards Mrs. Pohl in making this complaint, that is to say, in starting the legal machinery which resulted in compelling this girl to undress before a constable and let him rummage with his fingers through her hair. Besides this, it is quite evident that defendant’s counsel made quite serious effort to show that plaintiff’s associations in the city were not quite what they ought to have been. Taking all the circumstances together, especially the fact that defendant was formerly a sort of beau to her, and. that, therefore, in his estimation, she was good enough for him, it is not surprising that the jury proceeded on the theory of malice, and not a little of it either’.

These views sufficiently indicate the reasons why we think this verdict about right

There were no exceptions to the charge and none during the trial save such as-have been incidentally considered though not discussed in detail.

The judgment should be affirmed, with costs.

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


source: Caselaw Access Project

author: Barnard, P. J.

license: Public Domain

text:
    Andrew J. Dexter, Resp’t, v. William Ivins et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    1. Pleading—Amendment.
    In an action for wages where the complaint alleged performance by plaintiff, the answer was a denial. On the trial it was a question whether plaintiff had been discharged. The answer did not allege a discharge. Reid, that it was proper to allow an amendment of the complaint on the trial to conform to the proof, as under either form of action the amount of the recovery would be the same.
    2. Master and servant—Evidence.
    In an action by a traveling salesman for wrongful discharge, the' fact that plaintiff, had procured a stuffed order cannot be proved by a correspondence between the defendants and a stranger to the record, but the facts making it so must be proven.
    Appeal from judgment in favor of plaintiff entered on verdict and from order denying motion for a new trial.
    Action to recover wages alleged to be due under a contract of employment as a traveling agent for defendants.

      Henry C. Bryan (James G. Burnett, of counsel), for app’lts ; James & Thomas H. Troy, for resp’t.
   Barnard, P. J.

—The complaint asks a recovery upon an entire contract payable by instalments monthly. The answer admits the employment, and avers a willingness upon the part of the defendants to comply with the terms of the contract; but that the plaintiff failed to perform during the three months for which payments are claimed by him. Upon the trial it was a question whether or not the plaintiff was discharged. He did no work under the contract, and the defendants gave him none to do. Upon this state of the issue and the proof, the plaintiff was permitted to amend. his complaint so as to conform to the proof. This was proper. If there was no discharge, the plaintiff was entitled to recover. If there had been a discharge before the service was rendered, the action was in a questionable form. The defendants, however, had averred no discharge, but had framed .their answer so as to put the breach on the plaintiff. In either case the amount of the recovery was the same if the plaintiff succeeded.

The action was really tried upon the issue of performance by plaintiff, and the jury has found in his favor upon that point. The amendment was, therefore, harmless. The letter (Ex. 15), was properly admitted. It contained a copy of the plaintiff’s account.

It was not proper proof to be received on the part of defendants that they had had trouble with an order forwarded by the plaintiff. If the plaintiff had procured a stuffed order, facts were to be proven, and not a correspondence between the defendants and a stranger to the record.

It was not proper to put a question whether the plaintiff could perform his duty as salesman without samples. The facts as to the mode and manner of sale were fully proven, and the inference was for the jury.

There are no exceptions to the charge which are well taken. They seem, to be based, upon the fact that the plaintiff had. been discharged, and the findings on the point were for the jury.

The judgment should be affirmed, with costs.

Dykhan and Pratt, JJ., concur.


text:
    Walter J. Donohue, Recr, Resp’t, v. Edwin M. Jackson, Impl’d, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Conversion—Chattel mortgage.
    Before the judgment on which the plaintiff was appointed receiver was recovered, the deb:or gave a chattel mortgage on his stock of goods and fixtures, and gave possession thereof to another person under a bill of sale which conveyed the" stock not covered by the mortgage. After plaintiff's appointment defendant took possession of the same. No levy has been made on this property. Held, that the mortgagee having reclaimed the property before the creditor got a specific lien by levy, he could not be held liable for a conversion.
    Appeal from judgment in favor of plaintiffs.
    Action for conversion of chattel property.

      John C. Donohue (John F. Brennan, of counsel), for app’lt; Ralph E. Prime, for resp’t.
   Barnard, P. J.

—The plaintiff is a receiver for a judgment creditor of one Sims. The judgment was recovered in November, 1891, and the plaintiff was appointed in supplementary proceedings receiver in January, 1890. Sims executed a mortgage upon a stock of goods and fixtures for a good consideration, which mortgage was exécuted and filed in the proper office May 29, 1889. In July, 1889, Sims sold the stock of goods to one McCue, and delivered the possession of the property to him. The mortgaged property consisted of the fixtures used in the business and the goods making up the stock which were in the store at the date of the mortgage

The bill of sale to McCue is peculiarly worded. It conveys the stock in store not covered by the mortgage, which was stated to mean all goods put in since the date of the mortgage and the right to all other stock and fixtures in said store not subject to-the lien of said mortgage.

The mortgaged property was reserved, but it was delivered to McCue, and he used it in the business from November, 1889, until May, 1890, when the mortgagee took possession. Mumper v. Rushmore, 79 N. Y., 19.

The creditor never made a levy upon the property, and as between Sims and the mortgagee in May, 1890, the mortgage was good, and when the mortgagee took the property into his possession under it he was not subject to the statute as to change of possession. Before the lien of any creditor attached, the mortgagee had taken possession and sold the property. The receiver got nothing by his appointment except what was subject to the debtor’s mortgage. Sims could not have sued the mortgagee for a conversion of the property. He had delivered the same to another person, who legally held the possession for the mortgagor and not for the mortgagee. Before the creditor got a specific lien by levy the mortgagee had reclaimed his property.

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

Dykman and Pratt, JJ., concur.


text:
    In the Matter of the Judicial Settlement of the Account of Hyman B. Rosa, Ex’r of Amelia Caroline Griffin, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Will—Legacy—Bemaieder undisposed of.
    By her will testatrix, after giving certain articles to her relatives, gave pecuniary legacies to certain charitable and religious corporations, but the will contained no residuary clause. By a codicil she gave a cousin §600 and. the income of $2,000 during her life, directing that on the death of the cousin the principal should be disposed of in conformity to her will. Feld, that the $2,000 was undisposed of by the will, and, upon the death of the cousin, went to the next of kin; that the declaration of the will that the estate was disposed of for religious and benevolent purposes was not enough to enlarge the legacies to the corporations in the absence of a beneficiary named.
    Appeal from decree of surrogate directing the distribution of the principal of a trust fund among certain corporations, legatees under the will
    The beneficiary of the trust created by the codicil having died, the question involved was, whether the principal of the fund passed to the religious and charitable corporations named in the will or to the next of kin ás undisposed of.

      W. Farrington and Henry M. Taylor, for app’lts; M. A. Fowler, for ex’rs; J. S. Van Cleef, C. E. Tracy, H. D. Van Orden and Wager Swayne, for resp’ts.
   Barnard, P. J.

—There is nothing in the will and codicil which deprives the next of kin of their right to distribution. The deceased, in the year 1845, made her will ' By it she gave $2,000 to the American Bible Society; $300 to the Domestic Mission of the Dutch Church, and $300 to the Foreign Mission of the same church. She gave $300 .to the American Tract Society, and a deposit in a Hew York savings bank to a society for the relief of aged, indigent females. There was a specific bequest of books to one person, and of her mother’s mimiature to another.. There was no residuary clause, and the will contained this clause:

“In thus willing my property I wish it to be understood that I dispose of it for religious and benevolent purposes, not as undervaluing my own relatives, for whom I entertain the kindest feelings, but having received my property of the Lord, I feel it my duty to devote to the Lord that which, if divided among my numerous relatives, would be to each an inconsiderable sum.”

In 1868 the deceased made a codicil. By it she gave to a cousin $600 and the income on $2,000 for the life of the cousin, and “ at her death such principal sum shall be disposed of in conformity with my said will.”

The testatrix died in 1881. No savings bank deposit was ever found. The $2,000 was undisposed of by the will. There is no gift to the charitable societies beyond that specified in the will. There is nothing in the words expressing a motive for the will which enlarged the gifts to the societies named in the will. An intention to give to charity is not enough. There must be a beneficiary named, or the intent of the testatrix fails.

The decree of the surrogate should be reversed and the proceedings remitted, to the end that distribution may be made to the next of kin, with costs to appellant out of the. estate.

Dykman and Pratt, JJ., concur.


author: Pratt, J.

text:
    In the Matter of the Judicial Settlement of accounts of Executors of Hiram Brownell, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Executors and administrators—Mortgage—Release oe.
    Decedent’s wife received in 1873 as part of her share of her father’s estate a bond and mortgage given by her husband. Her husband, as exec-tor of her father, had previously satisfied the mortgage. Held, that such satisfaction has no effect upon the bond, and as that was not barred by the statute of limitations his personal representatives were justified in conveying his property to her in payment thereof.
    Appeal from decree of surrogate, settling the accounts of the executors of Hiram Brownell, deceased.
    The father of decedent’s wife died in 1872, being possessed of a bond and mortgage executed by decedent. Shortly thereafter the decedent, who was one of his executors, satisfied the mortgage of record. Said bond and mortgage were assigned to his wife as a part of her share of the estate. After the death of decedent his wife presented to his executors a claim for her share of her father’s estate, with interest, amounting to $34,903.17, which was allowed by the executors, and they conveyed to her the entire estate, amounting to $12,698.26, stipulating that she should pay the debts.

