author: Vah Brunt, P. J.

text:
    Edward B. Babcock, App’lt, v. The Schuylkill & Lehigh Valley R. R. Co., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    Corporations — Railroad — Stockholders— Consolidation—Exchange OF CERTIFICATES.
    Plaintiff subscribed for 3,100 shares of the capital stock of the P. & Isf. Y. Railroad, and paid ten per cent of the amount of his subscription. Thereafter the P. & N. Y. Railroad was consolidated with the defendant, under an agreement that the stockholders of the former company were to receive thé consolidated stock in place of its stock. Held, that the plaintiff was not entitled to receive certificates of stock from defendant on account of his subscription until he had paid the balance due upon such subscription, and could produce evidence of that fact,
    Appeal from judgment of special term dismissing complaint. Thos. G. Shearman, for app’lt; B. S. Harmon, for resp’t.
   Vah Brunt, P. J.

—This action was brought to compel the issue by the defendant of 1050 shares of its capital stock to the plaintiff. * It appeared upon the trial that the plaintiff at the time of the commencement of this action was and now is a resident of this state and that prior to the 8th of February, 1887, the Pottsville ¿c 2ST. Y. Railroad Company had been duly organized under the laws of Pennsylvania; that in the articles of association of said railroad company the plaintiff appeared as the subscriber for 2100 shares of the capital stock of said railroad company of the par value of fifty dollars per share, but no certificate or other evidence of the right of the stockholders of said company to its capital stock was ever issued to the plaintiff or to any stockholder of the company ; that the defendant prior to said 8th of February, 1887, was a corporation duly organized under the laws of the state of Pennsylvania; and on said day the Pottsville & 1ST. Y. Ry. Co. merged and consolidated its capital stock, franchises and property with and into the capital stock, etc., of the defendant in accordance with the provisions of the laws of the state of Pennsylvania, and the defendant as such consolidated corporation is duly organized and existing under the laws of said state with a capital stock of $2,000,000 divided into 40,000 shares of the par value of fifty dollars cash.

The agreement of merger between the two companies contained among other provisions the following:

Eighth. That each stockholder in either of the two corporations which are to be hereby consolidated, upon surrendering to the treasurer of the consolidated company any evidence he may possess, by certificate or otherwise, of his right to stock, if he have any such evidence, or, if no such evidence has been issued to him, then upon due demand being made upon the treasurer, shall be entitled to receive from the treasurer of the consolidated company .a certificate for the capital stock of the consolidated company in the proportion of two shares in face value of Pottsville & New York Railroad Company stock for one share at the same value, in the consolidated comany, and shall receive, for each share in the Schuylkill & Lehigh Yalley Railroad Company, share for share in the consolidated company. That is to. say, an amount equal to one-half in face value to that held by him in the Pottsville & New York Railroad Company, and to an amount equal in like value to that held by him in the Schuylkill & Lehigh Yalley Railroad Company, or to which he was entitled in the former companies respectively.”

The plaintiff has not paid nor offered to pay more than ten per cent of the par value of his alleged subscription to 2,100 shares of the capital stock of the Pottsville & N. Y. Railroad Company ; and there was no proof that the plaintiff prior to the commencement of this action, had ever demanded from the defendant or any of its officers any certificates of the capital stock of the defendant

It further appeared upon the trial that the defendant refuses to issue any shares of its capital stock to the plaintiff or to recognize him as a stockholder.

Upon .the termination of the plaintiff’s case the counsel for the defendant moved for judgment on the proofs and pleadings upon the following grounds:

I. That no demand had been proved.

IL That plaintiff had not proved that he continued to be for five years after his alleged subscription even the holder of said subscription.

IIL That he had not proved that he was. a shareholder in the Pottsville & New York Eailroad Company at the time of this consolidation, or that he had ever paid, or offered to pay, either to the Pottsville & New York Eailroad Company or to the defendant, more than ten pereentum of the face value of his said alleged subscription.

The court granted this motion, and from the judgment tnereupon entered this appeal is taken.

It is urged upon the part of the appellant that it being admitted by the pleadings that the defendant refuses to issue any stock to the plaintiff or to recognize him as a stockholder, a demand was superfluous.

It may be that the admission contained in the pleadings does not bear the broad interpretation put upon it by the plaintiff; and that the refusal refers to the time of the verification of the answer in which it is contained. But it is not necessary to consider this proposition because the judgment can be supported upon other grounds.

It seems to us clear that the plaintiff was not entitled to receive this stock from the defendant until he had become entitled to receive the.stock from the Pottsville & N. Y. Railroad Co.

It is claimed as well settled law, both of Pennsylvania and New York, that a subscriber to stock in a railroad corporation whose subscription is accepted by that corporation becomes by that act a stockholder to all intents although he has only paid ten per cent of his subscription; and that he is entitled to his certificate, and ' to vote and otherwise to act upon perfectly equal terms with all other stockholders, even though the others have paid up in full.

What the law of Pennsylvania may be upon this subject is not material to the consideration of this appeal, because such law has not been either proven or pleaded. But we have searched in vain for any adjudication in the courts of this state which supports any such conclusion.

We are referred to the case of The People v. Albany & Susq. R. R. Co., 1 Lans., 308; affirmed 5 Lans., 25, but fail to find any such proposition established by that adjudication.

Eeference is also had to the case of Rutter v. Kilpatrick, 63 N. Y., 604, but no such proposition is established by that case, because it appears from the record in that case that the subscriber had paid into the corporation the amount subscribed, and all that was decided was that the relation of stockholder was established by the subscription and payment, and did not depend upon the issue of the certificate or other evidence of such right by the corporation.

Attention is also called to the case of Buffalo & N.Y. City Rail road Co. v. Dudley, 14 N. Y., 336-346. In that case the question involved was whether an agreement to take a certain number of shares of the capital stock of the railroad company subscribed previously to the incorporation of the company creates a promise express or implied to pay. for the shares, for the recovery of which the company may maintain an action against the subscriber.

It is true that it is stated in the opinion that when the defendant had subscribed his name and paid his five per cent the effect was to make him a stockholder and the owner of twenty shares, subject to the forfeiture prescribed. But it is also expressly recognized that his title to the stock does not become complete, and he entitled to receive a certificate therefor, until the payment of the subscription, and that his interest therein might become forfeited by non-payment of said subscription.

In the case of Spear v. Crawford, 14 Wend., 20, the same doctrine was enunciated, the question involved being whether a party who subscribed for a certain number of shares of stock was liable to the creditors of the company to the nominal amount of the stock of the said company subscribed by him, although he had not paid in any part of his subscription or done any act whatever as a stockholder; and it was held that because of the mere fact of subscribing the corporation might compel such subscribers to pay for their stock; and that public'policy required that they should be considered stockholders so far as to be compelled to meet the debts of the corporation. The court say after citing certain cases: “ It is true that none of these cases decide the precise point that the mere fact of subscribing to stock of an incorporated company constitutes such subscriber a stockholder.

“ But they do decide that such subscription puts it in his power to become a stockholder in the broadest and most unqualified sense of the term by compelling the corporation to give him the legal evidence of his being a stockholder,- upon his complying with the terms of the subscription ; and on the other hand that it puts it in the power of the corporation to compel him to pay for the shares subscribed by him and thereby to become a stockholder to that amount Neither party therefore can escape from the obligations created by the subscription without the consent of the other.”

It seems to us clear, therefore, that in order to entitle the plaintiff to claim full paid certificates of stock from the defendant he was bound to show that he was entitled to such certificates from the corporation to which he was a subscriber. It is true that the consolidation agreement provided that every stockholder in either corporation upon surrendering to the treasurer- of the new company his certificate of stock if any, and without such certificate if none had been issued to him, should receive shares in the new company, in exchange for shares in the old company in the proportion of one share of stock in the new company for two shares in the old company. But it is evident that the clause in the agreement in regard to the rights of the parties who did not receive -certificates of stock contemplated the existence of the fact that such parties were entitled to receive such certificates from the Pottsville & N. Y. Ry. Co., but that they had not been issued to them.

Now it. is clear that the plaintiff was not entitled to receive any certificate of shares in the Pottsville & N. Y. Railroad Company until he had paid his subscription. He had no shares to exchange, and the language is that he should receive shares in the new company in exchange for his shares in the old company. Under these circumstancés, as he had no shares in the old company to exchange, it is difficult to see how the barter could be effected.

The claim that no payment was necessary to make the subscription valid, but the fact that the corporation had been formed on the assumption that the Pottsville & N. Y. Company had been duly organized, is presumptive proof of due payment, cannot prevail. There is nothing to show but that the Pottsville Company might be duly organized without having all its capital stock paid up in full, it having the right to collect such subscription from its stockholders, and its creditors having the power to enforce such right.

The point as to the failure of proof as to payments made by the associates of the plaintiff in the Pottsville Company is of no avail because that question was entirely immaterial. Simply because A. gets whát he is not entitled to gives no right to B. to claim in a court of justice that the same fraud should be perpetrated in his behalf.

Neither is the claim of the plaintiff that, although he has paid his ten per cent, he gets nothing. He was entitled to nothing until he paid the balance of his subscription. He had subscribed for a certain number of shares of stock, and agreed to pay the balance. He was not entitled to the certificates or evidence of ownership of those shares until he had paid the balance, and, therefore, there was nothing which the court could decree in his favor.

