author: Pratt, J.

text:
    Henry Boues, Resp’t, v. Aloys Steffen, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    1. Chimin ai conversation.
    In an action for enticing away plaintiff’s wife and debauching her, plaintiff testified that his wife had been a servant of defendant when he married her; that defendant persuaded her to remain in his service; that plaintiff had seen acts of familiarity between his wife and defendant, and had seen her in defendant’s bed. This was contradicted both by the wife and defendant. Held, that the plaintiff’s testimony was open to grave criticism, and was so thoroughly contradicted that the jury should have regarded it as unworthy of belief.
    2. Same—Evidence.
    In such an action evidence of complaints made by plaintiff to other-parties in the absence of defendant is inadmissible.
    Appeal from judgment in favor of plaintiff.
    Action brought by plaintiff for the alleged enticing away of' his wife, from him as a first cause of action ; and for debauching-his wife as a second cause of action.
    Plaintiff’s wife prior to the marriage was a cook in the employ of defendant, who was a Roman Catholic priest.
    Plaintiff testified that after his marriage the defendant asked, plaintiff to let his wife stay there a few days, until he got another cook, which he did, and that in a few days he asked Steffen whether he had a cook, and Steffen said he had one, but did not. want her, and then he asked plaintiff to stay one night, to which he objected but finally consented, and then that plaintiff and his-wife should sleep separate ; that on December 15, 1890, Steffen and plaintiff’s wife went to Middle Village in one wagon and. plaintiff in another wagon, at defendant’s suggestion, rode home-same way but plaintiff got home one-half hour before. On the following day she was sick in the defendant’s bed and defendant sat on the edge of the bed and was kissing her; that on January 5th he was in the kitchen kissing her; that on January 8th, he, the plaintiff, went to his wife’s room about 2 o’clock in the morning,, .and found that no one had occupied the bed that night, and then heard the defendant and his wife conversing in the defendant’s bed room ; he then went down stairs and knocked on the kitchen door, and it is admitted that the defendant then came down with a pistol in his hand and that the plaintiff asked him “ where is. my wife,” to .which the defendant answered he did not know; that they made a trip to New York city together; in March she was again in the defendant’s bed and claimed she was sick; on March 26th he asked the defendant to send his wife home and was refused; plaintiff told the defendant he was going to move and defendant told him his wife would not move with him; and on May 26th defendant threatened to have him arrested if he-moved any of the furniture from his residence; on May 26th defendant went to plaintiff’s house and when plaintiff said he would sue him, he called him a greenhorn, and said he could do nothing ; that on one occasion she was lying in defendant’s bed, and the defendant was the only other person in said room, and upon the witness entering the room, he covered her up, saying she should look out and not catch cold; plaintiff’s wife would go up to defendant’s room alone to say good-night to him, and would generally remain one-half hour; defendant also made a trip to Philadelphia with plaintiff’s wife, and remained there over night stopping at a hotel.
    Plaintiff’s testimony as to acts of familiarity was directly denied by defendant and by plaintiff’s wife.

      Albrecht J. Lerche (Thomas F. Byrne, of counsel), for app’lt; Oscar Richter (Howard A. Sperry, of counsel), for resp't.
   Pratt, J.

The verdict rendered by the jury finds some support in the testimony of the plaintiff, and it is probable that a nonsuit at the close of plaintiff’s case would not have been sustainable. But the testimony .was open to grave criticism, and had the cause been decided upon the plaintiff's testimony simply, the jury might well have hesitated before basing upon it a verdict

The evidence introduced by defendant fully contradicted that of the plaintiff.

The witnesses were numerous, and, with the exception of defendant and Mrs. Bones, were without interest in the result.

Much of their evidence is not to be reconciled with that of the plaintiff, and we are not able to see how he can be believed unless many others are to be discredited. Some part of his evidence may perhaps be explained on the ground of ignorance, but a great part we think must be ascribed to a deliberate desire to misstate the truth. So thoroughly contradicted was he that we think the jury should have regarded his testimony as unworthy of belief.

Upon the whole case it is clear the verdict should not be allowed to stand.

The plaintiff was allowed to prove that he made complaints to other parties in the absence of defendant

That was error and must have been injurious to defendant

Verdict set side, judgment reversed, new trial ordered, costs to abide event.

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


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Proving the Will of Homer A. Nelson, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Will—Execution.
    Testator and the witness who drew the will were lawyers of ability and experienced in the execution of wills, and the attestation clause was full and explicit, except that it did not state that the witnesses signed at the request of testator. The surviving witness testified that he did not sign at the request of testator, but at the request of the other witness in the presence of testator. Held, that from the fact that testator and the draftsman were experienced in such matters it would be presumed that all formalities were complied with.
    Appeal from decree of surrogate, admitting will to probate. The witness who drew the will died before the testator, and the surviving witness testified that he did not sign at the request o£ testator, but at the request of the other witness, made in the presence of the testator, who was very sick at the time. This-witness was a coachman in the employ of testator.

      J3. W. Fullerton and M. H. Hirschberg, for app’lts; Franlc B. Lown. (John Hackett and H. M. Taylor, of counsel), for resp’ts.
   Pratt, J.

The testator was a prominent practicing lawyer in the county of Dutchess for many years, and no man in that county knew more fully and accurately the requisites of a valid will than did the deceased, and the same might also, perhaps, be truthfully said of the subscribing witness, 0. D. M. Baker.