      John P. H. Tollman, for ex’rs, app’lts; W. Farrington, for Jane Brownell, app'lt; J. S. Van Cleef and James L. Williams, guardians ad litem, resp’ts.
   Pratt, J.

—The surrogate in his opinion says that the claim of Mrs. Brownell to be a creditor of her husband’s estate to the amount of $34,000 may be just, but he is of opinion that the executors should have interposed the defense of the statute of limitations to defeat the claim, and he disapproves of the conveyance by the executors of the farm, valued at $10,000, in payment of the claim.

The proof leaves little, if any, doubt that the deceased had received the money with which his widow sought to charge the estate.

If, however, the statute of limitations had been allowed to attach, it may be that the executors would have no right to recognize and pay theidebt. But as to a large portion of the debt we think it plain that the statute had not run.

Among the assets which came to Mrs. Brownell from her father’s estate was a bond and mortgage of her husband for $8,000, upon which $1,458 interest had accrued. This was due upon a sealed instrument.

The husband, being executor of the estate of his wife’s father, satisfied the mortgage of record; but he did not pay the bond. The bond was his own debt, due to his wife, and the satisfaction of the mortgage had no effect upon the bond. 'That remained in force, and at the time of Mr. Brownell’s death the debt and interest must have exceeded $16,000. That was much in excess of the value of the farm conveyed in payment of the wife’s claim.

The amount of the real and personal estate did not exceed $12,700. The debts of the estate paid and discharged far exceeded that amount

The only contestants are legatees. As no surplus remains after payment of the debts, it is plain the legatees can take nothing.

The surrogate’s decree should be reversed and the estate settled on these principles.

No costs.

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


text:
    Charles G. Banks, Resp’t, v. John T. Goodliffe et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1890.)

    Mortgage—Payment—Evidence.
    Defendants gave a mortgage on two pieces of real estate, and "subsequently conveyed one of them to plaintiff’s wife, the deed stating that it was subject to said mortgage, “or so much of said mortgage as may not be otherwise satisfied; that is to say, by other property described in said mortgage mentioned.” Plaintiff conducted the negotiations for the deed. The mortgage was subsequently assigned to him, after said piece was released therefrom. In an action "to foreclose said mortgage, Held, that evidence to show that the mortgage was allowed as a part payment of the consideration of the deed was admissible, as it tended to prove payment of the mortgage.
    Appeal from judgment of foreclosure and sale.

      Cornelius E. Kene, for app’lts; Charles G. Banks (H. C. Henderson, of counsel), for resp’t.
   Barnard, P. J.

—The defendants Goodliffe and wife, on the 15th of January, 1877, executed a mortgage to one Richard Burritt for $801.85. The mortgage covered two pieces of land, one in New Rochelle, and the other partly in New Rochelle and partly in Mamaroneck.

The plaintiff has title to the mortgage by assignments from Burrill to Sarah S. Banks, and from Sarah S. Banks to him. Before Sarah S. Banks assigned the mortgage to plaintiff she released the New Rochelle property from the lien of the mortgage.

The title to the land is as follows:

In July, 1877, Goodliffe and wife conveyed to Fannie E. Banks, plaintiff’s wife, the New Rochelle property. The plaintiff conducted the negotiations for his wife which resulted in the deed. The deed contained this clause: “ Subject to a mortgage of $301, made by said John T. G-oodliffe and wife to Richard Burritt, dated January 15, 1877, recorded January 20th in Liber 704 of Mortgages, p. 238, of said register’s office, at 9:30 A. M., or so much of said mortgage as may not otherwise be satisfied; that is to say, by other property described in said mortgage mentioned.”

Proof to show that this $301 mortgage was paid in making up the consideration of the conveyance was rejected because the deed contained this covenant The evidence was proper.

A certain consideration was called for by the deed amounting to $6,409. The plaintiff stated that he had not the cash consideration, and the mortgage in question was allowed as part payment thereof. We think the proof was admissible. It was in effect proving payment of the mortgage. What the real facts may be when the evidence offered is received cannot be known, but upon the record, it appears that it may be that the deed was executed and delivered upon the expectation that a certain amount of money should be paid and the conveyance made subject to this mortgage, and that the mortgage was used as a money payment This view seems to be borne out by the fact which is proven that no interest was paid upon the Burritt mortgage after 1878, a period of about twelve years.

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

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


author: Dykman, J.

text:
    Aaron R. Sares, Resp’t, v. John W. Matthews, App’lt.
    (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Costs—Offer of judgment.
    Where an offer of judgment is served within ten days before the trial the plaintiff is not forced to an election but is entitled to costs, although he recovers a less sum than that offered.
    Appeal from order of the county judge of Rockland county, denying motion for re-taxation of costs.
    The facts appear fully in the opinion of the county judge, as follows:
    Weiant, J.—This is an original action in this court. On March 7, 1890, the defendant by maü served upon the plaintiff’s attorney a written offer under § 738 of the Code of Civil Procedure to allow judgment to be taken by the plaintiff for the sum of $75 and costs. This offer was not accepted. On March 17th the cause was tried and a verdict of $50.03 rendered for the plaintiff. The plaintiff presented to the county clerk and had adjusted and allowed full costs of trial and entered judgment accordingly for such costs and the amount of the verdict The defendant now moves to set aside the judgment and taxation of costs on grounds of irregularity and -that the defendant was entitled to costs subsequently to the offer.
    I am of the opinion that the motion must be denied.
    The plaintiff was entitled to ten days within which to accept . the offer. Code, § 738. .

      A defendant cannot prevent a plaintiff from recovering costs of trial by serving an' offer within ten days before trial. Herman v. Lyons, 2 Abb. N. C., 90. An offer served within ten days of such trial cán be treated as a nullity and full costs will be allowed as if no offer had been made. Ibid; Pomeroy v. Hulin, 7 How., 161.
    It seems that under § 798 of the Code, the offer having been served by mail, the plaintiff’s time to accept would have been twenty. days, but if that were not so, the trial on March 17th deprived the plaintiff of full ten days within which to accept before trial, and this, as we have seen from authority, renders the offer ineffectual.
    What effect the service of the second offer and amended answer had upon the first offer it is unnecessary to determine; assuming the first to have remained in force and effect, still the plaintiff as appears was entitled to all costs of the action.
    The taxation of full costs and entry of judgment therefor in favor of the plaintiff was correct. The motion is therefore denied, but under all the circumstances without costs of this motion.

      Arthur S. Tompkins, for app’lt; Abram A. Demarest, for resp’t.
   Dykman, J.

—This is an appeal from an order of the county judge of Rockland county, denying a motion made by the defendants for a retaxation of the costs in this action, and we think the appeal is destitute of merit.

The offer for judgment was not served ten days before the trial, and the plaintiff was not therefore forced to an election, as he was entitled to ten days within which to accept the offer.

The order should be affirmed, with ten dollars costs and disbursements.

Barnard, P. J., and Pratt, J., concur.


text:
    Oscar G. Brian, Resp’t, v. Solomon Mead, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Appeal—Decision on conflicting evidence.
    In an action to reform a contract by changing the boundary line in the description of the premises, the plaintiff was sustained in his view by one witness and the defendant by two. Held, that where the testimony is so evenly balanced the decision of the trial court would not he disturbed.
    Appeal from judgment in favor of plaintiff.
    Action to reform a contract for the sale of wood upon a certain tract of land. Plaintiff claimed that there was an omission of a portion of the land by the description as given in the contract

      Charles Haines, for app’lt; Abram J. Miller, for resp’t
   Barnard, P. J.

—The appeal in this case presents only a question of fact The proof shows that the parties made an agreement by which the defendant sold to the plaintiff all the wood standing within certain described boundaries. The district was marked off by blazed or marked lines, but when the contract was put in writing a portion of the district was left out of the same. The parties differ as to the facts. The plaintiff testifies that the defendant was “ satisfied with the marks as we had made them.”

The plaintiff’s view of the fact was supported by the testimony of Mr. Adams. The defendant denies that there was any omission of the description and he is supported in his view by the witnesses Johnson and Lockwood. There is no case for an appellate court to interfere. The decision of the trial judge must be deemed to be final upon a question so evenly balanced as to the witnesses and where there is nothing in the testimony to call for a reversal.

Judgment affirmed, with costs.

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


text:
    William V. Molloy et al., App’lts, v. The Board of Health of the Town of Mamaroneck, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Parties—Town board of health.
    An action cannot be maintained against a town board of health for work done in constructing sewers under a contract with it. But the expense of the work is a town charge, to be audited by the town board and collected in the same manner as other town charges.
    Appeal from judgment entered on dismissal of the complaint. In February, 1888, defendant accepted plaintiffs’ bid to build a sewer on an avenue in the town of Mamaroneck for $445, which sewer was to drain certain cellars declared to be a nuisance by the defendant. This action was brought to recover the amount of the bid less payments made.

      C. H. & J. A. Young, for app’lts; Arthur T. Hoffman, for resp’t.
   Barnard, P. J.

—The plaintiff performed work under a contract with the defendant. The expense was a town charge. Chap. 27, Laws of 1885. The board of health has no place as a defendant It is a town agency only. The claim must be presented to the town auditors for audit. Myers v. Barnes, 114 N. Y., 324 ; 22 N. Y. State Rep., 164; 22 id., 795; People ex rel. Board of Health v. Board of Supervisors of Monroe County, 18 Barb., 567; Bell v. Town of Esopus,49 id., 506.