Upon the whole case, we are of opinion that the case was correctly decided in the court below and that the judgment should be affirmed, with costs.

Daniels and Lambert, JJ., concur.


source: Caselaw Access Project

author: Barrett, J. Patterson, J.

license: Public Domain

text:
    In the Matter of the Judicial Settlement of the Account of George Green, as Executor of the Last Will and Testament of John Green.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    Wills—Construction of—Legatees—Limitation.
    Testator devised to his executors one-half of his estate for the use of the wife of his son during her life, “ and upon her death, I give and devise the same to and among the lawful descendants of my said son in the shares in which they would inherit from him under the laws of the state of New York.” Held, that the use of the word “ descendants " as distinguished from “ heirs” was conclusive of testator’s intention to limit the devise to the issue of his son by his wife, who was living at the date of the will, to the exclusion of children of his son by a second wife, to whom he was married after the death of testator.
    (Van Brunt, P. J., dissenting.)

      Appeal from the decree of the surrogate's court upon the judicial settlement of the executor’s account.

      Rollin M. Mogan and Eugene S. Ives, for app’lt: Scott Lord, for resp’t.
   Barrett, J.

—But a single question is presented by this appeal, and that question arises under the fifteenth clause of the will of the testator. This clause is as follows:

“ I give, devise and bequeath to my executors, the survivors and survivor of them and their successors, the other half of my real and personal estate, for the wife of my son, George Green, to invest and keep invested, the proceeds nf any part thereof which shall be sold, to collect and receive the rents, income, interest, issue and profits of such one-half, and to apply the same to her use during her life; and upon her death, I give and devise the same to and among the lawful' descendants of my said son, George Green, in the shares in which they would inherit from him under the laws of the state of New York.”

The parties have agreed upon the facts proved upon the hearing below and those facts are as follows:

“The will was dated and executed December 1, 1885. At that time George Green, the testator’s only son, was married to Susan M. Green, who was then alive. She died in 1886. Testator died in February, 1888. At the time of testator’s death John Green, an infant son of George Green and Susan M. Green, the first wife of George Green, was in being. After testator’s death George Green married again, and at the date of the accounting two children of George Green, born of his second wife, were living, the infants, George H. Green and Leroy D. Green, and also the one child, John Green, by the first wife, born before the death of the testator.”

The question in dispute arises from the claim of the children of the second marriage to share with the child of the first marriage. The learned surrogate confirmed the report of a referee .who held that, upon the death of John Green, the devise and bequest of the. one-half of his real and personal property took immediate effect and vested in the child of the first maraiage. To this ruling the special guardian of the children of the second marriage duly excepted, and from the decree based upon such ruling this appeal is taken.

We think the referee and the surrogate were right in the construction given to the clause of the will in question. The use of the word “descendants,” as distinguished from “heirs,” is here conclusive of the testator’s intention. That word would seem to have been used advisedly, for it harmonizes with the gift over to take effect upon the death of the son’s wife, not upon the death of the son. It thus contemplates the possibility of the son’s outliving his wife, and it declares as plainly as language can that upon her death the estate should vest in those who had issued from that son. No person can be the heir of a living person, but a person, whether living or dead, may have descendants. Consequently the expression was apt whether the testator’s son died before or after his wife. The period of distribution here being, as we have seen, the death of the son’s wife, the beneficiaries included all of the son’s children who should come into being before such period.

At that period, however, the estate absolutely vested, Tucker v. Bishop, 16 N. Y., 404, and it necessarily so vested in those then answering to the description of “ descendants.” Indeed, even the use of the word “ heirs ” would not have affected this construction if the will had expressly provided for distribution in the lifetime of the son; and it is even doubtful whether the use of- the word “ heirs ” in the will as it stands would have affected the result. For it has been held that a devise to the heirs of A., who is stated in the will to be now living, would indicate with sufficient certainty the persons intended. This description would plainly refer to such persons as were at the time heirs apparent to A. ; those who would be his heirs if he should then die. Heard v. Horton, 1 Den., 165. And in Campbell v. Rawdon, 18 N. Y. 416, this language was used: “As no one can be the heir of a living person, and as the persons who will be heirs are uncertain while the ancestor lives, a devise to them as heirs, in the proper sense of the term, it is said, cannot take effect, and is therefore void. This is obviously so if the devise be of a present estate, which must vest, if ever, as soon as created. There being no determinate object of the bounty, or ascertained person to take the devise, the attempt to create the estate, of necessity, fails. It is for this reason that limitations in wills in favor of the heirs of a living person, and recognized in the will as living, have been construed to mean appointments in favor of the children of the ancestor named, or his descendants, or the particular persons who would be his heirs if he were then dead.”

The appellant relies mainly upon the case of Cushman v. Horton, 59 N. Y., 149. There the bequest over was “to the lawful heirs of my brother Medad H. Frisbie in equal proportions," and it was held that this legacy did not vest until, upon the death of Frisbie, it was determined who were his heirs. This decision rested upon the entire absence of any circumstances disclosed in the will in favor of the testator's having used the word “ heirs ” in a special and limited sense. “ Unless, therefore,” said Johnson, J., “the court is prepared to say it will determine such a question upon mere conjecture, it must necessarily hold that the testator has employed the language in question in its primary and legal sense.” It was conceded that the courts had been astute to find grounds to sustain 'the secondary interpretation of the word “ heirs ’’; that is, its use in the sense of “ heirs apparent,” in order to carry out what was indicated to be the intent of the testator.

Ulustrations were there given of cases where it was provided that the persons designated as heirs should t&ke during the lifetime of the persons whose heirs they are called, or where, as here, provision had been made in the will for the person to whose heirs the devise was made. In that case, Medad H. Frisbie was not named or referred to in any other part of the will, and no provision was therein made for him. It was thus a naked bequest to the legal heirs of a designated person, and it was held that thus a local interest was created in the exact form, in which the testator had expressed himself. The reasoning in that case thus fully supports the construction given to the clause of the will under consideration. George Green, the son, was here adequately provided for by the bequest of one-half of the estate. And the word descendants,” as distinguished from the word “ heirs,” was selected to express his father’s intention with request to the vesting of the other one-half.

We think, therefore, that the decree of the surrogate was right, and should be affirmed, with costs to both parties, payable out of the fund.

Yak Brukt, P. J., dissents.

Patterson, J.

—I concur in the affirmance of the surrogate’s decree. The time of the vesting of the gift over of the one-half of the residuary estate was, by the express terms of the will, at the death of the testator’s daughter-in-law and not that of his son. She having died during the testator’s lifetime, and the trust estate in the executors never having arisen, the title vested in the descendant or descendants of the testator’s son, then in being. McLean v. Freeman, 70 N. Y., 85; Campbell v. Rawdon, 18 id., 412. The appellant’s counsel admits that, to construe the residuary clause as he does, the words “ upon her death,” must be eliminated from it. To do so would be to expunge that which is the most important factor of all in the solution of the pending question. It was evidently the intention of the testator, when the will was executed, to fix that event as the fact upon and the time at which the ultimate interest or estate in the one-half should vest in possession, and the court will not arbitrarily adopt another contingency or another time simply because in the light of subsequent events it thinks that if the testator had anticipated them, he would have made a different disposition of his property. If anything could be spelled out of this will in the light of surrounding circumstances, which indicated that the testator intended to postpone the vesting of the estate until the death of the son, we would be very glad to find it and prompt to act upon it.' Nothing is really claimed to have that effect, but the use of the plural “ descendants ” and the gift over in shares according to the statute of New York.

It cannot be inferred from this that the testator contemplated a second marriage of his son and issue of that marriage. He survived his daughter-in-law (for whom the life interest was designed) more than two years and made no change in his will. We are not to presume that he did not understand what would be the legal effect of this fifteenth clause after the death of his son’s first wife; on the contrary he is to be regarded as knowing it, and he having made no alteration in that clause, the construction given by the surrogate and the referee was right. -

Decree of surrogate affirmed, with costs to both parties payable out of the funds.


author: Bartlett, J.

text:
    Harriet G. Cootey, Resp’t, v. Julia A. Chapman et al., Executors, App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    Principal and agent—Evidence to establish existence op agency.
    Plaintiff made a claim of $18,870 against the executors for services alleged to have been rendered by her husband in the care and management of the estate for ten years prior to testator’s death, and that he had acted as her agent in rendering the same. No evidence was introduced to show that plaintiff had ever employed her husband as agent for the estate, or had authority so to do, but it was shown that there were a large number of judgments against her husband, from which his motive of having her prefer the claim appeared. Held, that the agency of plaintiff’s husband was not established and that she was hot entitled to recover.
    Appeal from judgment for plaintiff entered upon the report of a referee.

      Edward B. Whitney, for app’lts; George G. Reynolds, for resp’t.
   Bartlett, J.

—The plaintiff in this case made a claim of $18,-870 against the executors of Greorge M. Chapman for services alleged to have been rendered by Philip I. Cootey, the claimant’s-husband, in the care and general management of the estate of Mr. Chapman from Jane, 1876, to August, 1886. The claim was referred under the statute, and upon the report of the referee j udgment was entered in favor of the plaintiff for $587.94. Notwithstanding this great difference between the claim and the recovery,. I am satisfied after reading through all the testimony contained in the appeal book that the plaintiff should not have- recovered anything at all.