The will, was made some thirteen years prior to the testator’s death, and during the latter part of that time was in his possession.

There is no testimony worthy of notice that at the time the will was signed he was not fully competent to make a will, or that it was the result of any restraint or undue influence.

The evidence is abundant and conclusive to any fair mind that all the formalities to make a valid will were duly complied with.

The fact that the testator was a lawyer of great ability and of much experience in the matter of wills and familiar with all the requisite formalities for their valid execution, and the further fact that the subscribing witness, who in part superintended its execution, was also a person of like ability and experience, afford a strong presumption that all the acts necessary to make a valid will were performed.

In Re Cottrell, 95 N. Y., 329, the attestation clause is full and specific as to every requirement, except it does not state that the witness signed at the request of the testator. This defect, if such it may be called, was fully supplied by sufficient proof that it was-done at testator’s request.

The attestation clause is full and explicit, except as just stated, and it is subscribed by the two witnesses, and is to be regarded in connection with the circumstances surrounding the execution of the will as of more weight than the loose or perverse recollection of" one of the subscribing witnesses.'

Wills concededly made by persons in full possession of all their faculties, attested in due form, ought not to be set aside on the flimsy pretext that a witness who has heard read the attestation clause does not remember after many years whether a particular formality was complied with.

Aside from the uncertainty that would arise about every will, it would open the door to and afford a strong temptation to perjury. Rugg v. Rugg, 83 N. Y., 594; Code, § 2620; Matter of Hesdra, 119 N. Y., 615; 28 St. Rep., 810.

It is not necessary to comment on the testimony of the witness Keller, except to say that we think the surrogate was justified in not crediting some of his testimony, but the testimony of that witness supplies any defect in the attestation clause.

It is not necessary to discuss the cases quoted by the contestants. Each, contest about a will must be determined upon the particular facts and circumstances that surround it

There is no principle quoted by the contestants that is controlling in the present case to prevent the probate of the will.

Decree affirmed, with costs.

Baward, P. J., and Dtkmah, J., concur.


author: Barnard, P. J.

text:
    Emanuel Simons, App’lt, v. George W. Evans, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Landlord and tenant—Action fob bent.
    Plaintiff leased certain premises to defendant for three years from May 1, and the latter gave a post dated check for the first quarter’s rent, which was subsequently stopped. Defendant endeavored to repudiate the lease on the ground that he did not obtain immediate possession in accordance with a written consent given him by the person who drew the lease, whose authority to do so was denied by plaintiff. Held, that the agency of such person was directly in issue, and a direction of a verdict for defendant was erroneous.
    Appeal from judgment in favor of defendant, entered on verdict directed by the county court on appeal from a justice’s judgment in favor of plaintiff.

      Wm. M. Benedict, for app’lt; J. Stewart Boss, for resp’t
   Barnard, P. J.

On the 19th of March, 1888, the plaintiff by a written to premises on Flushing avenue in Brooklyn, for the term of three years from the 1st of May, 1888, at the rent of $425 yearly, payable quarterly in advanca There was a privilege to purchase given to the defendant The defendant was to make improvements on the property which consisted of vacant lots, and if the right to purchase was not accepted, the improvements were to revert to the plaintiff. At the time the lease was signed by defendant he deposited with one Mr. Gondict, who was the person who drew up the lease, a check for one-quarter’s rent in advance. The check was dated May 1, 1888, the date of the commencement of the term. The of this check was stopped by the defendant.

This action is brought to recover the quarter’s rent. It appeared on the trial that at the time of the execution of the lease in March, 1888, the lots were in the possession of third parties. On the 1st of May, 1888, the premises were ready for the occupancy of defendant, but he took no possession of the same. The defense is based upon a paper given by Gondict in the name of plaintiff, that the defendant might in consideration of the lease take immediate possession of the lots in March, 1888. The plaintiff testified that Gondict had no authority to give this paper. That he was not his agent, beyond drawing up a lease which he had made and which he did draw correctly. That he, plaintiff, knew nothing of the consent to take immediate possession in March of the lots.

• There was a question of fact for the jury. The lease is signed by the plaintiff in person. The consent to take immediate possession is wholly written by Gondict. There was no proof of authority in Condiet to give this consent. The plaintiff expressly testifies that he had no such authority. The defendant only testifies that he got the consent at the time he got the lease, and that the papers were both delivered to him by Condiet. The agency of ■Condiet to give the consent was thus directly in issue, and the direction of a verdict for defendant was erroneous.

There should, therefore, be a new trial, with costs to abide ■event

Judgment and order reversed and new trial granted, with costs to abide event.

Dykman and Pratt, JJ., concur.


text:
    The People ex rel. George H. Nichols et al., Resp’ts, v. The Board of Supervisors of Queens County, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    ■County—Protection op property.
    In a proceeding for a mandamus to compel the audit of bills for services rendered on the employment of the sheriff to protect private property . from injury by strikers, where no actual violence is shown to have been done or threatened, the county has a right to go to the jury on the question of the necessity of the sheriff’s action in hiring men on the credit of the county. It is not liable merely because the sheriff hires men if the danger did not exist.
    Motion for reargument
    Proceeding for a mandamus to compel the board of supervisors to audit and allow a claim presented by relators for money advanced to the sheriff to pay certain officers employed by the sheriff to protect the property of the relators during a strike of their workmen. The moneys were advanced in pursuance of a promise by the sheriff that relators should be reimbursed by the ■county, and he assigned to them his bill against the county for reimbursement. An alternative mandamus was issued and trial had thereon, at which the court directed a verdict for relators. The judgment entered thereon was reversed by the general term on the ground that the case should have gone to the jury on the question whether the expenditure was necessary.