The judgment should therefore be affirmed, with costs.

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


text:
    Joseph Woermann, Resp’t, v. Berend Baas, Ex’r, Imp’ld, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Costs—Discontinuance.
    B., who had an estate for years in certain property under a will, with the privilege of buying at a specified price, having refused to purchase at the price named, the heirs brought an action of partitition, to which B. was made a party at his request. He answered, but before the case was noticed for trial the property was sold to another person, and an order was granted discontinuing the action on payment of ten dollars to B. Held, no error; that B. was not entitled to costs as matter of course even if the action had proceeded to judgment.
    Appeal from order allowing plaintiff to discontinue on payment to defendant Baas of ten dollars.
    One Bonthrop, whose heirs the parties hereto other than Baas are, died leaving a will by which he made Mr. Baas executor and gave him the use of his land for ten years, with the privilege after that time to purchase the same for $6,000. That time having passed, and Baas having refused to give more than $1,500 for the property, this action was commenced to partition the same, and Baas was made a defendant at his own request. He answered, alleging, among other matters, that it was his duty as executor to see that the proceeds were properly divided; that the proceeds of a sale thereof should be paid to him, and that his expenses and commissions should be paid therefrom.
    Before the case was noticed for trial the property was sold by the heirs to one Ditmars, and thereupon application to discontinue was made and the order in question granted.

      Benj. G. Hitchings, for app’lt; Frederick W. Molls, for resp’t.
   Barnard, P. J.

—If this action had proceeded to judgment Baas would not have been entitled to costs as a matter of course. The action was one in partition and Baas was the executor of the dead owner of the property. By this will Baas had an estate in the land for ten years with the right to purchase*at a sum named; $6,000. The ten years had expired and Baas refused to buy at that price. The heirs commenced partition and Baas was made a party defendant at his own request. The heirs sold the land and procured an order of discontinuance upon payment of ten dollars to Baas. There is no legal way to increase this allowance under the circumstances of this case.

The order should therefore be affirmed, with costs and disbursements.

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


text:
    In the Matter of John Peterson.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Justice of the peace—Removal.
    Facts insufficient to warrant the removal of a justice of the peace on the ground of oppressive conduct.
    Motion to remove John Peterson, a justice of the peace, from officé.
    Ho papers.
   Barnard, P. J.

—The respondent, John Peterson, is a justice of the peace in the city of Brooklyn. In the absence of a regular police justice he was acting temporarily as such. There was presented to him an affidavit clearly setting out a criminal offense against Carman Combs. The offense was a transfer of his property by Combs with the intent to defraud Yolkomnier & Co. and others, his creditors, and to hinder and delay such creditors in the collection of their debts.

The offense is defined in §§ 586 and 587 of the Penal Code. The offense was charged to have been done at the city of Brooklyn, and the fraudulent transferee was stated in the complaint to have been Combs’ wife through one Schubert, who was stated to have taken a paper transfer without consideration and to have given a similar paper to Mrs. Combs. The offense was clearly stated and called for the warrant which was issued against Combs. There is some proof in the papers that the policemen and constables who arrested Combs were unmannerly and even cruel in the performance of their duty; but the justice is not responsible for that.

When the prisoner was brought before the justice he was required to give $1,000 bail. The bondsman was not a resident of the city of Brooklyn and the justice required that a city bondsman be found, and for that purpose adjourned the hearing from April 23, 1891, to the 28th of April, 1891.

There is some difference as to the exact proceedings which took place on the 28th of April. The petition states that the justice fixed bail again at $2,000. The justice makes oath that he only saw when his power to ask for $1,000 was questioned that he could legally call for $2,000.

No new bail was given and the case was again adjourned for five days, during which period the complaint was transferred to the grand jury by a certificate of Mr. Justice Bartlett. The papers fail to show any evil or oppressive conduct on the part of the justice which would justify a removal from office. If he arrogantly boasted of superior knowledge in law (which he denies) it would be insufficient to remove him. The justice would have been wrong if he had denied counsel before a person pleaded. He denies that he did so ; and if, without any apparent intent, he had made a mistake in this respect, it would not support a removal from office.

At best the paper but shows improprieties of deportment and possibly a mistake in the law.

The motion to remove John Peterson is, therefore, denied.

Dykman and Pratt, JJ., concur.


text:
    Mary Pratt, Resp’t, v. Sidney G. Poole et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed September 14, 1891.)

    Mortgage—Paymekt.
    Defendant Poole gave to a firm, plaintiff's assignor, a bond and mortgage for §5,000, to secure an indebtedness for lumber. Pending a foreclosure of said mortgage another mortgage was assigned to said firm by defendant’s attorney, and an arrangement made for the cancellation of the one given by defendant. The terms of this arrangement were controverted on the trial, defendant claiming that the original mortgage was to be canceled upon the assignment of the other mortgage and payment of costs, and plaintiff that it was to be canceled on the payment of §1,000 and costs. The testimony on this subject was conflicting, but letters written by defendant some time after the arrangement was made were introduced ‘in evidence, in which lie asked for a satisfaction of the mortgage and promised to pay the $1,000. Held, that a finding that the assigned mortgage was an additional security, and not a substituted one, was supported by the evidence.
    Appeal from judgment entered upon the report of a referee.
    Action to foreclose a mortgage.

      George W. Carr, for app’lt, Poole; Alfred R. Page, for app’lt, Ada F. M. Gollner; Edward S. Peck, for resp’t.
   Barnard, P. J.

—On the 31st of March, 1883, Mary L Poole, with her husband, Sidney G. Poole, executed a bond and mortgage to Elliott, Porter & Bipley, as partners, doing business under the name of the Brentwood Lumber Company. The amount of the bond was $5,000. The bond and mortgage were given for an existing indebtedness of Sidney G. Poole to the lumber company. This indebtedness was adjusted at $6,600 in April, 1885. In February, 1888, $2,000 was paid on the mortgage. In September, 1885, $175 was paid thereon. In May, 1887, one Win-ship, at the request of Sidney G. Poole, assigned a mortgage made by Dewey & Bender, for $5,000, on lands in Queens county, H. Y., to Elliott, Porter & Bipley. The principal issue in the case is whether the Bender mortgage was substituted for the Porter mortgage, and thereby paid the Poole mortgage. The Poole mortgage was being foreclosed by the lumber company in August, 1886, and this action never proceeded to judgment, but was arrested when the Bender mortgage was assigned. There was an agreement to cancel the Poole mortgage and the specific difference is whether the cancellation was to be given for the Bender mortgage or upon the payment of $1,000 and some additional costs of the foreclosure suit.

Sidney G. Poole testifies that the agreement was to satisfy of record the Poole mortgage upon the assignment of the Bender mortgage, and upon payment of the costs. He further states that he paid these costs, $167. Mr. A. S. Tenney, who was the lawyer of the Brentwood Company, and their attorney in the foreclosure action, testifies that the agreement made upon the assignment of the Bender mortgage was that the Staten Island B. & M. (Poole) was to be canceled for $1,000 cash payment, besides the costs. That the $1,000 was never paid, and that he subsequently offered to "cancel the Poole mortgage for $750 instead of the $1,000. The written correspondence supports Mr. Tenney.- Poole promised to pay the $1,000 additional long after he says the agreement was made to cancel the Poole mortgage without such payment. The testimony of Mr. Stickler is not so positive and precise as to be entitled to much weight as against the written admission of Poole who made the agreement that the $1,000 was due to the lumber company for the satisfaction piece. The referee’s finding therefore, that the Bender bond and mortgage was an additional security, and not a substituted one, is fully supported by the evidence. The evidence shows that as between the parties to it the Poole mortgage rested on an adequate consideration. That at the time of its assignment to the plaintiff there was due upon the Poole" debt to the lumber company over $5,000. There is no agreement restricting the transfer of the mortgage by the lumber company. As between plaintiff and the lumber company, all the right of the company was transferred to plaintiff. She got not only a naked title to the bond and mortgage, but also a title to the consideration for which it was given. It was not given in pledge, but was transferred absolutely. The mortgagors were bound to pay to the holder of the legal title. Nelson v. Eaton, 26 N. Y, 410.

The judgment should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur.


author: Per Curiam.

text:
    Martin Barney, Resp’t, v. Louis E. Fuller and Truman K. Fuller, App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    1. Attorneys—Money had and bbcexved.
    In an action for moneys left with attorneys to be repaid on demand and for moneys received by them for plaintiff the defendants claimed' that they had performed sei vices for the plaintiff under an agreement by which they were to receive, if successful, a sum exceeding the amount claimed, and subsequently agreed to accept said amount in satisfaction. Plaintiff denied such agreement, and testified that defendants were to receive a certain sum per day and expenses. Feld, that the question as to the existence of an agreement and its nature was properly submitted to the jury.
    3. Same—Evidence.
    In such action proof is admissible that when the money so left was demanded defendants did not inform plaintiff that they had made a settlement of his matters.
    3. Same.
    In such a case evidence of the value of defendant’s services is admissible as bearing on the question whether it was probable that plaintiff made the agreement claimed by defendants.
    4. Trial—Exceptions.
    An exception to the admission of evidence is not available where such evidence is afterward stricken out on motion of the excepting party.
    Appeal from judgment in favor of plaintiff, entered on verdict for $2,208.47, and from order denying motion for a new * trial on the minutes.
    Action for money had and received.