The plaintiff’s claim is based on the tneory that the services-rendered to Mr. Chapman by her husband were performed by him as her agent This pretended agency was the merest fiction. The wife carried on no business in her own name or otherwise, and it is apparent from the testimony of Mr. Cootey himself that he was to all intents and purposes in everything which he did for Mr. Chapman, his own master and the principal instead of an agent It is true that in 1876, at the outset of his employment,, he did tell Mr. Chapman that he was acting as his wife’s agent, and he wrote a letter with reference to the construction of certain houses, which he signed “Philip I. Cootey, agent for his wife.” But it also appears that Mr. Chapman objected to this use of the-wife’s name, saying, “ I do not object to the agreement between you and your wife that she shall take what comes to her in that-way for "your services. I have no objection that she shall have a house for your services; but I object to her name appearing in any correspondence or in anything we have to do with each other in the future. I want you to address me and I address you.” Mr. Chapman also at this time declared that he could not do any business with Mr. Cootey if there was to be a woman’s name in the matter, and Mr. Cootey says that he had to drop his wife’s name in order to continue on with him. From that time during the ten years over which the services extended, Mrs. Cootey’s name does not appear ever to have been mentioned again between Mr. Cootey and Mr. Chapman. All the bills were rendered in the husband’s name, and no mention of the wife is to be found in the correspondence between Mr. Cootey and Mr. Chapman.

The purpose of the husband in pretending to be the agent of his wife and proposing at the beginning that her name should be used in his transactions with Mr. Chapman, is perfectly plain. There were a large number of deficiency judgments against him, and he wanted to avoid paying them. But a real agency is not established by the proof. The relation of employer and employee never in fact existed between the wife and the husband. He was not her agent in any business, for she carried on no business; and to allow her to recover in this suit would be to permit an utterly fictitious assumption to overcome the facts of the case. Persons cannot set up the relation of principal and agent simply by calling themselves principal and agent Here it would be against the whole tenor of the evidence to hold that Mr. Chapman supposed that he was dealing with Mrs. Cooty as the real party on interest through the agency of her husband. He had utterly refused to do anything of the kind, and the only acquiescence on his part that can be inferred from what was said between him and Mr. Cootey amounts merely to an expression of indifference as to what might be agreed upon between the wife and the husband in respect to the disposition to be made of whatever property Mr. Cootey might receive by way of compensation for his services,

I think the conclusions reached by the referee so far as those conclusions are favorable to the plaintiffs, are against the evidence, and that for this reason the judgment should be reversed.

Van Brunt, P. J., and Barrett, J., concur.


author: Van Brunt, P. J.

text:
    Lyman P. French, App’lt, v. Brush-Swan Electric Light Company, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    1. Broker—Purchaser—Commissions.
    The defendant was the owner of certain electric light processes or appliances, the exclusive right to use which it was desirous of selling, and it addressed a letter to plaintiff, hy which he was authorized to sell the same. He procured a purchaser therefor, on condition that the process after a test, should he found to do as represented. The battery employed failing to come up to representations, the purchaser refused to complete the purchase. Held, that the plaintiff had not produced a purchaser ready, willing and able to purchase, and was thérefore not entitled to commissions.
    3. Same—Subject oe sale—No guaranty oe pereection.
    In such case the question as to the failure of the battery to work, was entirely immaterial with respect to defendant’s liability for commissions as in the contract of employment there was no guaranty by defendant that the battery would work.
    Appeal from judgment entered upon decision after trial before the court without a jury.

      W. S. MacFarlane, for app’lt; Evarts, Choate & Beaman (W. G. Wilson, of counsel), for resp’t.
   Van Brunt, P. J.

—It may not be at all necessary to add anything to the opinion of the court below; but in .view of the argument made by the counsel for the appellant, it may be proper to-emphasize one or two points adverted to in said opinion.

It is claimed that the plaintiff having been employed by the-defendant to effect a sale of the rights mentioned in the complaint, and having produced to his principal a customer who was. at all times able, ready and willing to purchase for the price and upon the terms fixed by and satisfactory to the principal, is-entitled to recover his commission.- If this proposition were borne out by the facts established by the evidence, undoubtedly the plaintiff might recover. But upon an examination of the-case it will be seen that there is one important element assumed in this proposition which is not established by the evidence.

The defendants were the owners of certain electric light pro- ' cesses or appliances, the exclusive right to use which they were desirous of selling, and they addressed a letter to the plaintiff by which he was authorized to sell the exclusive right to use these appliances in a certain territory for the sum of $150,000. It appeared that subsequent to this time the plaintiff procured certain parties to enter into a conditional contract, whereby the parties produced should have the option to purchase these rights for $150,000, after it had been clearly demonstrated by actual experiment that the process would do that which it was represented to do. The battery employed failing to come up to the representations-was the sole cause of the non-completion of the sale, the parties, produced by the plaintiff refusing to complete the purchase upon that ground.

The contract of the defendants with the plaintiff was, that he was to effect a sale of these rights, and, in order to entitle himself to compensation as for a fulfilment of the contract, he was. bound to produce some person ready and willing and able to-purchase. This the plaintiff has not done. All that he produced were parties willing to purchase conditionally, and the condition not being fulfilled, they were not willing to purchase.

In the employment of the plaintiff there was no guaranty as to-the sufficiency of these appliances. He was simply to sell the right to use them. He did not sell, and it is immaterial what may be the cause. This right to compensation was not established till he effected a sale.

The question as to the failure of the battery to work, which was the cause of the refusal of the parties to purchase, was entirely immaterial. In the contract of employment, as already stated, there was no guaranty by the defendants that the battery .would work. The circular to agents issued by the defendants, which contained a description of these machines, in no wise altered the question. It was a representation by the defendants, it is true, of what they claimed their machines would do; but a person accepting a commission to sell these machines, was not guaranteed, bv reason of this circular, that the machines would da that which the circular represented. Consequently the failure of the proposed purchaser to take because not satisfied with the machines, put an end to any claim for commissions which the producer of the proposed purchaser might attempt to establish.

We think, therefore, that the judgment was correct, and should be affirmed, with costs.

Barrett and Patterson, JJ., concur.


text:
    Nicot J. Dovale, Resp’t, v. Bernard L. Ackermann, Jr., et al. App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    Estoppel—Admissions—What constitutes.
    Plaintiff advanced money to a firm to which defendant formerly belonged, and asserted a claim against defendant on the ground of such partnership. Defendant denied the liability, but promised to repay the money in monthly instalments of $100 each, and made several such payments. He then refused to make further payments unless plaintiff would sign a paper admitting that defendant was not legally obligated to pay the same; and that his promise of payment was purely voluntary, and that plaintiff would assert no claim against him. The plaintiff signed the paper, and the payments were continued. Held, that plaintiff was estopped by the writing from afterwards asserting a claim against defendant.
    Appeal by defendants from judgment entered upon the verdict of a jury.

      Coudert Bros. (Frederic R. Coudert and John N. Lewis, of counsel), for app’lts; James M. Lyddy, for resp’t
   Bartlett, J.

—It seems to me that the plaintiff in this case is estopped by the admissions contained in her letter of September 3, 1885, and by the receipt of the considerable sum of money which was paid on the faith of those admissions, from maintaining any action against Bernard L. Ackermann, Sr., on the ground that her loan was made to a firm of which he was a member.

The plaintiff sought payment from him upon the theory that he was a partner with his sons in the firm which received her money. He repudiated any such liability, but avowed his willingness to make good to her the amount of the loan by paying $100 a month. After making a number of these monthly payments, he seems to have been apprehensive that she might renew her original claim against him, based on the allegation of partnership ; and accordingly he drafted the letter of September 3, 1885, ana declined to pay her anything more unless the plaintiff signed it. This she did, and Mr. Ackermann, Sr., went on paying her $100 a month until May, 1886, when, as he says, he ceased the payments because he was unable any longer to continue them.

How the letter of September 3, 1885, contains a clear and unqualified admission that the senior Ackermann was under no legal obligation whatever to repay Mrs. Dovale the money which she had placed in the hands of his sons during his absence in Europe. By making that admission she induced Mr. Ackermann, Sr., to pay and acquired for her own benefit moneys which otherwise she could not have obtained ; and to allow her now to repudiate the statements contained in that letter as false would be to injure him to the extent of the aggregate amount of the subseqnent monthly payments. Here are the essential elements of an equitable estoppel by .admission, Trustees of Brookhaven v. Smith, 118 N. Y., 634; 30 N. Y. State Rep., 105, and, I think, the plaintiff’s letter should be deemed an insuperable obstacle to any recovery in her behalf against the senior Ackermann as a partner, unless it can be held that the plaintiff was forced to write the latter by duress.

There is no suggestion that there was any personal dures„s, but there is said to have been duress of goods, because the plaintiff was in straitened circumstances and Mr. Ackermann, Sr., told her that he would not give her a cent if she did not write the letter exactly as he wanted her to write it This was not enough to constitute duress of goods under any authority to which we have been referred, and it was error to leave any question of duress to the jury. See Hackley v. Headley, 45 Mich., 569, per Cooley, J.. and Silliman v. United States, 101 U. S., 465.

In the course of his charge the learned trial judge expressed the opinion that if Mr. Ackermann, Sr., was not a member of his sons’ firm, 1; then all these subsequent transactions between him and Mrs. Dovale were founded upon no consideration but were gratuitous and do not constitute a promise at which he is liable at law.” It does not seem to me clear that this view is correct. A consideration for the agreement to pay $100 a month may be found in Mrs. Dovale’s abandonment of her claim against Mr. Ackermann, Sr., in his capacity of partner, as evidenced by her letter of September 3, 1885.