      Sanford H. Steele, for motion; James W. Covert, opposed.
   Barnard, P. J.

The motion for a reargument should be denied. The fact which the deféndant sought to establish on the trial was that there was no such condition of affairs in respect to the relators’ factory as to justify the sheriff hiring men to protect it. There had been a strike and there was an assemblage of angry men collected, but there was no actual violence to property, and no such evidence as to indicate an intent on the part of the workmen to do violence to the factory or other property. The court held that the relators had the right to notify the sheriff that their property was in danger, and the sheriff had no choice. He must get men without regard to actual danger; that the county was liable even if there was no danger. “ It makes no difference if you prove that this man was mistaken; ” “ it is the sheriff who is to* decide.”

The county we think had a right to go to a jury upon the question of the necessity of the sheriff’s action in hiring men on the credit of the county. The county is not liable merely because-the sheriff hires the men if the danger did not exist. The motion for a new trial on the minutes brings up the question. The court,, before the close of the trial, indicated in its decision that there was no issue to try, and at the close of the case ordered a verdict The defendant excepted to this ruling, and subsequently made a motion for a new trial on the minutes and the exception.

We think a new trial should be granted and the motion for a. reargument should be denied, with ten dollars costs.

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


author: Daniels, J.

text:
    Thomas J. Lewis, Resp’t, v. Samuel Wilson, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)
    1. Injunction—Fraud—Assignment of lease.
    Where a complaint alleged that the plaintiff had through fraud and mistake assigned, for an inadequate consideration, to the defendant, a one-half interest in a lease of the premises he was occupying, Held, that equity would enjoin a transfer of the lease by the defendant.
    2. Tender—No payment into court.
    If appeared that the plaintiff had also assigned to the defendant the-other half interest in the lease as security. The complaint alleged a tender of the sum due the defendant, but this had not been paid into court. Held, that this did not defeat the. action, but only went to the question of interest and costs.
    Appeal from an order continuing an injunction.

      August Kohn, for app’lt; David M. Neuberget, for resp’t.
   Daniels, J.

The injunction restrains the defendant from assigning or transferring a lease of premises known as 2220 Fifth, avenue, in the city of New York, and from interfering with, or preventing the plaintiff from continuing in the quiet and peaceable possession and occupation of the premises. The lease was made on or about the 28th of March, 1890, to the plaintiff as-lessee. And early in April he executed and delivered an assignment of a one-half interest in the lease to the defendant absolutely, and of the other half as security for the payment of any indebtedness which the plaintiff should owe to the defendant.. The absolute assignment of one-half of the lease to the defendant is alleged to have been produced by fraud, and without any understanding on the part of the plaintiff that the assignment contained that provision. So far as the assignment transfers an undivided half of the lease as security to the defendant, it has not been made the subject of complaint.

But it is to the assignment of the other half that the plaintiff' alleges himself to have been fraudulently deceived and overreached. And in his affidavit, as well as that made by Michael Casey, who accompanied him at the time as a friend and adviser,, he has stated that the desire of the defendant as it was expressed. was to obtain no more than an assignment of a half interest'in the lease by way of security for the payment of moneys he might advance and goods he might sell to the plaintiff. And that the assignment which was executed was represented to him as extending no farther than that; that he did not read it, but subscribed it upon that representation. It is also alleged that there was danger of the defendant’s assigning the lease to some other person, and in that way preventing the plaintiff from avoiding his assignment to the defendant And the principal object of the action was to prevent such an assignment during the pendency of the suit, and to obtain a judgment for the re-assignment of the lease to the plaintiff. And to secure that object, it 'has been stated and alleged that the plaintiff tendered and offered to pay the defendant the sum of $2,950 owing to him for money advanced and goods delivered. And that this was refused by the defendánt, who also refused to re-assign the lease to the plaintiff.

This statement.of the plaintiff’s case has been controverted by the defendant himself, and three other persons, whose affidavits were read upon the motion for the continuance of the injunction. In the affidavit of the defendant, it is stated by him that he was to have the absolute assignment of one-half of the lease for his services in its procurement, but the performance of which has been positively denied by the plaintiff. As to the other half, there is no substantial difference between himself and the plaintiff. But it has been stated further by the defendant that he was also to have one-half the profits of the business of the plaintiff in lieu of commissions, brokerage or salary. And the statement of these facts is, in substance, repeated in the affidavit of Cotton W. Bean, who is the person who drew the assignment, and in whose presence it was executed.