      T. K. Fuller, for app’lt, L. E. Fuller; L. E. Fuller, for app’lt, T. K. Fuller; Henry Purcell, for resp’t.
   Per Curiam.

—The relation of attorney and client formerly existed between the plaintiff and defendants. The plaintiff claims that while the defendants were acting as his attorneys he left with them the sum of $930, to be retained by them until called for by him; that they also subsequently received the sum of $1,200 on a settlement of his affairs, which belonged to him; that he after-wards demanded this money of them, and they refused to deliver it to him. This action was based on these claims, and was to recover the amount thereof, $2,130, with interest. The defendants claim that, although .they received the amounts of money mentioned, the former sum was actually paid to them by the plaintiff for their services as his attorneys, and that, alter the latter amount was received by them, it was agreed between the parties that the sums so received, together with other smaller sums paid them by the plaintiff, amounting to $120, should be retained by them as compensation for the legal services they had performed for him, their precise claim being that they had made an agreement with the plaintiff whereby they were to receive the sum of $3,000 for their services if they were successful; that they were successful, and therefore legally entitled to that sum, but that they subsequently agreed to receive the foregoing sums in full satisfaction of their claim, which was agreed to by the plaintiff. The plaintiff • denied that there was any agreement by which the defendants were to be paid $3,000, or any settlement by which they were to retain the .amount in their hands in compensation for their services, but claimed that they were to be paid ten dollars per day therefor, and such sums in addition as their expenses should amount to while they were absent from home on his business. The evidence as to what the agreement was between the parties was conflicting. The defendants testified that they were to have $3,000 if successful. This the plaintiff denied, and testified that the agreement was that the defendants were to have ten dollars per day and expenses when absent from home on his business. The defendants in turn denied that such was the agreement. Under this evidence we think the questions whether the agreement was as'testified to by the defendants or as testified to by the plaintiff, or whether there was any agreement whatever between the parties as to the amount of compensation the defendants were to receive for their services, were questions for the jury. These questions were properly submitted to the jury, and its determination of them should not, we think, be disturbed.

The appellants contend that no demand of the moneys in their hands was made by the plaintiff before this action was commenced ; that such a demand was a condition precedent to the plaintiff’s right of recovery; and hence that the judgment and order should be reversed. An examination of the evidence contained in the appeal book does not justify this claim. We think it discloses that a sufficient demand was made before the commencement of this action to entitle the plaintiff to maintain it.

On the trial the plaintiff was permitted to prove that when he called upon the defendants for the $930 left with him they did not tell him that they had settled with Mullin & Griffin. We find no error in this ruling. The defendants were his attorneys. They had made a settlement of his matters when he was at their office asking for the money he claims to have left with them to be returned to him. The plaintiff was entitled to show that they did not inform him of that fact. It might well bear upon the defendants’ method of transacting business, and the consequent value of their services. Moreover, it bore upon the probability as to whether that sum was left as plaintiff claimed, or was paid to them, as claimed by the defendants. If the plaintiff did not know of the settlement, it would be more probable that he demanded the mtiney that he had paid to the defendants than if he knew that the settlement was completed and his rights secured. Again, it explained why the remaining $1,200 was not mentioned at that time. We think the court properly admitted this evidence.

The court committed no error in allowing the plaintiff to prove the situation of the matters to which the defendants’ employment related. This proof tended to show the character of the services performed by the defendants, and would aid the jury in determining their value.

We think the proof of the value of the defendants’ services was admissible as bearing upon the question whether it was probable that the plaintiff made the contract claimed by the defendants. Besides, the defendants had- a lien on the money in their hands for the services performed by them; and, in case the jury should find that neither the contract claimed by the defendants nor the one claimed by the plaintiff was in fact made, the proof was proper to enable the jury to determine the amount of the defendants’ claim for services, and thereby to determine the amount of money held by them that belonged to the plaintiff. This proof was admissible under the pleadings. The action was for money in defendants’ hands belonging to the plaintiff. The defense was, that under a contract with the plaintiff defendants were to have $3,000 for their services, and that they accepted the amount in their hands as payment in full therefor. There was no reply. None was necessary. The facts were not set up as counterclaim, but as defense only. The plaintiff’s proof was that the defendants agreed to work for ten dollars a day and expenses. The jury was not bound to believe either party as to what the contract was. It was justified in finding that the plaintiff testified truthfully when he testified that did not agree to pay the defendants $3,000 in case of success,, and also in finding that the defendants’ evidence that they were not to receive ten dollars a day and expenses as a full compensation for their services was true. In that event the evidence was proper to aid the jury in determining the value of such services.

We find no error in the exclusion of the evidence of the witness Mullm that he suspected that plaintiff would raise a question over the power of attorney given to one of the defendants. His suspicions were not proper evidence for any purpose.

One Thiebault was called as a witness to sustain the character of the plaintiff, and on the redirect examination testified that he once heard plaintiff’s honesty called in question by a Mr. Angel. He was then asked: “ What did he say ? ’’ This was objected to. The court said: “ I think, in answer to the cross-examination, it is competent.” The question was then answered. The defendants thereupon asked to have the answer stricken out, which was done. As -the defendants did not see fit to rely upon their exception, but moved to strike out the evidence, which was granted, we do not think the exception available.

We fail to find any error prejudicial to the defendants in the hypothetical questions put tc the witness Ayling on his cross-examination. He was called by the defendants as an expert witness, and had answered an hypothetical question put by the defendants. On the cross-examination questions were asked, based upon different hypotheses, which included the plaintiff’s theory as to the situation of the plaintiff’s affairs, and what was in fact done by the defendants.' We think this was proper.

The judgment should not be disturbed on the ground that the damages were excessive It was sustained by the evidence. Therefore, as there were no rulings requiring a reversal, the judgment and order should be affirmed.

Judgment and order affirmed, with costs.

. Hardin, JP. J., Martin and Merwin, JJ., concur.


author: Learned, P. J. Landon, J. (dissenting).

text:
    Israel P. Rumsey et al., Resp’ts, v. Charles A. Boutwell, Survivor, App’lt.

      (Supreme Court, General Term, Third, Department,

      Filed Sept. 9, 1891.)

    Beokees—Tbial—Question fob juey.
    In an action by brokers for a loss on the purchase and sale of October corn for defendant, under an order given in August, the answer denied such purchase and sale. The only witness as to the purchase was one of the plaintiffs. Held, that the rule that where a witness is'a party, or interested, the question of his credibility is one for the jury, although he is not contradicted, applied, and that it was error to direct a verdict for the plaintiffs.
    (Landón, J., dissents.)
    Appeal from judgment in favor of plaintiffs, entered on verdict directed by the court

      Frank S. Black, for app’lt; Alfred A. Guthrie, for resp’ts.
   Learned, P. J.

—This is an appeal from a judgment on a verdict for the plaintiff, directed by the court

The only point which the appellant urges on this appeal is that he was entitled to go to the jury, and especially upon the question “ whether this corn was ever actually purchased by the plaintiffs, as the plaintiff Rumsey is the only evidence on the subject”

The action is for a balance alleged to be owing plaintiffs upon a purchase of corn, which the plaintiffs claim that they actually made for defendant’s firm. It was admitted that in August, 1886, defendant’s firm requested plaintiffs to buy a certain amount of October corn at forty-five cents a bushel. An important question is, whether the plaintiffs did make this purchase. It was admitted that -in such cases it was the custom of brokers to purchase grain in their own names, without disclosing their principals, and that defendant’s firm knew of this custom.

The plaintiff Rumsey testified : “ On the 14th of August, 1886, we purchased this amount of com at forty-five cents a bushel. We made this purchase for defendants, under this custom." He further testifies that they bought this corn of certain persons, naming them; that it was delivered to them by receipts from elevators ; that it was handled hy receipts demanding that amount of corn, arid in no other way; that it was never actually moved from one place to another.

He produced certain slips, contract slips as they are called, which he stated were made at the time, representing the purchase. The first is signed by no one; the others purport to be signed by five different parties, and are as follows (excepting signatures):

“Chicago, 8, 14, 1886.
“We hereby confirm sales made by us to-day under the rules of the Chicago board of trade, as follows, to Rumsey and Buell: Amount Kind of property. Delivery. Price.
10 Corn. Oct. .45
“Benslet Bros."

The plaintiff advised defendant’s firm on the same day of the purchase. And several letters of plaintiff to defendant’s firm are produced which refer to the purchase. Drafts were drawn by plaintiffs on the defendant’s firm and were paid.

Finally the price of corn further declined and plaintiff Rumsey testifies that on or about September 27 they sold the corn for considerably less than forty-five cents per bushel. The difference, less what had been paid by defendant’s firm, is the amount recovered.

On October 1st, the time when the corn is alleged to have been sold, the plaintiffs wrote defendant’s firm, saying: “ The com upon your purchase was delivered this morning to us, and delivered out again upon your sale.” The defendant urges that this shows that there was no real purchase made on the 6th of August as claimed by plaintiffs. The learned justice, in his charge, stated in two places that the plaintiffs did buy the corn and paid the money for it; so that he must have assumed that the testimony of plaintiff Rumsey established an actual purchase. There is no testimony showing the meaning of “ October corn.” It may be that the order given by defendant’s firm implies that no immediate delivery was intended.

There was no witness for the plaintiffs other than plaintiff Rumsey.

At the close of the case the court directed a verdict for plaintiffs. The defendant excepted to this and also asked to go to the jury on the question whether the corn was ever actually purchased by plaintiffs, as plaintiff Rumsey was the only witness on that subject This was refused and defendant excepted.