In my opinion the judgment should be reversed and a new trial should be granted.

Yan Brunt, P. J., and Barrett, J., concur.


author: Van Brunt, P.. J. Barrett, J.

text:
    John Sullivan, v. The Mayor, etc., of the City of New York.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.

    Veterans—Municipal corporation—New York Oitt—Laborer on public works.
    "Where an honorably discharged Union veteran employed as a day laborer by the commissioner of public works, is discharged by him, and haying instituted proceedings by mandamus is reinstated, he is entitled to his wages for'tlie time during which the work was carried on between his discharge and reinstatment.
    (Following Higgins v. Mayor, 38 N. Y. State Rep., 400.)
    Motion for new trial upon exceptions ordered to be heard in the first instance at the general term.

      Sidney J. Cowen, for app’lt; Jerolomon & Arrowsmith, for resp’t.
   Van Brunt, P.. J.

—The following facts appeared upon the trial or were admitted by the pleadings.

The plaintiff, an honorably discharged Union veteran, was prior to May, 1889, duly employed by the commissioner of public works as a laborer at the rate of two dollars a day, repaving defective street pavements. While so employed on said day, he was discharged by the said commissioner. It further appeared that the plaintiff worked in a gang with seven or eight other men and that he was the only honorably discharged Union soldier in it, and that all the rest were retained to work in that gang throughout the year 1889. The plaintiff after his discharge instituted proceedings, and a writ of mandamus was issued out of this court requiring the' commissioner to reinstate him within two days. An appeal was taken and the judgment was affirmed in all things, with costs in January, 1890, and on the 10th of February he was reinstated.

But it is claimed that the plaintiff, being a day laborer, could not recover at all; and it was admitted that in case any recovery should be had, it should be for the sum of $311.

Upon this state of facts, the court directed a verdict for $311, to which exception was taken.

We are of opinion that the case of Higgins v. The Mayor, decided by this court in May, 1891, 38 N. Y. State Rep., 400, disposes of the question now before the court

It is urged upon the part of the defendant that it does not, because the plaintiff was a day laborer, whereas the plaintiff in the case cited was paid but once a month during the time of his employment, his hiring being two dollars a day, and not at the rate of two dollars a day.

It appeared from the evidence in this case that there was work to be done, and according to the decision of this court in the case of Higgins v. The Mayor, the plaintiff had a vested right to the continuation of the employment as long as the work was to be done; and that right having been illegally refused him, be was entitled to recover the wages which he would have received had the employment been given him to which he was entitled. It is not necessary, in view of the case cited, to discuss the question as to whether he was entitled to such priority or not, as that seems to be disposed of, and we can see no distinction in law between the case at bar and the case cited.

The exceptions should be overruled, and the plaintiff have judgment upon the verdict, with costs. If the defendant desires to carry the question to the court of appeals, a certificate will be granted.

Barrett, J.

—I cannot concur in the rule laid down in Higgins v. The Mayor. If that rule is correct, the veterans who, from time to time, have sought restoration by mandamus went through an idle and quite unnecessary ceremony. Indeed, the writs of mandamus in their cases should have been denied, because the relators thus had a perfect remedy at law. For, if the plaintiff’s right of action rests upon a contract of employment, he had only to tender service and sue the city, day by day, for his agreed two dollars. I do not see why, under the same reasoning, this right of action would not accrue to him, even if he had never been employed, so long as the right to original employment existed under the laws and was refused. The right to employment is thus treated as legally equivalent to actual employment.

Usually a contract calls for the meeting of two minds. Here, however, the city is held to have contracted by mere operation of law and without any act or assent upon its part. The statute of 1887 contemplated no such consequences. Otherwise the,pro visions looking to specific enforcement of its mandate and even making a violation of its spirit a misdemeanor were superfluous. They certainly were not needed to insure to the veteran all his rights if the law itself, acting upon the required conditions, vested him with those rights, regardless of official refusal.

In my judgment the city here owes nothing to the plaintiff for the simple reason that he performed no work for it during the period covered by his complaint. The city cannot be mulcted because of the wrong, done the plaintiff by a public officer in originally refusing him employment contrary to law; or in discharging him when employed contrary to law." Terhune v. The Mayor, 88 N. Y., 251.

He can only recover from the city for work actually done for it, whether under employment willingly given by the public officer in compliance with the law or forced from him by the judicial execution of the law. And that employment in the case at bar only commenced when the plaintiff was re-instated by mandamus. Prior to that time he was seeking employment under the law, but he had it not. But while I am unable to concur in the views expressed in Higgins v. The Mayor, I am bound by the decision. For that reason I feel constrained to concur.


author: Barrett, J.

text:
    Christian Keubler, App’lt, v. The Mayor, etc., of the City of New York, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    Negligence—Liability of driver.
    While plaintiff, a hoy" of nine years and six months was sitting on the edge of a sidewalk, with his legs extending across the gutter, he was run over by defendant's cart. It was dark, but there was a lamp twenty-five feet off, and the boy was playing with a dying fire. The cart was moving slowly and the boy was bright and well able to take care of himself. Deld, that there was no negligence on the part of the driver, and the boy was guilty of contributory negligence.
    Plaintiff’s exceptions to the dismissal of his complaint ordered to be heard in the first enstance at the general term.

      H. Warren Love, for pl’ff; Theodore Connoly, for deft.
   Barrett, J.

—The complaint was dismissed at the close of the plaintiff’s case, and we think correctly. There was not a particle of evidence to sustain the charge of negligence nor to establish freedom from contributory negligence. No one witnessed the occurrence, and all we know is that the boy was run over by a cart (probably owned by the defendant), while he was sitting upon the edge of the sidewalk with his legs extended outward across the gutter. The cart was moving slowly at the time of the accident, and the boy was trying' to revive a fire which had been made in the gutter, doubtless from some piece of kindling wood. This fire had nearly gone out and the boy was blowing upon it. It was about dusk, of a November evening; between.five and six o’clock. The boy’s brother testified that it was “ dark at the time, but not very dark.” A lamp was lit some twenty or twenty-five feet from where the boy thus sat with his legs in the street, playing with the dying fire. This boy was nine years and six months old, and his father testified that he was very bright and was well able to take care of himself.

Under these circumstances it is impossible to infer negligence upon the part of the driver of the cart. Ro negligent act in connection with the handling of the cart is proved, and we have nothing but the bare fact that the boy’s leg was crushed while the cart was proceeding slowly in the dusk of evening, on its lawful course upon the highway. The driver was, undoubtedly, bound to look out for pei’sons or vehicles, and, if possible, to avoid running over the one or into the other. But his attention would ordinarily be directed to persons standing upright in or crossing the street, and he could scarcely be expected to be equally observant of the surface of the highway or of objects almost upon a level therewith. If the occurrence had been in broad daylight, and the driver had been proceeding at an unusual rate of speed, or if there had been any direct evidence of actual inattention, a different question could be presented. In the entire absence, however, of any such direct evidence, we are here left to mere conjecture, and that certainly will not answer to fix responsibility upon the defendant.

We, think, too, that the boy’s own negligence contributed to the accident. He was, as we have seen, old enough and bright enough to be able to take good care of himself, and he was responsible for the exercise of such care as might reasonably be expected of one of his years and capacity. In the most liberal view of this rule, it cannot be said that the burden of showing freedom from contributory negligence hás here been met, either by direct evidence, or by the drift of surrounding circumstances.

If boys as old and as bright as the deceased, ‘sit down in the streets, or upon the curbstones with their legs extended into the streets, they must expect to get into trouble. At all events they knowingly run a great risk. The inference here is, that the boy either saw the cart slowly approaching, and paid no attention to it, or that his attention was so engrossed with blowing upon the smouldering fire, that he did not observe the approach of danger. ' In either case, his carelessness contributed to the accident.

We think, therefore, that the exceptions should be overruled, and judgment rendered in favor of the defendant upon the dismissal, with costs.

Van Brunt. P. J. and Patterson, J., concur


text:
    In the Matter of Archibald Johnston, Deceased.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    1. Executors and administrators—Accounting.
    The objector to an account made by an administrator is as much bound to set up in such objections any claims which he proposes to make, as the defendant in an action is bound to set up in his answer any claims which he proposes to urge against the plaintiff.
    2. Same—Property fraudulently disposed o'f by intestate.
    Where intestate has for a long time been insolvent, and to the knowledge of the administrator had a few. years prior to his death conveyed a valuable leasehold estate through a third party to his wife, it is the duty of the administrator to take proceedings to recover the property, and where he fails to do so he is chargeable with neglect of duty.
    (Distinguishing O’Conner v. Gifford, 117 N. Y., 275: 27 N. Y. State Rep., 543.)
    Appeal by Hugh Langan and Andrew Langan, composing the firm of Langan Bros., from decree of the surrogate upon accounting of the administrators of Archibald Johnston, deceased.

      W. C. Reddy, for app’It; Merritt & Terry, for resp’ts.
   Van Brunt, P. J.

—The appellant claims that the referee erred in not considering claims which the creditor attempted to establish as against the administrator which were in no way referred to in the objections which he filed to the administrator’s account. In these proceedings the account and the objections thereto form the pleadings; and the objector to an account is- as much bound to set up in such objections any claims which he proposes to make against the administrator as the defendant in an action is bound to set up in his answer any claims which he- proposes to urge against the plaintiff.