But the force and effect of his affidavit is greatly reduced, even if the affidavit itself should not be wholly excluded from consideration, by the additional circumstance mentioned on behalf of the plaintiff, that Mr. Bean was represented to him to be an attorney, and was consulted and employed- concerning the assignment in that capacity. And if he did sustain that relation to the business, it is certainly, to say the least, very doubtful whether his evidence could be added in this manner to that of the defendant as to these circumstances. As a matter of fact it appears that he was not an attorney. But where a person may be employed by another, or by others, in that capacity, and upon the understanding that that is the position and office of the person employed, the same disability should be applied to prevent the disclosure of what may have in that manner been elicited from either of the parties as it would be where the individual employed was in fact an attorney at law. At all events, this person was acting in the interest of the defendant in obtaining this assignment, and was identified to that extent with the interests and objects of the defendant. The affidavits of George St John and William BL Emerson, who were in the employment of the defendant, also tend to confirm his statements concerning the nature of the contract made with the plaintiff, and the extent of that contract But these statements of what is alleged to have been the agreement are not entirely probable, for there seems to be no good reason for-supposing that the plaintiff would have assigned absolutely one-half of this lease to the defendant as a compensation for his time,, trouble, brokerage and commission in endeavoring to obtain it, and in addition to that give him one-half of the net profits of the business for the same consideration. The interests agreed to be transferred and assigned are disproportioned to the compensation which could properly be claimed for any services performed by the defendant in this respect There is a striking inadequacy in the consideration mentioned for the concessions alleged to have been made by the plaintiff. And that circumstance has a decided tendency to reduce the credit of the persons making these-affidavits.

It is not probable, for the service alleged to have been performed, but absolutely denied by the plaintiff, that one-half of this lease, which is stated to have been valuable and for a term of five years, .with the privilege of another five, together with half the net profits of the business, would in this manner have been assigned and transferred to the defendant And as his position is affected by this degree of improbability there, was sufficient in the case, by way of proof, to sustain the continuance of the injunction. For this court, as a court of equity, under the circumstances disclosed in support of the action, has jurisdiction over it and to award the relief,,, if the evidence shall justify the-plaintiff’s right to it, which has been demanded in the complaint. Valentine v. Richardt, 126 N. Y., 272; 37 St. Rep., 12.

The case is not only one where the remedy at law by way of' damages would be very likely to prove inadequate, but in addition to that it is for the redress of an alleged fraud on the part of the-defendant, as well as a mistake on behalf of the plaintiff leading to the execution of this assignment And that presents a familiar cause of action within the jurisdiction of a court of equity.

It has not been alleged in the complaint or stated in the affidavits-that the sum of money which was tendered to the defendant has-been paid into court, as'that was required by the regular course-of practice. Halpin v. Phenix Ins. Co., 118 N. Y., 165; 28 St. Rep., 788.

But the omission of that allegation, or of the payment of the money into' court, will not necessarily defeat the right of the plaintiff to maintain the action. The object of the tender was to prevent the future increase of interest, and to charge the defendant, with costs. It was not indispensable that the money should be paid into court to entitle the plaintiff to succeed in the suit. He-may, on account of the failure to pay the money into court, be-charged with interest from the time of the tender, as well as with the-costs of the action if that in the end shall be determined to be-just and equitable. But he will still be allowed to maintain it in. case the proof concerning the facts shall substantially sustain them, as they have been charged and alleged. As the case now appears, the order was justifiable, although the defendant has denied any intention on his part to dispose of this lease. That does not absolutely answer the application, for while he may, at the present time, have no such disposition, a change in this respect may take place producing such action hereafter, which would have the effect of defeating the plaintiff’s right to relief, even though the facts would justify the suit so far as it stands against the defendant. The order should be affirmed, with ten dollars costs and the disbursements.

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


author: Andrews, J.

text:
    John Brooks, App’lt, v. Samuel B. Dick et al., Impl’d, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    Railroad—Reorganization—Exchange oe bonds—Ultra vires.
    The property of a railroad company was sold on foreclosure and was bought by a committee of bondholders. Prior liens existed. The committee was authorized to exchange the bonds which they represented for the.bonds of a new company or those of any consolidated company, the principal and accrued interest upon which should be equal to their own; and was also authorized to pay off the claims against the company. Held, that both provisions must be construed together. That the committee might contract with the projectors of a consolidated road for the payment of the liabilities of the old road and to that end might use the bonds; and that such contract was not ultra vires. That a bondholder was not by virtue of the provision for an exchange of bonds at an equal value entitled to receive the same amount of bonds in a new corporation which he had in the old.
    Appeal from a judgment sustaining a demurrer interposed by the defendants, Dick and A 0. Huidenkoper, and dismissing the complaint as to those defendants.

      W. M. Safford, for app’lt; G. Walter Artz, for resp’ts.
   Andrews, J.

The plaintiff was the owner of $39,500 of first mortgage bonds of the Shenango & Alleghany Railroad Company. The • defendants Murray and F. W. Huidekoper, Irwin Walker and Rawle and Smith, are a committee appointed by and representing plaintiff and other bondholders, and having the powers conferred by the paper, exhibit “A,” ■ attached to the complaint. Said committee entered into an agreement with the defendants Diek and A. C. Huidekoper, set forth in the paper, exhibit “ B,” attached to the complaint.

After the contract in said Exhibit “ B ” had been partially performed, the plaintiff brought this action, alleging in his complaint that the contract was ultra vires of the committee, and was executed in fraud of the rights of himself and other bondholders, and asked as relief that said contract should be annulled, and that an injunction should be granted restraining the delivery to the defendants Dick and A. 0. Huidekoper of certain bonds. The defendants, Dick and A. C. Huidekoper, demurred to the complaint, on the ground that, as to them, it did not state facts sufficient to constitute a cause of action. This demurrer was sustained by the special term, and a judgment was thereupon entered dismissing the complaint as to those defendants, and from such judgment this appeal is taken.