Although the general rule is that where the testimony of a witness to a fact is not contradicted it must not be disregarded by the jury, yet it has been repeatedly held by the highest court in this state that the rule does not apply where the wit-_ ness is a party or is interested. In such cases it is decided that the question of the credibility of the witness, although he is not contradicted, is for the jury, and that the court cannot legally take this, question from them. Elwood v. West. Union Tel. Co., 45 N. Y., 549; Gildersleeve v. Landon, 73 id., 609; Kavanagh v. Wilson, 70 id., 177; Wohlfahrt v. Beckert, 92 id., 490.

We do not see why this principle does not apply here. The question on the pleadings was whether plaintiffs purchased this corn for defendant’s firm. The defendant’s answer denied this. The proof was the testimony of one of the plaintiffs only. The jury might have disbelieved his testimony. Therefore, the court could not take the question from them.

It is said that there are letters of defendant’s firm. But these are only in response to plaintiffs’ letters and information. The defendant’s firm knew nothing of the fact, and their letters are no admission.

It is also urged that the printed slips introduced in evidence so confirmed Rumsey’s testimony that the principle does not apply. But the admission of these slips was objected to by defendant. Their genuineness depends only on the testimony of Rumsey, who says that they were made at the time of the purchase. Therefore, the same principle applies to his testimony as to these slips as to any other part of his testimony, viz.: that the jury are not bound to believe it. So that we come back to the same condition, that the plaintiffs’ case rested solely on Rumsey’s testimony.

In this last respect the case is similar to that of Hodge v. Buffalo, 1 Abb. N. C., 356. The plaintiff, by her own testimony, proved her own age, and she corroborated this by an entry in a Bible, which by her own testimony she proved to be her father’s family Bible. She also testified that the entry was in her father’s hand-writing. This evidence was not contradicted. The defendant asked to go the jury, and this was refused. The general term held that this was error. The Bible and the entry rested on plaintiff’s testimony only, so that they are not independent evidence, and the case should have gone to the jury. That case is closely analogous to the present.

It is certainly doubtful, even if those slips had been proved to be genuine by other testimony, whether they would have proved that the plaintiffs bought for the defendant’s firm the corn ordered by their telegram. Nothing in those slips shows that the purchase, if made at all, was made for the defendant’s firm, or that defendant’s firm had any right therein. Even admitting that such purchase was according to custom, still it could not be shown by the slips themselves that the purchase was made for defendant’s firm. If such was the fact, it was shown only by the testimony of plaintiff Rumsey.

Let us suppose, in order to test this matter, that the jury had disbelieved all which plaintiff Rumsey said on the stand, as, under the decisions, they could lawfully do. Is there anything remaining on which a verdict in plaintiffs’ favor could be sustained? Certainly not

If the testimony of Rumsey was not true, it was difficult, if not impossible, for defendant to contradict it. Admitting that the plaintiffs made the contracts indicated by the slips, where could the defendant obtain evidence to contradict the testimony of Rumsey that these identical contracts were made for defendant’s firm ? This consideration shows the justice of the principle above examined, that in such cases as this the question must be determined by the jury, and that the court cannot decide, as a matter of law, that the plaintiff’s testimony must be believed.

But there is still another consideration. The plaintiffs’ cause of action depends not solely upon the purchases alleged to have been made for defendant’s firm, but upon the subsequent sales of the corn by plaintiffs. Such sales are denied by the answer. The fact of such sales is shown only by the testimony of Rumsey, the plaintiff. There is no corroboration of any kind. Here, then, is a fact resting only on the testimony of a party. Yet the court refuses to allow the case to go to the jury.

This is the only point’argued before us. And therefore we discuss no other, and only follow the decisions above cited, as binding upon us.

Judgment reversed, new trial granted, costs to abide event

Mayham, J., concurs.

Landon, J. (dissenting).

—I dissent. The defendant gave his order August 18, 1886, to the plaintiff, a broker buying and selling corn at the Chicago board of trade, to buy for him 100,000 bushels of October corn at forty-five cents. What did defendant expect to get August 18th ? Certainly no delivery of October corn at that early date. All he wanted was the brokers’ contracts of the Chicago board of trade for 100,000 bushels of corn, deliverable in October, such as plaintiff could there purchase. The plaintiff testified that he bought the corn on the date of the order pursuant to the order. He also produced in evidence the brokers’ contract slips which he then obtained showing the purchase as ordered. He testified to their genuineness. These slips were equivalent to the orders, or entitled the holder to the orders of their makers, for the corn specified in them, deliverable in October. The correspondence between the parties and defendant’s payments showed defendant’s admission of the plaintiffs’ case, or if less than a full admission, were in corroboration of plaintiff’s testimony. The rule that the jury must pass upon the credibility of the testimony of a party when uncorroborated has no application. That rule, like many other so-called general rules, applies to cases on all fours with those in which it has been announced. Where a party’s testimony is so new or strange as to cause surprise, or is not susceptible of contradiction if false, there is much greater reason for the application of the rule than in a case like this, where it is plain that the defendant has no doubt of the truth of plaintiff’s testimony, but has some hope that a jury may be "willing to extricate him from the consequences of -his foolish speculation.

Judgment reversed and new trial granted, costs to abide event


author: Landon, J.

text:
    Josie Quilty, an Infant, Resp’t, v. Rebecca B. Battie and Joseph M. Battie, App’lts.

      (Supreme Court, General Term, Third Department,

      Filed September 25, 1891.)

    Animals—Husband and wipe—Parties.
    Defendants were husband and wife, living together. _ The husband bought a dog and brought it on their premises, and the wife, knowing it to be vicious, harbored it on the .premises unconfined. Held, that harboring the dog and allowing it to escape, knowing its vicious propensities, was the personal act and tort of the wife; that she was liable for the resulting injury, and her husband was properly joined as a party to an action therefor.
    Appeal from a judgment- entered upon a verdict for the plaintiff upon the trial at the Washington circuit .

      L. H. Northup, for app'lts; C. C. Van Kirk, for resp’t.
   Landon, J.

—Defendants were husband and- wife, living together upon premises owned by the wife, both contributing to the household expenses. The husband bought a dog and brought it upon the premises. The jury found upon evidence justifying the finding that the dog was vicious, and known by the wife to be so, and that she harbored it upon the premises with knowledge of its vicious propensities. The dog not being confined, went upon neighboring premises and there bit the plaintiff. Harboring this dog was the personal act of the wife; allowing it to escape knowing that its vicious propensities might cause injury to others was her personal tort, and she was liable for. the resulting injury. Genenz v. De Forest, 49 Hun, 364; 17 N. Y. State Rep., 523 ; Keenan v. Gutta Percha Mfg. Co., 46 Hun, 544; 12 N. Y. State Rep., 617. Being the personal tort of the wife, her husband was properly joined as defendant Fitzgerald v. Quann, 109 N. Y., 441; 16 N. Y. State Rep., 395.

The judgment should be affirmed, with costs.

Learned, P. J., and Maytiam, J., concur.


author: Martin, J.

text:
    Edward Dexter, App’lt, v. The Riverside & Oswego Mills Resp’t.

      (Supreme Court, General Term,, Fourth Department,

      Filed July 7, 1891.)

    1. Deed—Desceiption.
    Plaintiff’s grantor conveyed certain premises to one B., described as commencing at the intersection of two streets and running along the south line of one of them to a stake. The plaintiff’s deed described his premises as beginning at the northeast corner of B.’s land and running easterly along said street. Held, that as the description began at a point1 on the south side of the street, it was intended that the course should run along said line, and the deed, therefore, did not carry the title to the center of the street.
    3. Nuisance—Excavations in stbeet. "
    Defendant subsequently acquired title to the fee of the street, and with permission of the village authorities made an excavation in front of plaintiff's premises for a pipe to convey water to its mills. In doing so, it necessarily obstructed the street and cut off access to his premises, but no unnecessary time was taken in doing the work. Held, that as the obstruction was only temporary and necessary to the enjoyment of defendant’s rights and reasonable with reference to the rights of the public, it was not a nuisance, and the court was right in refusing to allow plaintiff to prove his damages caused by such obstruction.
    Appeal from a judgment entered in Oswego county April 3, 1888, dismissing the plaintiff’s complaint, with costs. The plaintiff was nonsuited at the circuit The action was for an alleged trespass in wrongfully digging a ditch in the highway in front of •the plaintiff’s premises.