Therefore the question as to whether the respondent was rightfully entitled to claim one-half interest in the leasehold property was not before the court.

It is urged that this court, upon appeal, may amend the objections nunc pro tunc, in order that this claim might be considered. But the court never amends pleadings nunc pro tunc for the purpose of reversing a judgment, but only for the purpose of affirmance.

There is one item, however, in this account-in respect to which it seems to us that the court erred.

It appeared that Archibald Johnston, who died in August, 1889, was, for years prior to his decease, insolvent, and that the administrator had knowledge of his insolvency. It further appeared that in 1886, for a nominal consideration, he conveyed to one Harris an- interest in this leasehold estate which Harris, upon the same day, conveyed to the wife of said Johnston for a like consideration. Johnston being insolvent at the time of this conveyance, the same was a fraud upon his creditors if the lease was of any value whatever; and it would appear from the transactions had by the administrator in respect to other interests in this lease that it was valuable. Under these circumstances it certainly was the duty of the administrator to take proceedings to recover this property which Johnston had disposed of in fraud of his creditors. This the administrator, with full knowledge of these facts, failed to do; and it seems to us that he is chargeable with neglect of duty.

The referee found, in his opinion, that the administrator was not thus chargeable, apparently, upon the case of O'Conner v. Gifford, 117 N. Y., 375; 27 N.Y. State Rep., 453, although the record does not contain the opinion which it is stated the referee rendered upon making his report. But the case cited differs entirely in its essential facts from the one at bar. In that case the executor met the claim of neglect by showing the solvency of the testator, and that the property was in possession of another party at the time of the death of the testator, who was the residuary legatee, the claim being made that it had been given by the testator. The executor, believing the property to belong to the estate, stated the facts to his counsel, and was advised by him that he could not recover the property or its proceeds; and there was no claim that either the executor or the counsel did not act in entire good faith. It was held that the executor should not be charged with the value of this property.

In the case at bar, however, the estate was insolvent. The gift was made at a time when the administrator knew the intestate to have been insolvent and that, therefore, it'was a fraud upon the creditors. He was in possession of all the facts necessary to establish the fact of the fraud.

Under these circumstances it seems to us that the administrator did not fulfil his duty and that he was bound to show some reason other than that which appeared before the referee for his failure to collect this claim.

We think, therefore, that for this error the decree of the surrogate must be reversed and the proceedings remitted to the surrogate for further action; costs of this appeal to the appellant to abide the final event.

Barrett and Patterson, JJ., concur.


text:
    Ann Farmer, Adm’rx, etc., App’lt, v. The Manhattan Savings Institution, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    1. Banks and banking—Savings bank—Pass book.
    The reason for the rule in regard to the presentation of a savings bank pass book, entirely ceases upon the death of the depositor, and if the bank pays to anybody other than the legal representative of the deceased, it does it at its peril.
    3. Same—Payment to wrong person—Negligence by bank.
    On the death of a depositor, one D., presented the pass book to a saving bank, and payment being refused produced an affidavit that the book had been given her causa mortis and a certificate from one 0. that he had been appointed administrator and had been discharged, and that said D. was entitled to receive the money. On being again refused, D. brought action, her attorney preparing both complaint and answer and the referee occupying offices with attorney for defendant, plaintiff's attorney preparing the decision and paying all the expenses of obtaining the judgment, without costs against defendant. On the subsequent trial of this action the court refused to allow plaintiff P. to go the jury upon the fact whether defendant was negligent in paying to D. under all the circumstances. Held, error.
    Motion for new trial on exceptions ordered to be heard in the first instance at the general term.

      Abram Kling, for app’lt; Ira D. Warren, for resp’t.
   Van Brunt, P. J.

—On the 12th of February, 1862, one Henry Fitzsimmons, a Catholic priest, a resident of Wilkesbarre, Pa., opened an account with the defendant. When he opened this account he signed his name to the signature book containing the rules and regulations of the defendant, among which was the following:

“ The officers and clerks will endeavor to prevent frauds on depositors, but all payments made to any person producing the proper pass book shall be good and valid payments.” And also the following:

“ On the decease of any depositor the amount standing to the credit of the deceased shall be paid to his or her legal representative.”

A bank book was at the same time delivered to him, containing an entry of the deposit made at the opening of the account. He continued to make deposits which were entered in the same book up to the 31st of July, 1872. In June, 1874, he died at Wilkes-barre, and in July, 1874, Francis Caren, a Catholic priest, was appointed administrator of his estate. Before the death of Fitzsimmons Ann A, Devlin came into possession of this bank book and repeatedly presented the same to the defendant and demanded payment of the money, which the defendant refused. In July, 1886, the said Ann A. Devlin presented to the bank this book, her own affidavit to the effect that the book had been given to her causa mortis, a certificate that Caren had been appointed administrator of Fitzsimmons’ estate and an affidavit or statement by said Caren that Ann A. Devlin was entitled to receive the money, upon the face of which statement it also appeared that on the 18th of April, 1877, the said Caren had been discharged as administrator, and again demanded payment. Thereupon, in 1888, Ann A. Devlin commenced an action against the deiendant to recover this deposit. An answer was interposed and the case was referred to a referee and after a trial, which resulted in a judgment against the defendant for the amount of the deposit; the defendant paid this judgment to Ann A. Devlin in April, 1888, and received fnom her the bank book given to the intestate in 1862 in satisfaction of the judgment.

It further appeared that the plaintiff’s attorney prepared the complaint and the defendant’s answer, and that the referee who was agreed upon occupied offices in the same building with the attorney for defendant and that the plaintiff’s attorney prepared the decision and paid all the expenses of obtaining the judgment and entered the same without costs against the defendant. On the 5th of October following the payment of the judgment the plaintiff in this action took out letters of administration in this state and commenced this action to recover the deposit from the defendant.

Upon the trial these facts appeared and the plaintiff requested to go to the jury, among other things, upon the point as to whether the defendant was negligent in paying the money to said Devlin under all the facts presented by the testimony in the case. This request being refused and an exception taken, the court dismissed the complaint and an exception was taken thereto; which exceptions the court directed to be heard in the first instance at tne general term.

We think that the refusal to submit this question of negligence to the jury was clearly error. The administrator having been discharged from his trust, his representations in regard to the right of Ann A. Devlin to receive this money could have no greater or other effect than the representations of a stranger in regard thereto.

Whatever might have been the position of the parties, had the rule of the bank, that all payments made to any person producing the pass-book should be good and valid payments, stood alone, it is unquestionably the fact that this rule is very materially qualified by the subsequent rule which provided that on the decease of any depositor the amount "standing to the credit of the deceased shall be paid to his legal representative.

It may be a question worthy of consideration hereafter whether in the case of the decease of a depositor the prior rule does not become entirely inapplicable, because of the subsequent one. The defendant knew that the depositor had died; it had resisted the payment of this money upon the production of the bank book, and it was not until this collusive judgment was obtained that such payment was made.

It is difficult to see upon what theory the defendant supposes that a judgment of this kind could afford any protection in the payment of the amount deposited. The defendant knew that the depositor was dead, had its attention necessarily called to the rule that on the decease of the depositor the amount standing to his credit shall be paid to his legal representative. The reason for the - rule in regard to the presentation of the pass-book entirely ceases upon the death of the depositor. That .rule is to protect the bank in payments made to persons apparently having authority to collect when they are ignorant of the fact that by opertion of law there has been devolution of title.

Where there has been a devolution of title by operation of law, such as occurs upon the decease of a depositor, the rules of the defendant are explicit that payment will only be made to the legal representative of the deceased. Therefore, if they pay to anybody else, they necessarily pay at their peril, and it is for them to justify the payment by showing that the party had a legal right to receive the money in question. The two roles operate upon an entirely different state of circumstances, the one being to protect the bank against the carelessness of the depositor, and the other to protect the depositor when he is no longer in a position to protect himself. The defendant seems, in the payment mtade in the case at bar, to have lost sight of this latter rule, and to have acted in violation of its provisions.

We think, therefore, that the plaintiff was entitled to have this question submitted to the jury, at least, and the exception taken to the refusal so to do should be sustained, and a new trial ordered, with costs to the plaintiff, to abide the final event.

Barrett and Patterson, JJ., concur.


author: Patterson, J.

text:
    The People ex rel. George Uhrie, Resp’t, v. Thomas F. Gilroy, Com’r, App’lt

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    1. Veterans—Municipal corporations—Special employe op, not entitled TO PREFERENCE.
    A. person appointed by the commissioner of public works of the city of New York as “ inspector on the works of laying mains of the Standard Gas Light Company, by whom you will be paid at the rate of $100 per month," is not taken into the service of the department as a general employe, but for a particular purpose, and in connection with a. special work, and upon its completion he is not entitled to be continued in the department’s service, under chap. 464 of the Laws of 1887, giving preference in employment to veterans, and the fact that he was allowed to do other work for a limited time is immaterial.

      2. Same—Mandamus—Variance in writs.
    Upon the application to reinstate such employe, the alternative writ required the commissioner to show cause why the relator should not be reinstated as inspector of gas mains, and the peremptory writ was to require his reinstatement as inspector on the work of laying mains, if said work is still being done, or to be done. Held, that there was a fatal variance between the alternative and peremptory writs.
    Appeal from order of special term.