It appears by the opinion of the learned judge, before whom the case was tried, at special term, that the grounds of his decision were that the complaint did not show that the plaintiff would be injured if the contract in Exhibit “ B ” should be fully-carried out; that the committee had authority to make the contract contained in said Exhibit “ B; ” that the defendants Dick and A. 0. Huidekoper did not occupy a trust relation towards the plaintiff ; and that if the said contract was in fact injurious to the plaintiff, his only remedy was against the individuals composing that committee.

The complaint in this casa abounds in charges of fraud, conspiracy and willful misconduct on the part of said committee, but it is well settled that such allegations in a pleading amount to nothing, unless accompanied by allegations of specific facts tending to sustain such general charges. Counsel for the plaintiff refers in his brief to two specific allegations of the complaint, which will be noticed hereafter, and then says: “But the complaint in this suit is drawn upon the theory that the contract Exhibit “ B ” is ultra vires, and that the committee had no power to make the contract, the fourth paragraph of the complaint averring that the plaintiff was induced to enter into the agreement in particular reliance upon the tenth paragraph of the agreement and power marked Exhibit A.’

“We authorize the committee to exchange the bonds to be received by it as aforesaid, or any receiver’s certificates or claims against the present railroad company or its property, or liens upon its property which they may have purchased hereunder, or any indebtedness of the railroad company, for advances they may have made to it hereunder, for any mortgage bonds of the present railroad company, or any further consolidations thereof approved by them, the principal and accrued interest of which shall not be less than the principal and accrued interest of bonds given in exchange therefor, and the complaint alleges that the said committee well knowing the premises, and well knowing the reliance placed by the plaintiff upon such clause in said agreement, and willfully intending to disregard the same and to deprive the plaintiff of his property, entered into the agreement marked Exhibit' B, wherein and whereby fully one-fourth of the whole trust estate, so far as the same was represented by bonds, and fully three-fourths of the whole trust estate, so far as the same was represented by stock, • is transferred to Samuel B. Dick and Arthur 0. Huidekoper. And the eighth paragraph of said complaint alleges that the agreement was made without authority by said committee, and is without the scope of the powers of said committee.” So far as it is possible to understand the grievance of which the plaintiff complains, it is this: he was the owner of $39,500 of bonds which passed into the control of the committee. He concedes that the committee had the right to exchange these bonds as they did for other bonds, but he contends that by the terms of the agreement between the bondholders and the committee he was to receive back an equal amount, that is to say, $39,500 of the bonds received in exchange for his bonds, and because the committee entered into a contract by which one-fourth of these bonds are, to be used to pay off certain indebtedness of the company which issued the plaintiff’s-bonds, the committee has exceeded its powers. We do not think this claim of the plaintiff is well founded, but the only way in which the matter can be made clear is by a consideration in detail of the situation as it existed before the papers Exhibit A and B were executed, and of the contents of those papers themselves, taken in connection with the allegations of the complaint.

The mortgage given by the Shenango & Alleghany Railroad Company to secure bonds, of which the $39,500 held by plaintiff were part, was foreclosed. Upon the sale the property was bought in by three individuals, Shryock, Eowler and Whittridge, who were a committee of the bondholders. Subsequently this committee transferred and conveyed the property to the Pittsburgh, Shenango & Lake Erie Railroad Company, which thereupon issued $1,200,000 first mortgage bonds, and $1,200,000 of stock, for the purpose of paying for such property. Said bonds were hypothecated with the Central Trust Company to secure certain advances made by that Company in the course of the foreclosure.