      On September 10, 1877, the Oswego Falls Manufacturing Company was the owner of the fee of the street known as Broadway and of the lands on each side of the same between the river and Granby Lake, in the village of Oswego Falls. On that day it sold and conveyed to E. M. Baker a part of lot' number one on block 163, being fifty feet front on Broadway and described as follows: “Beginning at a point on the northwest corner of said block number 163 at the intersection of Broadway and Second streets and running thence easterly along the south line of said Broadway fifty feet to a stake; thence southerly at right angles to said Broadway 132 feet to a stake; thence westerly and parallel with the south line fifty feet as it run, along said line to the place of beginning.”
    Afterwards, and on the same day, it sold and conveyed to the plaintiff a part of the premises then owned by it described as follows : “ Being a part of lot number one and a part of lot number two of block number 163 as the same are laid down on the map of the town plot at Oswego Falls, made by Peter Schenck for Col. James L. Yoorhees in 1848, beginning at a point in the north line of said block number 163 fifty feet east from the northwest corner of said block number 163, being the northeast corner of land owned by Edgar M. Baker, and running thence easterly along Broadway fifty feet to a stake; thence southerly at right angles to said Broadway 132 feet to a stake; thence westerly and parallel with said Broadway to the southeast corner of land owned by said Edgar M. Baker; thence northerly along the east line of said Baker’s land to the place of beginning.”
    Soon after the conveyance of the premises to the plaintiff he erected a brick block thereon fronting on said street, built a sidewalk along the street in front and dug a well about eighteen feet in depth on the south side of said street and within that portion of the street set apart as a sidewalk. The well furnished' an abundant supply of good drinking water.
    In December, 1885, the défendant, having duly obtained permission of the viEage authorities, dug a ditch along the south side of Broadway about twenty-two feet from the line of the street, and laid a pipe therein to convey water to its factories. In so doing, it necessarily piled up the dirt in front of the plaintiff’s premises some eight or ten feet in height, extending from the ditch which was on that side of the street to the sidewalk, which disturbed the plaintiff’s use of his premises for between two and three weeks and interfered with the ingress and egress to the building thereon. In digging such ditch, the subterranean streams which supplied said well were cut off so that no water came into the well, but the well itself was not touched.
    Broadway is a street one hundred feet in width. Twenty feet on the south side was designated by a village ordinance as a sidewalk. In October, 1885, and prior to the acts complained of, the defendant acquired'the fee of the street, unless a part was conveyed to the plaintiff by the above mentioned deed to him. On the trial the court held that the plaintiff’s deed did not convey to him the title to the center of the street, and upon that ground granted the defendant’s motion for a nonsuit. The plaintiff asked to be permitted to give evidence as to his damages; also to go to the jury upon all the questions presented. This was denied by the court, and the plaintiff excepted.

      Lester & Smith, for app’lt; H. E. Nichols, for resp’t
   Martin, J.

—A material, and perhaps the most important, question in this case is whether the plaintiff’s title extended to the center of the street, or whether it only extended to the southern boundary thereof. .

The plaintiff’s contention is that the center of the street is the boundary of his lot, and, hence, that he had title to the lands upon which the defendant made the excavation complained of.

On the other hand, the defendant claims that the plaintiff’s lot extended only to the southerly line of the street, and that it acquired title to the whole of the street by its deed from the Oswego Falls Manufacturing Company subject only to the public easement therein.

The deed from the Oswego Falls Manufacturing Company to the plaintiff was given prior to the deed to the defendant The question of plaintiff’s title is, therefore, dependent upon his deed. The description contained therein designated the place of commencement as a point in the north line of said block one hundred sixty-three, fifty feet easterly from the north-west comer of said block, being the north-east corner of land owned by Edgar M. Baker, and running thence along Broadway fifty feet to a stake. By referring to the description in the deed to Edgar M. Baker, we find that it commenced at a point on the north-west corner of said block at the intersection of Broadway and Second streets, and running thence easterly along the south line of Broadway fifty feet to a stake. Thus we see that the north-east corner of Edgar M. Baker’s lot was on the southerly line of Broadway, and as that corner was the corner of the plaintiff’s lot, it would seem that, by the description, “ thence along Broadway fifty feet to a stake,” it was intended that the line should run along the south line of said street, thus excluding any portion of the land within the boundaries of the street from the plaintiff’s lot.

While it is an established inference of the common law that a conveyance of land bounded by an existing street, carries the title to the center (Jackson v. Louw, 12 Johns., 252; Bissell v. N. Y. C. R. R. Co., 23 N. Y., 61; Hammond v. McLachlan, 1 Sand., 323 ; Sherman v. McKeon, 38 N. Y., 267; Perrin v. N. Y. C. R. R. Co., 36 id., 120; Wager v. Troy Union R. R. Co., 25 id., 529; Wallace v. Fee, 50 id., 694; Matter of Ladue, 118 id., 219 ; 28 N. Y. State Rep., 821), still, this inference is not controlling. The question, whether the title passes to the center of a stream or highway upon which lands are bounded, is one of intent. This intent is to be gathered from the description of the premises in connection with other parts of the grant, and by reference to the situation of the lands and the condition and relation of the parties to the lands conveyed and to other lands in the vicinity, and if an intent to exclude the highway or stream appears by the terms of the grant, as interpreted by the surrounding circumstances, the title does not pass. Mott v. Mott, 68 N. Y., 246; White’s Bank v. Nichols, 64 id., 65 ; Jackson v. Hathaway, 15 Johns., 447; Augustine v. Britt, 15 Hun, 395; aff’d 80 N. Y., 647; Kings Co. F. Ins. Co. v. Stevens, 87 id., 287.

Hence, the question in this case is simply one of intent. Was it the intent of the parties to the plaintiff's deed that the plaintiff should take title to the center of the street ? We think not. As ■we have seen, the point at which the plaintiff’s premises were to commence was in the southerly line of the street. Erom that point they were to extend along the street fifty feet. That it was the intent of the parties that they should extend along the southerly line of the street rather than along the center is rendered quite obvious from the fact that the starting point in the description was in the south line of the street Manifestly they could not commence at that point and follow the description in the deed, and still include one-half of the street The description of the premises, interpreted in the light of the surrounding circumstances, tends to show quite clearly that such was not the intent We think the court properly held that the plaintiff’s title extended only to the south line of the street

The only remaining question is, whether the court properly refused to permit the plaintiff to prove his damages by reason of the obstruction of the street in front of his premises while the defendant was laying its pipe. It was conceded that no unnecessary time was taken in performing the work, nor is it claimed that the work was improperly performed. The trustees of the village gave the defendant permission to lay its pipe under the street, and to make the excavation necessary for that purpose. The plaintiff had only an easement in the street The defendant, as the owner of the fee, retained the exclusive right to all mines, quarries, springs and earth, and the use of the land for all purposes not incompatible with the public easement. Robert v. Sadler, 104 N. Y., 229, 233; 5 N. Y. State Rep., 594; Holden v. Shattuck, 34 Vt., 336; Chamberlain v. Enfield, 43 N. H., 356. It also had the right to lay its pipes across or along the street for the purpose of conveying water to its mills. Dygert v. Schenck, 23 Wend., 446; Woodring v. Forks Township, 28 Penn. St., 355; Perley v. Chandler, 6 Mass., 454,457. Hence, the precise question is whether the defendant was liable to the plaintiff for interfering with the surface of the street while laying such pipe.-

It was said by Earl, J., in Callanan v. Gilman (107 N. Y., 365; 12 N. Y. State Rep., 21): “ The primary purpose of streets is use by the public for travel and transportation, and the general rule is that any obstruction of a street or encroachment thereon which interferes with such use is a public nuisance. But there are exceptions to the general rule born of necessity and justified by public convenience. An abutting owner engaged in building may temporarily encroach upon the street by the deposit of building materials. A tradesman may convey goods in the street to or from his adjoining store. A coach or omnibus may stop in the street to take up or set down passengers, and the use of a street for public travel may be temporarily interfered with in a variety of other ways without the creation of what in the law is deemed to be a nuisance. But all such interruptions and obstructions of streets must be justified by necessity. It is not sufficient, however, that the obstructions are necessary with reference to the business of him who erects and maintains them. They must also be reasonable with reference to the rights of the public who have interests in the streets which may not be sacrificed or disregarded.”

As the interference with the street in this case was temporary, necessary to the enjoyment of the defendant’s right, reasonable with reference to the right of the public, and was with the consent of the public authorities having charge thereof, we are of the opinion it was not a nuisance and that the court properly held that the plaintiff was not entitled to recover.

Judgment affirmed, with costs.

Hardin, P. J., and Merwin, J., concur.