      William H. Clark, corporation counsel, Edward H. Hawke, Jr., and Charles J. O'Neil, for app’lt; Louis J. Grant, for resp’t.
   Patterson, J.

—This is an appeal by the commissioner of public works of the city of New York from an order directing that a peramptory writ of mandamus issue to reinstate the relator “ to the position of inspector in the work of laying mains or service pipes by the Standard Gaslight Company if said work is still being done or to be done.” The order was entered after a trial had on the return of an alternative writ issued in November, 1889, by which the respondent was required immediately on re-receipt of that writ to reinstate the relator ■“ to the position of inspector of gas mains in your department from which he was dismissed on January 26, 1889, or that you show cause why the command of this writ should not be obeyed,” etc. By consent of parties the jury was discharged from the consideration of the case and the judge decided in favor of the relator and subsequently on the presentation of the record to the special term the order now under examination was made.

The material facts developed on the trial are the following, viz.: the relator is an honorably discharged veteran of the war of the rebellion; on May 1, 1888, he received an appointment, in writing from the then acting commissioner of public works as follows, viz.: “You are hereby appointed Inspector on the work of laying mains of the Standard Gaslight Company, by whom you will be paid at the rate of $100 per month.” On January 26, 1889, he was relieved from service by the following notice in writing; “ You are hereby notified that your services on the work of the Standard Gaslight Company will not be required after this date.”

It will thus be seen that the employment of the relator was limited to a particular purpose and in connection with a special work. He was not taken into the service of the department of public works as a general employee to be assigned to duty anywhere or on any work as an inspector, but his employment was restricted to one particular thing and' no obligation rested upon the respondent to pay him a dollar or vary or transfer his service in any way. If he were a general employee as inspector as the alternative writ assumes, he would come within the preference given by the act of 1887 (nothing is claimed under chap. 119 of the Laws of 1888), but on the cessation of the work in connection with which he was first employed, he could not have insisted upon being retained to do other work. He had no right to continuous employment by the department when the special purpose of his appointment ended.

There was neither an actual contract, nor a presumed intention that such should be the case. The work of laying the mains of the Standard Gaslight Company stopped in November, 1888, and then the relator was transferred to other work of inspecting the house service connections of that company; but that bound neither the city nor the company to keep him in that position. He was not supplanted to make way for a person not a veteran, but, on his removal, one already in the general service of the department was designated to do that work. There was nothing in the appointment which required his retention; he could not be put on the pay roll of the department, for the city was under no obligation to him, and because he was allowed to do other work for a limited time for the Standard Company, he did not acquire a vested right to do that other work continuously. The Case of Sullivan, 55 Hun, 285; 28 N.Y. State Rep., 566, on which the relator mainly relies, has no application whatever. If differs, loto codo, from this. Sullivan was a laborer engaged by the department of public works and paid by the city, and was not merely designated "by the department and paid by a private corporation, as is the situation here. He was engaged in the public work.

There is still another reason why the court cannot be maintained. There is a'fatal variance between the alternative and the peremptory writs. By the former the respondent was directed to restore the relator to a specific position as an employee of the department. The peremptory writ requires reinstatement as an inspector of special work, provided it remains to be done. It is a rule of law that the peremptory must follow the alternative writ, People Supervisors of Dutchess, 1 Hill, 50), although in People ex rel. Green v. Dutchess & Columbia R. R. Co., 58 N. Y., 152, where the authorities are examined, the broad statements of the text writers are limited. What the relator demanded and what was clearly set forth in his petition and that upon which issued was joined related to his general employment by the department as an inspector. His affidavit recites, “ That on May 3, 1888, deponent was duly employed in the department of public works of the city of New York to serve as inspector of gas mains, and served as and served in such capacity until,” etc. The answering affidavit •of the commissioner sets forth that he did not discharge the relator from any position in the department as he was not an employee of the department, etc., and then states the exact status of the relator as to the work.

We think, the facts being clearly proven, the respondent was entitled to a dismissal of the writ for the relator could not have accorded to him what he claimed. The peremptory writ gives him something radically different and we cannot on a mandamus proceeding render judgment in favor of both parties.

The order must be reversed, with costs.

Yan Brunt, P. J., and Barrett, J., concur.


text:
    Charles G. Pease, as Ex’r, App’lt, v. Clara M. Eagan, Individually and as Ex’rx, Resp’t

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    Mortgage—Subrogation—Volunteer.
    J. devised his real and personal estate to his executors in trust to receive the income of the real estate and to pay one-third to his wife during her life, and to apply the remaining two-thirds, less an annuity, to the maintenance and education of his children in equal shares, and to invest the personal estate and accumulate the income, and pay over to them the entire personal estate on their attaining their majority. The youngest child became of age on April 23, f877, and on that day the executrix, J.’s widow, paid off a mortgage of §18,000 on the real estate, out of the personal estate in her hands in trust for the children. The will provided that upon the death of testator’s wife, the real estate should be divided equally among his children, or their issue, and if any of the children died without issue during the lifetime of his wife, his share should go to the survivors, or their issue. Plaintiff’s testatrix, one of the children, died without issue during the lifetime of the widow, but before her death assented to the payment of the mortgage on the real out of the personal estate. Held, in an action by her executor to be subrogated to the rights of the mortgagee, in the absence of proof that such assent was without full knowledge of the provision of her father’s will as to her defeasible interest in the real estate, that she was a mere volunteer in so assenting; that her money was not needed, and that plaintiff was not entitled to the relief.
    Appeal from judgment entered upon decision of special term dismissing complaint

      Glover, Sweezey & Glover (R. S. Sweezey, of counsel), for app’lt ; Redfield & Redfield and F. F. Vanderveer (A. A. Redfield, of counsel), for resp’t
   Van Brunt, P. J.

—This action was brought for subrogation to and foreclosure of a mortgage. The facts which seem to be established by the record are as follows, although other facts are assumed by the appellant to be established because of admissions in the pleadings which however cannot be considered because of the fact of there being an infant who put in a general answer.

John Eagan died on the 17th of May, 1875, leaving his widow, the defendant, Clara M. Eagan, and two children, a son, William Gr. Eagan, and a daughter, Clara E. Eagan, who afterwards became Clara E. Pease. The said John Eagan left a will which was duly admitted to probate, his wife qualifying as sole executrix, and by which, after bequeathing his household furniture to his wife, all his estate, real and personal, was devised and bequeathed to his, executors in trust substantially for the following purposes: To receive the income of the real estate and pay one-third to his wife during her life, and to apply the remaining two-thirds, after paying out of the same an annuity, to the maintenance and education of his children in equal shares until the youngest of such children should attain the age of twenty-one years, and until such real estate should be sold as in the will directed, with directions to accumulate any surplus of such income for the benefit of the children during their minority. In respect to the personal estate the will provided that the same should be invested and the income accumulated during the minority of the children and upon their attaining twenty-one years of age the entire personal estate and all accumulations of income of real and personal estate was to be paid over to his children. The will further provided that upon the death of his wife and upon the youngest child attaining the age of twenty-one years his real estate should be sold and the proceeds thereof divided among his children in equal shares. If his children should attain the age of twenty-one years during the lifetime of his wife the executors were authorized and directed to sell the real estate before the death of the wife, provided the wife consented thereto. The will further provided that if any .of his children should die during his lifetime or after his death, and before the time in said will appointed for selling and distributing his estate real and personal amongst them as aforesaid, leaving legal issue surviving them, then the issue of the children so deceased should take the share or portion of the estate real or personal which his, her or their parent would have taken under the will if living at the time of such sale and distribution; and if any of such children should die without issue during the lifetime of his wife or before the sale and distribution should have been made to -and amongst them, and should leave a brother or sister or issue of brother or sister surviving, then the share of the child so dying without issue should be taken by such surviving brother or sister, or the issue of «any deceased brother or sister. Among other pieces of property, the testator died seized of property Ho. 43 East Sixty-fourth street, subject to-a mortgage made by the testator to secure the sum of $18,000, which, by its terms, became due on the 23d of April, 1877. The youngest of the testator's children, it appears, came of age on the 30th April, 1877, and on said day the mortgage having become due, the executrix of the will of John Eagan paid this mortgage out of the personal estate in her hands, as executrix, and canceled the same of record. Upon the accounting before the surrogate, the executrix credited herself with the payment of this mortgage out of the personal estate, and a decree was made by the surrogate approving the account as rendered, the children of the testator both assenting thereto.

It appears that subsequently the said Clara E. Eagan, having subsequently married the plaintiff, commenced a proceeding in the surrogate’s court to open the decree theretofore entered upon her consent, but said application was denied. In July, 1880, Clara E. Pease died without issue, leaving a last will and testament, of which her husband, the plaintiff, is executor. After this action was brought, her brother, Wm. Eagan, died, leaving a widow and ■one child, who are parties to this action.

Upon these facts the court dismissed the complaint, and from the judgment thereupon entered this appeal is taken.

Although the ground upon which the learned judge put his decision does not seem to be borne out by the facts, yet the interference of the court is asked upon the assumption that certain facts appear which were not established, namely, that the acquiescence of the plaintiff’s testatrix in the payment of this mortgage was obtained by representations in respect to the condition of the property which caused her to consent thereto, not being apprised of her rights.