The Pittsburgh, Shenango & Lake Erie Railroad Company was subsequently consolidated with two other companies, and $1,200,000 of tlie consolidated company’s stock were issued to the committee in place of the $1,200,000 of stock which they had previously received. In this situation of affairs, the committee being desirous to be relieved from their trust, the bondholders appointed a new committee, and conferred upon that committee the powers-contained in the said Exhibit A attached to the complaint. By that paper the bondholders signing it united their interests in and to said bonds and stock into a common fund or estate, to be managed by said committee under the powers therein set forth. Those powers were- to receive all said bonds and stocks, and to pay the advances for which said bonds were hypothecated, and interest and all reasonable expenses incurred by the trustees, including charges of attorneys and counsel; to buy either for cash or upon an agreement for benefits, payments or securities which the said committee could perform the interest of any person not a party to the agreement, entitled upon distribution to any of said bonds and stocks held by the former committee, and to receive the same; to have all stocks received and transferred into their names, and to vote upon and to exercise all the rights and powers of stockholders upon and with respect to said stock, and to exercise all the rights of bondholders upon and with respect to all bonds-received by them; to buy for the said common fund or estate any of the receiver’s certificates, and any claims against the railroad company or its property, or liens upon any of its property, or any of the stock of said company; to make advances to the railroad company, to be used by it only to pay present debts, to remove liens, to compromise present claims against it or its property, to provide necessary equipment or to complete construction; to employ attorneys and counsel, to pledge or hypothecate any of the bonds, stocks, or other assets which should come into their hands upon such terms as to them should seem wise, in order to raise money for any of the purposes for which expenditures were authorized ; to exchange said bonds or any receiver’s certificates or claims against the railroad company, or its property or liens upon its property, which they might have purchased, or any indebtedness of the company for advances they might make to it, for any mortgage bonds of said company, or any further consolidations thereof, approved by them, the principal and accrued interest of which should not be less than the principal and accrued interest of bonds given in exchange therefor, and the cost with interest at six per cent of all receiver’s certificates, claims, liens or indebtedness given in exchange; to bring about a sale of the property of the railroad company, or any part thereof, under a judgment of the court for the enforcement of any lien or liens, securities and bonds, certificates or other obligations held by the committee, and at any such sale to purchase the property sold, and to organize a new corporation, to take it and convey the same to it, receiving bonds or stock or both therefor, as they might determine; and to sell the whole or any part of the common fund or estate. This paper was dated February 1, 1890', and thereafter, on August 13, 1890, the committee entered into the agreement, Exhibit B, of which the plaintiff complains. That agreement provides for the consolidation of the Pittsburgh, Shenango & Lake Erie Railroad Company, with the Pittsburgh, Butler & Shenango Railroad Company. By the terms of this agreement the consolidated company was to issue its stock, share for share, for the stock .of the two companies, the Pittsburgh, Butler & Shenango Company receiving $500,000, and the Pittsburgh, Shenango & Lake Erie Company receiving $2,500;000. The consolidated company was also to issue new mortgage bonds upon the whole property, of which the Pittsburgh, Butler & Shenango Railroad Company was to receive $500,000 in exchange for $500,000 of its own bonds, and the committee was to receive $1,200,000 of such bonds in exchange for an equal amount of the bonds of the Pittsburgh, Shenango & Lake Erie Railroad Company held by it. Dick and A. C. Huidekoper (in the agreement called the “ contractors ”) agreed to cause the Pittsburgh, Butler & Shenango Company to do all" that might be necessary on the part of that company to perfect the consolidation and exchange of bonds, and the committee also agreed that it would, so far as it had power, cause the Pittsburgh, Shenango & Lake Erie Company to do the soma The contractors also agreed to cause all those who might have, but had not, come into the agreement under which the committee was acting to come in, so that the committee should represent all the stock and bonds of the Pittsburgh, Shenango & Lake Erie Company _ formerly held by the previous committee.

The contractors also agreed to put the Pittsburgh, Butler & Shenango Company in such condition that $500,000 of the stock and $500,000 of bonds should represent all interests of every kind therein, so that it should be free from debt and its property free from liens. The contractors also agreed to purchase the receiver’s certificates specified in schedule A, attached to the agreement, and cause the same to be cancelled, and to pay all the indebtedness specified in said schedule A; also, to discharge all debts of the Pittsburgh, Shenango & Lake Erie Railroad Company, and liens or clouds upon its property, set forth in schedule B, attached to the agreement. The committee agreed that so soon as it should receive the bonds and stock of the consolidated company in exchange for the $1,200,000 of bonds and $1,550,000 of stock of the Pittsburgh, Shenango & Lake Erie Railroad Company, held by the committee, they would deliver to the contractors $480,000 of said bonds, and $907,100 of said stock, provided the contractors should have done everything they had agreed to do, except making the payments mentioned in article 2 of schedule B.

And it was further provided that when the contractors should pay the claims mentioned in said article 2 of schedule B, that bonds of the consolidated company should he issued to them upon proper vouchers showing the discharge of the various liens, debts and clouds to an amount equal, at ninety per cent, of the par value of the bonds, to the aggregate amounts of the said loans, debts and clouds. Briefly stated, under this agreement, the committee was to do all in its power to bring about the proposed consolidation and to pay the contractors $480,000 of bonds, and $907,100 of stock; everything else was to be done by the contractors, and the delivery of such bonds and stock to the contractors was not. to take place until they had fully performed their part of the agreement.

It is entirely clear from a consideration of the provisions of said Exhibits A and B that the 'claim of the plaintiff that he was to receive back his $39,500 of bonds of the Pittsburgh, Shenango & Lake Erie Company, or an equal amount of the bonds of some other company, has no foundation whatever. It is true, as above stated, that among the powers conferred'by Exhibit A upon the committee was the power to exchange the twelve hundred thousand dollars of bonds, held by them, for an equal amount of other bonds, of the said last mentioned railroad company, or any further consolidations thereof, and that is exactly what was done; for in exchange for such twelve hundred thousand dollars of bonds, held by them, it is provided in Exhibit B that they shall receive twelve hundred thousand dollars of bonds of the consolidated railroad. In view, however, of the situation of matters, and of the provisions of both Exhibit A and B, the claim that plaintiff and other bondholders were to receive intact the whole twelve hundred thousand dollars of bonds, which should be received by the committee in exchange for a like amount held by them, is preposterous; and if' the plaintiff was acquainted with the contents of Exhibit A, before he signed it, it is impossible to believe that he could have supposed when he signed it that he would receive back intact his $39,500 or an equal amount of some other bonds.

It does not appear that the committee had any other property or funds, or the means of raising any money, except said $1,200,000 of bonds and $1,200,000 of stock in the old company. The claims against the Pittsburgh, Shenango & Lake Erie Railroad Company, and against the property bought by it from the first committee, and which were prior in right to the bonds held by the plaintiff and other bondholders, amounted to about $480,000. Other claims against the company, which were not prior in right to said bonds, but which it was necessary to pay for the protection of such bonds and stock, amounted according to the statements in article 2 of said schedule to about $365,000; and, leaving out the Reid judgment of $75,000, which was a disputed liability, the undisputed liabilities of this character amounted to nearly $300,000, and the committee had no means whatever of paying this undisputed indebtedness of nearly $700,000, except by disposing of a portion of the bonds and stock held by them.