text:
    Horace P. Hoyt and Edgar S. Hoyt, Resp’ts, v. John H. Cline, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    1. Rnpabian ownebs—Intebfebence with flow of stbeam. .
    Where an upper riparian proprietor while using steam in his mill collects the water of the stream in his pond, and detains it during the week days and discharges it in large quantities in the night and on Sundays, so that it cannot be used by the lower proprietor to propel his mill and machinery, and does so persistently for the purpose of injuring and destroying the latter’s use of the water, the lower proprietor is entitled to an injunction to prevent such improper use of the water.
    3. Same--Evidence.
    In an action to restrain such interference with the flow of the stream and for damages, the admission of evidence as to the manner in which defendant formerly used the water, to enable the court to obtain a complete history of the transactions between the parties, is not error prejudicial to defendant when limited to such purpose.
    3. Same.
    • Where defendant alleges as a counterclaim that plaintiff erected a dam higher than the one existing when he bought, evidence of directions of the common grantor when he owned both premises as to the height the dam should be built, and that plaintiff’s dam was not as high as the one then erected, is admissible.
    4. Same—Leading question.
    The court has the right, in its discretion, to permit a direct question, though leading, calling for an explanation of evidence drawn out on the cross-examination of a witness.
    Appeal from a judgment entered in Jefferson county on the decision of a special term, awarding the plaintiffs $200 damages for the wrongful acts of the defendant in interfering with the plaintiffs’ water rights, and perpetually enjoining the defendant from an improper use and interference with the water used by the plaintiffs in operating their mill and machinery.
    The court on the trial, in substance, found: That the defendant was the owner and in possession of certain premises on Flat Rock Creek, in the town of Alexandria, U. Y, upon which there was a saw-mill and grist-mill, and for the purpose of supplying and running the same with water the defendant maintained and kept a dam across the creek; that the grist-mill was run a portion of the time by steam power; that the dam had been kept by the defendant more than ten years and the water of the creek used by him; that below, and on the same stream, the plaintiffs were the owners and in possession of certain premises on which there was a sawmill and planing machine used and operated by the plaintiffs for sawing logs and planing for customers, run and operated by water from said creek; for that purpose plaintiffs kept and maintained a dam across the creek at or near their mill, and were entitled to the use of the water of the creek, in running and operating their saw-mill and machinery, as it would naturally flow after its use by the defendant in a proper and economical manner, there being no use made of the water by the other or intermediate owners of the land or water rights between the defendant’s dam and the plaintiffs’ dam; that the creek does not furnish sufficient water to run and operate the plaintiffs’ mills during the dry season of the year, but during the spring and other months there is sufficient water to supply plaintiffs in operating their mills after its proper use by the defendant, if allowed by the defendant to flow naturally after its use by him and not wasted.
    The court also in effect found that prior to May, 1861, Jason Clark was the owner and operated both the plaintiffs’ and the defendant’s mill sites and property; that while Clark was in possession of the defendant’s property, he conveyed by warranty deed to H. P. Hoyt the premises occupied by him,’ containing one and thirty-four one hundredths acres of land, with the right to flow as much of the land then belonging to said Clark as was then flowed by the dam on the premises conveyed; that in November, 1886, the plaintiff, H. P. Hoyt, conveyed by land contract to Edgar S. Hoyt an undivided one-half interest in said premises and assigned all claims for damages by an instrument in writing to the plaintiffs by the name of H. P. Hoyt & Son ; that subsequent to the conveyance by Clark to H. P. Hoyt, George W. Clark acquired title to the mill property occupied by the defendant, and by deed dated August 1, 1870, conveyed such property to Milton J. Howard, the deed containing the following condition: “Subject to the right of Horace P. Hoyt, his heirs and assigns, to flow so much of said seventy-eight one hundredths of an acre as will be flowed by the dam now erected at the lower saw-mill;” that through various mesne conveyances the premises were conveyed by Wayland Ford and others to the defendant Cline, which deed also contained the same condition as was contained in the deed from Clark to Howard; that in 1849, Jason Clark was the owner of both mill sites; that defendant’s dam and property had been for some time in existence and use at that time, and in 1849 Clark built a dam at the lower mill, on "what is now the plaintiff’s land, and erected the saw-mill where it is now; that in 1874 the plaintiffs dam was rebuilt and repaired on the site of the old dam, and no higher than the dam as built by Jason Clark; that the defendant’s mill is above the plaintiffs' about fifty-seven rods; that both mills were run by water until 1874, when defendant’s grantor put steam power in his mill; that defendant’s dam sets back about a mile and one-half, and holds-about fifty times as much water as plaintiffs' and when full will run plaintiffs’ mill nearly a week; that the plaintiff, Horace P. Hoyt, put circular saws in his mill in 1885 ; that both mills have always done and now do custom work chiefly.
    The court further found that before February, 1885, and the putting in of the circular saws, there was no trouble by reason of the manner of the defendant’s use of the water in the dam; that the defendant, after he became aware of the intention of Hoyt to put in circular saws, and after the same were put in, threatened to prevent Hoyt from using his saws by detaining the water and letting it down when he could not use it; that the water does not flow back from the plaintiffs’ premises to any greater extent than it did at the time the plaintiff, Horace P. Hoyt, acquired ownership of the lower mill property; that the defendant, between February 1, 1886, and February 22, 1887, frequently let water down in floods during the night time and on Sundays, drawing his pond down from one to three or four feet, and then during the day time held back the water and used his steam power; that in this manner he interrupted the plaintiffs’ use of the water power, and that this was done persistently and for the purpose of injuring and destroying the plaintiffs’ use of the water; ana that the plaintiffs have suffered damage by reason of the wrongful use by the defendant of the water at his mill in the sum of $200.
    The court held as. matters of law: “ 1. That the plaintiffs are entitled to the use of the water in their dam as it naturally flowed into the ■ same, interrupted only by the proper retention and use thereof by the defendant in the operation of his water power; 2. That the plaintiffs are entitled to judgment restraining the defendant from the wasteful use of the water power from his dam, and preventing and restraining him from retaining said water excepting for the purposes of the proper use of his mill, and also from discharging the water except for the proper use in running his mill, and to prevent actual injury to his property, and also enjoining and restraining him from holding back the water in his dam at all unless it be reasonably necessary for him to do so in order to profitably operate his mill, and also enjoining and restraining him from holding back the water in his pond for the purpose of accommodating his steam power, and also enjoining and restraining him, if the water be sufficient to run his mill without the steam power, then from using his steam power and holding back the water and then letting the water off rapidly without using it so as to relieve his mill or dam therefrom, and also enjoining and restraining the defendant from obstructing the flow of the water or detaining it for any other purpose than the reasonable use of it by the defendant for operating his mill; 3. That the plaintiffs are^entitled to judgment for damages and the costs of this action, which are awarded to the plaintiffs to be taxed.”

      H. Smith and Porter & Walts, for resp’ts; C. W. Thompson and Wayland F. Ford, for app’lt.
   Martin, J.

—The principal controversy in this case arose over two questions: first, whether the defendant wrongfully interrupted and improperly interfered with the plaintiffs’ use of their water power, by retaining the water in defendant’s dam during the day-time on week days, and then discharging it on to the plaintiffs’ premises in large and unusual quantities in the night-time and on Sundays,' when it could not be utilized by the plaintiffs in operating their mill and machinery; and second, whether the plaintiff Horace P. Hoyt had erected a dam that was higher than that which existed when he purchased the premises now owned by the plaintiffs, and thus overflowed the defendant's premises to a greater extent than they were overflowed by the water collected in the previous dam, or to a greater extent than he had a right to do. The former arose under the allegations of the complaint; the latter upon the counterclaim set up in the defendant’s answer.

As to the defendant’s counterclaim, the court found as a fact that the water did not flow back from the plaintiffs’ premises to any greater extent than it did at the time the plaintiff, Horace P. Hoyt, acquired the ownership of the lower mill property. If this finding is upheld, it follows that the defendant’s counterclaim was not established, and hence, he was not entitled to the affirmative relief asked for in his answer. We have carefully read the evidence bearing upon this question, and, while it was conflicting, it was sufficient to sustain the finding of the learned trial judge. As this was a question of fact, and as the finding thereon was fairly sustained by the evidence, there is nothing in this branch of the case which would justify us in disturbing the judgment.

Upon the second question, the court also found with the plaintiffs. It, in substance, found that between February 1, 1886, and February 22, 1887, the defendant, while using steam power to operate his mill and machinery, frequently collected the water of such stream in his pond, detained it during the week days and discharged it in floods into the stream during the night-time and Sundays, so that it could not be used by the plaintiffs to propel their mill and machinery below; and that he thus interrupted and materially interfered with the plaintiffs’ use of their water power ; that it was done persistently for the purpose of injuring and destroying the plaintiffs’ use of the water of such stream, and that the plaintiffs sustained damage by reason thereof in the sum of $200. The findings of the court upon this question were amply sustained by the evidence. Assuming the facts as found, it is quite manifest that the plaintiffs were entitled to the relief awarded. Merritt v. Brinkerhoff, 17 Johns., 306 ; Pollitt v. Long, 58 Barb., 33 ; Clinton v. Myers, 46 N. Y., 511; Bullard v. Saratoga Victory Mfg. Co., 77 id., 525 ; Thomas v. Brackney, 17 Barb., 654; Thurber v. Martin, 2 Gray, 394, 396; Chandler v. Howland, 7 id., 348, 350 ; Gould v. Boston Duck Co., 13 id., 451; Davis v. Getchell, 50 Me., 602 ; Gerrish v. New Market Mfg. Co., 30 N. H., 478, 483.

The court adopted the correct rule of damages, and the proof justified the amount awarded.

But it is claimed by the appellant that the court erred in admitting evidence as to the manner in which the defendant used the water prior to the time when such wrongful acts were alleged in the complaint to have been commenced and subsequent to the commencement of the action. An examination of the appeal book discloses that this evidence was admitted only for the purpose of obtaining a correct history of the whole transaction between the parties, and of enabling the court to determine whether the defendant’s acts were such as would justify the court in granting the injunction sought. The court expressly held that the plaintiffs could only recover such damages as were sustained between the dates alleged, and that no amendment of the pleadings would be allowed. The admission of this evidence, when limited to the purposes mentioned, constituted no error that was prejudicial to the defendant or that would require a reversal.

Nor do we find any error in the admission of the evidence of the witness Jackson Briggs to the effect that Jason Clark, the then owner and common grantor of the parties, went down with him and showed him how high to build the rack and attach it to the sill so that the flood-wood would run over the dam before going into his rack. Clark was then the. owner of both premises, built the dam where the plaintiffs’ dam now stands, and transferred to the plaintiffs the right to maintain a dam equal in height to the one then erected by him. This evidence tended to show that the plaintiffs’ dam was not as high as that erected by Clark, and, hence, that the waters collected in it would flow back to a less extent than from the old dam. We think the evidence was admissible.