It is true that the admission of those facts is contained in the answer of the adult defendants, but there being a general answer by an infant, such admission amounted to nothing, and in order that any such condition of affairs should be considered it should have been proven upon the trial.

It is clear that under the will of John Eagan the interest of the children in the personal estate became absolute upon their arriving at the age of twenty-one, and that as both the children did attain the age of twenty-one they became the absolute owners of the personal estate devised to be held in trust during their minority. Their interest in the real estate, however, was of an entirely different character. Such interest was liable to be divested by their death during the lifetime of the widow, except only as to such portions of the real estate as might be sold after the children became twenty-one, with the consent of the widow. It was necessary, therefore, either that the widow should die or the real estate be sold by and with her consent after the arrival of the children at twenty-one, in order that such children should have an indefeasible interest in said real estate. The provision of the will is explicit that should any of the children of the testator die during his life, or. after his death, before the time in said will appointed for selling and distributing the said real estate, and should leave legal issue him surviving, then the issue shall take when the time of distribution arrived. If they left no issue then the surviving brother or sister was to take. Thus the absolute vesting of the estate depended upon either the death of testator’s widow or the sale of the real estate, with her consent, after the children arrived at twenty-one years of age.

The real estate was not sold; and Clara E. Pease died without issue during the lifetime of the widow. Consequently her share or interest in the estate went, under the will of her father to her brother, or his issue if he should die, as has happened, during the lifetime of the widow.

Under this state of facts Clara E. Pease consented to the payment of this mortgage partially out of her money, and it further appears that upon the rendition of the account to the surrogate this money was charged and she consented to the passing of the account; and there is no evidence whatever to show that she did not so consent with full knowledge of the provisions of her father’s will in respect to her interest in this estate. As far as this case goes she was a mere volunteer, and there is no proof whatever of the necessity, for the preservation of the estate, that she should intervene with her money for the purpose of paying the amount of this mortgage.

It is true this fact is assumed in the argument of the learned counsel for the appellants, but there is no proof to establish the same.

Under such circumstances there does not seem to be any basis: for the claim of the right of subrogation, and we think that the conclusion which was reached by the court below was correct and that the judgment should be affirmed, with costs.

Barrett, J., concurs in the result


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    The People, Resp’ts, v. Sampson Wallach, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    Criminal law—House on prostitution—Owner’s knowledge op such use—Evidence.
    " Upon the trial of an indictment for permitting certain premises owned by defendant, to be occupied as a house of prostitution, it appeared that the tenant had been tried for keeping the place and convicted, and that the defendant was present in the police court when she was arraigned. That defendant had been notified by an officer of the society for the Prevention of Cruelty to Children of the character of the tenant, and of the fact that she kept a disorderly house, and that he declared to the officer that one tenant was as good to him as another so long as the rent was paid. Held,, that there was sufficient evidence to charge the defendant with knowledge of the use to which the premises in question were put.
    Appeal from court of sessions.

      Philip Carpenter and Charles A. Hess, for app’lt; De Lancey Nicoll and David Welch, for resp’ts.
   Barrett, J.

—The defendant was tried in the court of special sessions for the misdemeanor of permitting certain premises in this city, of which he was the owner, to be kept, maintained and occupied as a house of prostitution, in violation of § 322 of the Penal Code. The fact that the defendant was the owner of these premises and that they were so kept, was abundantly established, and the pnly question in the case is as to the defendant’s guilty knowledge. That such guilty knowledge must be shown is undoubtedly the law. It may, however, like any other fact, be shown by circumstantial evidence. We have carefully considered the testimony on that head, and our conclusion is that this crucial fact was sufficiently established. The premises in question were occupied by several families, it being a tenement house, and the complaint was directed against the first flat on the lower floor. It appears that as far back as March, 1890, this lower flat was occupied as a place of prostitution, and the defendant’s tenant, one Annie Winniss, was, in that month, tried for keeping the place, and convicted. Pending these proceedings, the defendant was notified by an officer attached to The Society for the Prevention of Cruelty to Children (one Wilson) of the character of the tenant and of the fact that she kept a disorderly house; also, of the fact that his own housekeeper at the premises was an immoral woman, and had herself solicited the officer. The defendant was also present when the woman Winniss was arraigned in the police court, and was there spoken to by another officer of the society (one Beecher), who told him that he, Wallach, should get rid of such people as Annie Winniss. When notified by Officer Wilson of the character of his tenant, the defendant declared that it was none of his (Wallach’s) business ; that one tenant was as good to him as another, so long as the rent was paid, and that he could not see that it was his business, “in any shape or form, to inquire whether people had any certificate of marriage or not.” This was the spirit in which he received this officer’s notice, followed as it was by a respectful suggestion that the defendant was “ under some obligation to the children of the neighborhood.”

Within a month after the conviction of Anne Winniss the same premises were again rented to the keeper of a brothel, one Jennie Hart, and she occupied them, plying her trade with impunity, until the following November, when she also was arrested, tried and convicted for keeping a disorderly house. The place was of the lowest character, and the women seem from the testimony to have been unusually depraved. The same housekeeper, against whom the defendant was warned in the preceding March, was retained. She sometimes collected the rents. At other times the defendant collected them. He went to the house on the 2d or 3d of every month, and his rent, he says, was “ always there when he came.” He acknowledged to an officer attached to the society already referred to, named Finn, that he had personally collected the rent from Jennie Hart for the last two months prior to the arrest in November, and he must, indeed, have been blind if on these occasions he observed no evidence of prostitution.

In the same connection he declared that he would rent his premises to prostitutes or to any one; that it-was his business and no one else’s to whom he rented them. And again, when his attention was called by this officer to the fact that it was the second time that these premises had been “raided ” as a house of prostitution, he replied: “ What is that your damned business? I well let my rooms out to any Tom, Dick or Harry.” This testimony was corroborated by officer Moore, who testified that the defendant said, when informed that it was a second offense, that he did not care. He would rent his rooms to whom he chose if he got better rent

The enormity of all this is emphasized by the fact the other-tenants were respectable people with young children, one of whom this Jennie Hart used to encourage to come to her rooms. Even after Jennie Hart was convicted the defendant was apathetic about removing her, and she still continued for some two weeks to occupy the floor in question. The defendant explains that this delay was because of his illness; but it is quite significant that the city marshal, Mulvehill, in answer to Mr. Jenkins, who represented the society, finally declared that the proceeding to dispossess Jennie Hart was commenced on the 8th of December, which was the very day when the defendant was indicted.

We think, upon all this testimony, that the court below was entirely justified in finding guilty knowledge with regard to Jennie Hart and to the place which she kept. The conduct and the declaration of the defendant throughout was entirely inconsistent with innocence. They plainly indicated guilt at that. There is nothing in any legal question presented, and the judgment should, therefore, be affirmed.

Yaw Brunt, P. J., and Patterson, J., concur.


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    The People, Resp’ts, v. Thomas McGuinness, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    1. Trial—Continuance—Good faith of defendant’s counsel.
    Defendant was indicted for a criminal offense, and when the case was moved his counsel was absent, being engaged in the trial of a case in another part of the same court. The court, thereupon, assigned another counsel to which defendant objected. It appeared that the case was upon the calendar the day before, and as a favor to counsel was adjourned to the next day when he would positively be ready. It did not appear that defendant’s counsel represented to the judge holding the other branch of the court that he was under an absolute engagement to try defendant’s case. Held, that there was no error in compelling the defendant to go to trial, as it did not appear that his counsel had made any honest effort to be ready.
    2. Rape—Evidence—Sufficient.
    On a trial of an indictment for rape it appeared that the prosecutrix told an officer that she had been assaulted and her clothing and hair at the time were covered with dirt, and described the men who had assaulted her, and stated that one of them had no hat on. The officer saw three men, one of whom had no hat, and when he started towards them they started to run. The defendant was caught, his knees were wet and muddy and he was identified by the prosecutrix as one of her assailants. His statement in regard to the disappearance of his hat was established to be untrue. Held, that there was sufficient evidence to sustain a conviction.
    Appeal from judgment of the court of sessions, convicting the defendant of rape.

      Purdy & McLaughlin, for app’lt; De Lancey Nicoll (M. Semple, of counsel), for resp’ts.
   Van Brunt, P. J.

—The appellant and one Joseph Kearney were indicted in the court of general sessions for a rape on one Mary McGill, on the 17th November, 1890. The appellant was tried separately and when the case was moved Mr. Purdy, whom he had retained • as his counsel, was absent, being then actually engaged in the trial of a case in another part of the same court. The court thereupon assigned Mr. Hooper to conduct the defense, to which McGuinness objected, desiring to be defended by Mr. Purdy. Mr. Hooper also objected on the ground that he knew nothing about the case; but the court directed the trial to proceed.

It appeared from the record that the case was upon the calendar the day before and that as a special favor Mr. Purdy had requested that the trial might be adjourned to the next day, when he would positively be ready to try the case. That Purdy was engaged in the trial of a case at the time this case was called for trial is undoubtedly true. But it nowhere appears from anything in the affidavits presented upon the motion for a new trial nor from anything in the proceedings upon the trial itself, that Purdy made any representation to the judge holding the other branch of the court that he was under an engagement absolutely to try this case and endeavored to be excused. It would appear, therefore, that the counsel made no honest effort to be ready to go on with the trial when it was called for trial in pursuance of his stipulation and agreement with the court.