The claim, therefore, that the plaintiff, when he signed Exhibit A, expected to receive back his $39,500 of bonds, or an equal amount of other bonds, is entitled to no consideration whatever. Mor are we able, after a careful examination of the provisions of Exhibits A and B, to say that the committee in entering into the contract in Exhibit B in any manner exceeded their power. It was in contemplation of the parties, when Exhibit A was executed, that the Pittsburgh, Shenango & Lake Erie Company might be consolidated with some other road, because the 10th clause provided for the exchange of $1,200,000 of bonds “•for any mortgage bonds of the present railroad company, or any further consolidation thereof approved by them.” The right to exchange the $1,200,000 of bonds held by the committee was exercised, and under exhibit B they were to receive a like amount of bonds of the consolidated road. We see no reason to doubt, moreover, that the committee had power and authority to transfer to contractors $480,000 of the bonds and $907,100 of the stock held by them. The committee was authorized by Exhibit A to buy and cancel the claims against the railroad enumerated in schedule A. and article 1 of schedule B; they were also authorized to sell the whole or any part of the bonds and stock which they were to receive in exchange. They could have sold a portion of the bonds and stock to the contractors at a fixed price, and have used the money in paying off such liabilities. What they did do was in effect the same thing.

The committee agreed that if the contractors would provide the means to pay off such liabilities, and perform certain services about the consolidation, which would be of advantage to the bondholders, they would convey to the contractors sacli $480,-000 bonds, and $907,100 of stock. What the value was of such of the' bonds and stock to be so transferred to the contractors, does not clearly appear. It may, however, fairly be inferred from all the facts disclosed that it is very much less than par. In the absence of fraud, however, it is immaterial what the value of such bonds and stocks was, so long as the committee had the authority, which they did, to transfer the same.

The only other points made by the learned counsel for the plaintiff in his brief relate to the item of the judgment of $75,-000 and the item o£ $55,000 to be paid to the American Exchange Bank, both of which appear in article 2 of schedule B. It is alleged in the complaint that the judgment never had any existence, and that F. W. Huidekoper, one of the committee had an interest of $5,000 in such sum of $55,000.

It appears, however; by the 8th subdivision of Exhibit B, that the bonds to be used in paying the various claims mentioned in article 2 of schedule B were not to come out of those transferred to the committee, but were to be issued and delivered to the contractors, upon proper vouchers showing the discharge of said liens, debts and clouds. We do not see how the' plaintiff can maintain his action to restrain the payment of those items. The bonds to provide for those items must necessarily be issued under the authority of the directors of the consolidated road, and if plaintiff can maintain an action at all, to prevent the payment of those items, it would seem that it must be brought against such directors. Moreover the bonds to pay the items mentioned in said article 2 of schedule B are only to be issued upon proper vouchers, showing the discharge of such liabilities, and it cannot be assumed, in advance, that bonds will be issued to pay a judgment which has no existence, or a claim which is improper. The presumption is, that if the judgment does not exist, and it is improper to pay a claim in which F. W. Huidekoper has an interest, no vouchers can be presented which will lead to a delivery of bonds in payment of those items.

We are of the opinion that the judgment of the special term should be affirmed, with costs.

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


author: Van Brunt,P.J. Ingraham, J. Daniels, J.

text:
    The People v. The North River Bank. In re Manley.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    1. Bills and notes—Notice of protest—Place of business.
    The endorser testified that he was a resident of New Jersey, but had a place of business in New York city where he received mail; that lie had an office there, but did no business in New York. Held, that within chip. 416 of the Laws of 1857, § 8, he had a "place of business” to which a notice of protest might be mailed.
    2. Same—Evidence.
    What evidence of mailing a notice of protest is sufficient.
    (Van Brunt, P. J., dissents.)
    Appeal by the receiver of the North Eiver Bank from order directing him to pay a dividend on the claim of the respondent as a depositor of said bank.

      Peter A, Hendriclc, for app’It; N. S Spencer, for resp’t.
   Van Brunt,P.J.

(dissenting)—George Manley,the petitioner,was a depositor in the North Eiver Bank in November, 1890, the time of the commencement of this action for its dissolution and of appointment of the appellant as receiver. There is no dispute as to the amount which the respondent had upon deposit at the time of the appointment of the receiver. On the 30th óf January, 1891, the receiver was directed by the court to pay a dividend of thirty per cent on the amount of all deposits. The receiver refused to pay the petitioner the amount of this dividend on his deposit

The petitioner then applied to the court for an order directing the receiver to pay him a dividend.

On this application the receiver excused his refusal upon the ground that he held an unpaid note for $860 made by one Townsend and endorsed by the petitioner which he claimed should be set off upon the petitioner’s dividend. ■ The petitioner claimed that he was not liable upon the note upon the ground that he had not been charged as endorser. A reference was ordered to take proof of the facts as to the petitioner’s liability on the note; and the referee reported that the said petitioner had no place of business in the city of New York, and that the only notice of protest which was sent in time was addressed to him at No. 115 Broadway in the city of New York, and that as the endorser had no place of business or residence in the city of New York, he was not charged as indorser.