The plaintiffs were also permitted to prove by the witness Briggs, that while Clark owned both mills the water was used in such a manner at the upper mill as to enable it to be used and husbanded for the purpose of running all the mills, the lower as well as the upper. The defendant objected to this evidence on the ground that it was incompetent and leading ; “ the witness should describe the manner of using the water.” This objection was overruled and the defendant excepted. We do not think the exception was well taken. The evidence was admissible in explanation of evidence drawn out upon the cross-examination of the witness, as to the manner in which these mills were used by Clark while he was the owner of both, and the court, in its discretion, had the right to permit a direct question, although leading.

We think the findings of the court were sustained by the evidence ; that the judgment awarded was proper; that there were no rulings that require a reversal, and that the judgment should be affirmed.

Judgment affirmed, with costs.

Hardin, P. J., and Merwin, J., concur.


author: Martin, J. Merwin, J., (dissenting.)

text:
    James E. McCabe, Resp’t, v. John T. Goodfellow, Treasurer, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    1. Associations—What constitutes.
    Proof that a meeting of more than seven persons was held; that it was resolved to form an association, its name agreed upon, a constitution adopted and signed, a president and other officers appointed, and that the association commenced and continued the business which was the purpose of its organization, is sufficient to justify a finding that it was an unincorporated association, consisting of seven or more persons, and within the provisions of §1919 of the Code.
    2. Same—Action by mbmbee fob sebvicbs.
    The fact that a person who has performed services under its employment is a member of the association, is not a bar to his maintaining an action for such services. (Meewin, J., dissenting.)
    3. Attobneys—Action fob sebvicbs—Pasties.
    Where there is an arrangement between the members of a legal firm, that each shall attend to specified classes of work 'and receive the pay therefor, either may maintain an action for the services performed by him, and the other partner is not a necessary party thereto.
    Appeal from a judgment entered in Oneida county, April 3, 1890, for $1,883.90 on the report of a referee.
    The plaintiff, in his complaint, alleged that the Law and Order League of the town of Kirkland was a voluntary, unincorporporated association, consisting of more than seven members; that it was organized for the purpose of suppressing the sale of intoxicating liquors in the town of Kirkland, and to prosecute persons violating the excise law residing in that town; that the defendant, John T. Goodfellow, was treasurer of said league; that the defendant was indebted to the plaintiff in the sum of $3,000 for services rendered for said league as an attorney and counselor at law, between March 1, 1888, and the first day of June, 1889, and demanded judgment for that sum.
    The answer contained a denial, and also contained allegations that such league was not a permanent organization, and not “ incorporated ” within the spirit, meaning and intent of § 1919 of the Code of Civil Procedure; that the alleged services were rendered by Williams & McCabe, and not by the plaintiff; that Elliott S. Williams was a necessary party plaintiff; that the plaintiff received certain amounts from the settlement of cases in which he acted as attorney; that most of the services performed were rendered for and upon the retainer of the overseer of the poor of the town of Kirkland; and that the plaintiff was a member of such association and of its committee.
    The referee found that the Law and Order League of the town of Kirkland was an unincorporated association, consisting of more than seven members; that John Goodfellow, the defendant, was treasurer of such association; that the objects.of the association were to give moral support to the village and town officers in the discharge of their official duties, and to see that they were faithful in enforcing the village and town laws, especially those regulating the traffic in intoxicating drinks; that the league, through its officers, duly authorized agents and committees, retained the plaintiff, who was an attorney and counselor at law, to perform services and bring actions for penalties arising under the excise law of the state; that, under such retainer, the plaintiff performed services outside of litigated business amounting to thirty-five and one-half days, which were worth three hundred and fifty-five dollars; that under such retainer he also brought and prosecuted ten actions to recover penalties fox alleged violations of the excise law; that the services rendered in said actions, including disbursements, were worth the sum of fifteen hundred dollars; that on or about May 27 1889, the league refused to recognize any liability to the plaintiff upon its retainer for services rendered; that the plaintiff thereupon gave notice that he should have no more to do with the cases, and that his employment then ceased; that the plaintiff received, to apply on his services, the sum of one hundred and seventy-five dollars, leaving unpaid thereon the sum of sixteen hundred and eighty dollars, which was due and payable.
    As a conclusion of law, the referee held that the plaintiff was entitled to recover of the defendant sixteen hundred and eighty dollars, and directed judgment accordingly, with costs and disbursements to be taxed.

      C. D. Adams, for app’lt; S. M. Lindsley, for resp’t.
   Martin, J.

The validity of the judgment in this case is sought to be impeached on the grounds: 1. That the findings of

the referee were not sustained by the evidence; 2. That the referee erred in receiving evidence of the value of the plaintiff’s services; and 3. That he erred in denying the defendant’s motion for a nonsuit.

A careful reading of the appeal book discloses that there was a severe conflict in the evidence upon the question whether the defendant was employed by the Law and Order League to perform the services for which he recovered in this action. The evidence of the plaintiff was that he was thus employed, and the documentary and other evidence introduced by him on the trial tended to corroborate his testimony. The evidence introduced by the defendant tended to show that there was no such employment, or at least to show that the plaintiff agreed to look to the town of Kirkland for compensation for his services, and not to the league. The referee, upon this evidence, has found for the plaintiff. His finding is fairly sustained by tlie proof, and should, we think, be upheld. Baird v. Mayor, etc., of City of N. Y., 96 N. Y., 567.

If we are correct in concluding that the evidence was sufficient to justify the referee in finding that the services performed by the Ílaintiff were rendered in pursuance of an employment by the iaw and Order League, it follows that the evidence of the expert witnesses, as to the value of the services performed, was properly admitted. The objection to this evidence was that no employment of the plaintiff by the defendant, or liability on the part of the defendant, was shown, and that it was incompetent As the proof tended to show that the plaintiff was employed by the league, and that it was liable for his services, we think this evidence was clearly competent.

The only other question we are called upon to consider, 'is whether the referee properly refused to grant the defendant’s motion for a nonsuit. The grounds of this motion, briefly stated, were : 1. That the Law and Order League was not such an association as is contemplated in § 1919 of the Code of Civil Procedure ; 2. That there was no evidence that it ever employed the plaintiff or authorized any person or persons to do so; 3. That as the plaintiff was a member of the league, he could not maintain this action; and 4. That the services were performed by the firm of Williams & McCabe, and the action could not be maintained in the plaintiff’s nama In examining the question of the propriety of the referee’s ruling, we will examine the several grounds, upon which the motion was based, in the order in which they are stated.

In. this' case the proof disclosed that a meeting was held; at such meeting it was resolved to form an association; the name of the association was agreed upon; a constitution was adopted; it was signed by the members; a president and other officers were subsequently appointed, and the association commenced and continued the business which was the purpose of the organization, with energy and persistence, until the time of the commencement of this action. We think the evidence was sufficient to justify the referee in finding that the Law and Order League was an unincorporated association consisting of seven or more persons, and within the provisions of § 1919 of the Code of Civil Procedure. National Bank v. Van Derwerker, 74 N. Y., 234, 239 ; Ebbinghousen v. Worth Club, 4 Abb. N. C., 300; Flagg v. Swift, 25 Hun, 623.

Nor do we think the appellant’s claim that the association never employed the plaintiff, nor authorized any person to do so, was sustained by the evidence. On the contrary, as we have already held, the evidence fully sustained the finding that the association, through its duly authorized agents and committee, retained the plaintiff to perform the services and bring the suits for which a recovery was had herein. Indeed, the evidence tends quite strongly to show that such employment was by the association, or at least was ratified by it We, therefore, find nothing in the second ground that would have justified the referee in granting the defendant’s motion.

That the plaintiff was a member of such association was, upon sufficient evidence, found by the referee, but he refused to find that he was a member of a committee of such association. We' do not think the fact that the plaintiff was a member of the association was a bar to his maintaining an action for his services. Westcott v. Fargo, 61 N. Y., 542; Saltsman v. Shults, 14 Hun, 256; Fritz v. Muck, 62 How. Pr., 73; Sander v. Edling, 13 Daly, 238 ; Winter v. Hamm, 5 Civ. Pro., 195.

But it is said that the services for which the plaintiff recovered were performed by the firm of Williams & McCabe, and hence, that the action could not be maintained by the plaintiff without joining Williams as a party, or acquiring title to his interest in the claim. The evidence does not sustain this contention. While it was shown that the actions were brought in the name of Williams & McCabe, it was also proved that the arrangement between the members of that firm was, that a certain class of the business coming to their office should be done by one member of the firm and that he should receive the pay therefor; that another class of business should be performed by the other, and he receive the fees therefor, and that in the business in question the plaintiff was the only person interested. Under these circumstances we think the action was properly brought in the plaintiff’s name. These considerations lead us to the conclusion that the referee properly denied the defendant’s motion for a nonsuit

We think the decision of the referee was fairly sustained by the evidence, that there are no errors in his rulings that require a reversal, and that the judgment should be affirmed.

Judgment affirmed, with costs.

Hardin, P. J., concurs.

Merwin, J., (dissenting.)

—Under § 1919 of the Code an action in this form can be maintained only upon a cause of action “ for or upon which the plaintiff may maintain such an action or special proceeding against all the associates.” In the present case, I doubt very much the right of the plaintiff to make all the associates personally liable, for that is the effect of his claim. Ho such liability was in contemplation. The plaintiff was one of the associates, and is chargeable with knowledge of the situation. The funds were to be raised by voluntary contribution or subscription. The plaintiff himself seems to have been a subscriber to a guarantee fund. The special or central committee had no authority to pledge the credit of all who signed the constitution.