It was certainly the manifest duty of the court to enforce the agreement of counsel made with the court as a condition of the granting of a favor, that he would go on and try the case in question. There was no error whatever, therefore, in compelling the defendant to go to trial where there was an evident attempt to further postpone the case after a stipulation to tiy given as the condition of a favor.

It is claimed that the judgment should be reversed on the ground that the evidence was insufficient to warrant a conviction and that the court had erred in the admission of evidence. It is not necessary in the disposition of this objection that the testimony which tended to establish the charge should be set out at length.

The criticisms passed upon the testimony of the plaintiff, its suspicious circumstances etc., were all considered by the jury, and they seem to have had with them all the weight to which they were entitled. The evidence tending to support the charge against the defendant was of more than ordinarily satisfactory character. That she was assaulted by these ruffians is established beyond doubt. But it is claimed that there is no corroborative evidence sufficient to establish the charge of rape. And why? Because as soon as she escaped, in appealing to an officer, she stated that she had been assaulted, and in another case it appeared that she was telling her story and seeking protection.

Under these circumstances, in view of the evidence in the case, it was for the jury to determine whether the complainant did not make a prompt complaint, embracing everything that was necessary for her to state, in order to convey the information that she had been ravished, and that was what she meant when she said she had been assaulted on the dock. We find, further, from the undisputed evidence, that this woman’s clothing and hair were covered with dirt and mud.

It further appears that the officer, getting a description from her of one of the men who had assaulted her, and it having been further stated by her that one of the persons who assaulted her had lost his hat, saw upon the opposite side of the street three men, one of whom (the appellant) had no hat on, and who started to run as soon as he saw the officer, but stopped upon the officer’s threat to shoot, who arrested him and took him into the presence of the complainant, who identified him as one of her assailants. His knees were wet and muddy, and he at first said Kearney had been with him, but afterwards that nobody was with him. His statement, also, in regard to the disappearance of his hat was established to be untrue. All this evidence, taken together, forms a more than ordinarily strong case, tending to establish the guilt of the accused.

The claim that is made of a variance between the time when the crime took place, and the time alleged in the indictment, does not seem to be at all material. It was alleged in the indictment as committed on the 17th, whereas it appears to have been committed on the 18th. This was an entirely immaterial variance, which might have been the subject of an amendment, had the attention of the court been called to the same.

As to the claim of error in the admission of evidence, no exceptions whatever were taken; and upon an examination of the record, it does not seem that the appellant has received any injury because of the admission of any incompetent or improper evidence. The conviction should be affirmed.

Barrett and Patterson, JJ., concur.


author: Patterson, J. Barrett, J.

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    Caroline Livingston, App’lt, v. The New York Elevated Railway Company et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    1. Appeal—Time op taking—Code Civ. Peo., § 1351 — Stbict compliance NECESSARY.
    Section 1351 of the Code of Civil Procedure, which provides that an appeal “ must he taken within thirty days after service upon the attorney for the appellant of, a copy of the judgment or order appealed from, and a written notice of the entry thereof,” and strict compliance with this provision is required to operate a limitation of the time allowed; and where the copy of the judgment lacked the attestation of the clerk, and the notice of entry did not specify the place of entry to he the office of the clerk of the city and county of New York, but merely to be the office to clerk of the supreme court, is insufficient.

      2. Same—Estoppel.
    A notice of appeal was served more than thirty days after service upon the appellant’s attorney 'of a copy of the judgment appealed from, and notice of entry thereof, and was held insufficient. The defendants made various affidavits in proceedings to avert the consequences of the default, in which they stated that their time to appeal had expired on June 7th, the end of the thirty days. Held, that the affidavits did not estop them from denying that their time to appeal had expired, where the copy of the judgment and notice of entry served on them were subsequently set aside as defective.
    3. Execution—Appeal—Stay.
    Where an appeal is taken after execution has been issued on the judgment which is appealed from, the execution may be stayed, but should not be absolutely set aside.
    Appeal from special term.

      S. B. Livingston (C. G. Bennett, of counsel), for app’lt; Julien T. Davies and Brainerd Tolles, for resp’ts.
   Patterson, J.

—On the 8th day of May, 1890, the appellant (plaintiff) recovered at the special term a judgment against the defendant, in part for a sum of money awarded as damages to certain premises belonging to her. On the same day what purported to be a copy of the judgment was, with what was intended to be a notice of the entry thereof, served on the defendants’ attorneys. The time to appeal had it been duly limited, would have expired on the 7th day of June, 1890, and on that day the defendants’ attorneys undertook to make service of a notice of appeal, but that attempt was held by the general term to be ineffectual, and hence no service was made. 11 N. Y. Supp., 359; 33 N. Y. State Rep., 818. That decision was affirmed by the court of appeals. Subsequently and on the 16th day of January, 1891, the defendant’s attorneys caused a new notice of appeal to be served properly. Meantime, the defendants had made various efforts by motions to the court to have the regularity of the first appeal recognized, but these efforts were unfruitful, and on the 24th day of December, 1890, the plaintiff’s attorney issued execution to the sheriff of the city and county of New York. At that time the situation of the plaintiff was the following: She held the money ■judgment from which no appeal had been taken, and there was no order staying proceedings and nothing operating to prevent the issuance of that execution, although on the 2d July, 1890, a duly executed undertaking on appeal was filed by the defendants. On the day the second notice of appeal was served an order to show cause why the execution should not be set aside was obtained. The motion made on that order was granted, with costs against the plaintiff, and from the order entered thereon this appeal is taken. The ground upon which the decision was based is,, that the second notice of appeal is good, because the copy of the judgment and the notice of the entry thereof served on the defendants’ attorneys May 8, 1890, were not sufficient to impair the defendants’ right to appeal irrespective of' the mere question of time. Section 1351 of the Code of Civil Procedure provides that an appeal must be taken within thirty days after service upon the attorneys for the appellant of a copy of the judgment or order appealed from and a written notice of the entry thereof. Strict compliance with this provision is required to operate a limitation of the time allowed, and so much do the courts favor the right of appeal that they have gone to great length in upholding the most technical objections to the sufficiency of the papers served pursuant to the. section of the Code referred to. The learned judge in the court below cited in his opinion several of the adjudications of the court appeals on the subject, and among them In re N. Y. C. & H. R. R. Co., 60 N. Y., 112; Kelly v. Sheehan, 76 id., 325; Good v. Daland, 119 id., 153; 28 N. Y. State Rep., 935. In the case at bar the objections taken to the paper are that the copy of the judgment lacked the attestion of the clerk, and that the notice of entry did not specify the place of entry to be the office of the clerk of the city and county of New York, but merely stated that the judgment was entered with the clerk of the supreme court. These defects, at first blush, do not appear to be very substantial, but when it is considered that a right of appeal may be destroyed in the most meritorious case by a mere accident, and that the court has no power to relieve, it is altogether equitable to insist that the party seeking to enforce the technical advantage shall be held to strict technical practice himself; and the very objections now pointed out by the defendant have been deemed cogent enough to prevent the limitation of the time to appeal. Good v. Daland, supra ; Valton v. Nat. Loan Fund Life Assur. Soc., 19 How. Pr., 515 approved in Matter of N. Y. C. R. R. Co., etc., 60 N. Y., supra. The learned judge below was, therefore, correct in holding that the right to appeal had not been limited, and that the notice of appeal served on the 16th of January, 1891, was in tima

But the respondent claims that the appellant is in some way estopped from denying that the time to appeal had expired and calls attention to various statements made in affidavits used in the proceeding to avert the consequences of the default in serving the notice of appeal within thirty days from May 8, 1890, and which have been above referred to. In these affidavits it is stated that the- appellant’s time to appeal expired on the 7th of June, but we do not think such statements constitute under all the facts before us, either binding admissions or anything else that fairly should be construed to deprive the respondent of the right to appeal. They were made in view of the fact that a notice of appeal, which they claimed to be regular and in time, had been served, and were founded upon that belief, and were made altogether with reference to the questions raised in the proceedings adverted to and on the assumption that the service of the judgment and notice of entry were also regular. In this the affiants were mistaken, but their mistake has caused no injury to the respondent and should not be considered tantamount to an estoppel.

We are of the opinion, however, that the order made by the learned judge is too broad and that the execution should not have been set aside absolutely and with costs against the plaintiff, but that proceedings upon it should have been stayed, merely; for when it was-issued in December, 1890, the plaintiff had a clear legal right-to enforce her judgment by appropriate process.

The court had adjudged her to be entitled to the money; there was no appeal pending and no impediment to its collection; for the undertaking filed July 2, 1890, without an appeal actually taken, did not in any way supersede the right to realize on the judgment. But when the appeal was taken in January it was-proper to apply to the court, to stay the execution on such terms as might be considered just. The order must, therefore, be modified so that proceedings under the execution be stayed until the determination of the appeal, without costs, and as thus modified it will be affirmed, without costs.

Van Brunt, P. J., concurs.

Barrett, J.

—I also concur. There is no question here of the mere waiver of an irregularity. The defendants waived nothing. They, simply insisted that they had appealed according to law when, in fact, they had not. The plaintiff failed to set the defendants’ time to appeal running by reason of her failure to serve a particular paper precisely as required by statute. The defendants’ acknowledgment of the receipt of that paper, and their expression of belief that their time to appeal was thereby limited, do-not alter the legal effect of the plaintiff’s failure to do what was requisite to set the time to appeal running.