We think that the learned referee in coming to this conclusion has adopted a too stringent definition of the words “ place of business ’’ contained in the statute. Laws of 1857, chap. 416, § 3. The statute-has not defined what it means by place of business, nor how much business a man must do at a given locality in order that it. may be considered his place of business within the meaning of the statute. The object of requiring notice of protest to be sent to the endorser promptly after a commercial paper has been dishonored is to give the endorser notice of the fact of the dishonor in order that he may protect himself, and the whole course of legislation upon this subject has been to adopt such a course as will be most likely to give the endorser notice and render it possible for the holder of the paper to comply with the requirements of the statute.

In none of the adjudicated cases has any question similar to the one presented at bar come up for discussion.

The course of decisions prior to the passage of the act of 1857, where the endorser did not reside in the town or place where' the notes were payable, seems to have been to allow service of notice by mail addressed either to the place of residence of the endorser or to the post office at which he was accustomed to receive his letters and papers. Such was the decision in the case of Remer v. Downer, 23 Wend., 620, and Montgomery Co. Bank v. Marsh, 7 N.Y., 481, and the‘statute of 1857 seems to have been, intended to extend the right to serve by mail to those cases in which the residence or place of business of the endorser was in the same city or town where the note might be presented for payment

The learned referee, in referring to this statute of 1857, seems to have fallen into an error by limiting the effect of this statute to those cases in which the endorser resides in the city or town where the note is made payable. Such is certainly not the language, and evidently was not the intention of the legislatura The language is, “ whenever the residence or place of business shall be in the same city or town where the note is made payable, the notice may be served by mail directed to the endorser at such city or town."

But it is claimed that the evidence in this case does not show that the endorser had a place of business within the city of Few York; and this, notwithstanding the fact that the endorser swore that he had. Upon cross-examination the respondent testified distinctly to the question:

“Q. Have you aplace of business in Few York? A. Yes.
“Q. Where is it? A. 115 Broadway, Borell building.
“ Q. And that is where your mail is served, is it not? A. Yes,sir; the mail to Few York.”

He was further asked whether he and his son had not an office at 115 Broadway, and his answer was, “We have an office, but do not do any business in Few York.” His son also swore that he had an office at 115 Broadway, but that he did not conduct .any business there.

We think that within the spirit of the cases above cited the respondent, having a place in the city of Few York where he was accustomed to receive his mail,, having in his own judgment a place of business in the city of Few York, although he did not carry on there merchantable business in the ordinary sense of the term, yet, within the provisions of the statute, he had a place of business to which a notice of protest might be mailed.

We think, therefore, that the referee erred in holding that notice of protest mailed to the endorser at 115 Broadway was not sufficient service in order to charge him as endorser.

Upon an examination of the evidence offered for the purpose ■of establishing the mailing of this notice in view of "the evidence that no such notice was ever received at Fo. 115 Broadway, it may . well be claimed that no sucn notice was ever sent, even to that address.

The evidence offered to prove the sending of such a notice shows that the witnesses examined have no recollection whatever of the mailing of that notice and that it is mere guess-work on their part when they testify in respect thereto. The witness Oonnell in his examination states that he received certain notices in reference to the note in question as to its not being paid and he produced two of them, but he could not give the date exactly as to when they were received, his impression being that they were received the day they were dated, the 26th of January. When asked whether there were any other notices with them, his reply was: “ My recollection is there were notices to Mr. Manley and Mr. Townsend." And then in answer to the question “What was done with those other notices?” he answered “They were sent to Mr. Manley.

“ Q. By whom ? A. By Mr. Robertson. ” Why the notices to Townsend should be sent to Mr. Manley he does not explain. When Mr. Robertson comes to be examined, he is asked:
“Q You have heard the testimony of Mr. Connell, and you are the Mr. Robertson referred to by him ? A. Yes, sir.
“ Q. Fow tell us what you did about mailing those notices ? A. Those notices were sent to the bank.
“ Mr. Spencer: Do you know they were sent to the bank of jour own knowledge?
“ The Witness: I know- because I have seen them addressed a great many times.'
“ Mr. Spencer: These particular notices you know must have been sent to the bank ?
“ The Witness: They must have been, or I would not have, seen them; 1 received them from Mr. Connell.
“ Q. What did -you do with them? A. They were handed tome and I sorted them out ;• they came in two sets, and those to-outside parties, except Mr. Higgins and Mr. Ingersoll, the cashier,, were put in envelopes and directed to ’ the parties. to whom they belonged.
“ Q. How did you direct them, and where ? A. I directed them to the addresses of those parties.
“ Q. Do you now recollect what address you directed the one-to Mr. Manley to ? A. His address was -115 Broadway-; I, of course, must have addressed it to that address; I do not remember any other address.” ■ .

It is clear that the witness had no. recollection whatever when he testified as to what address he had put on the envelope. . He-is testifying as to what his custom was, not as to what he recollects having done with these particular notices. He is speaking about, a great many notices. He says, ‘“The notices were handed to me and I sent them out. • They came- in two sets and those to outside parties were put in envelopes and directed -to the parties to whom they belonged and that he-directed-them to the addresses of those parties, evidently referring to the manner in which business-was.ordinarily done, but without-any present recollection. He is then asked: ' •

“ Q. Did you mail those yourself ? A. Ho sir.
“ Q. "What didyou do -with-them ? A; I addressed them and sealed them- aftd-'-p'ut them in the boxy our letter box.
“Q. You recollect sealing them and addressing them and putting them in the box ? A. Yes, sir.”
’ Upon cross-examination he is asked: ■
“ Q. How many other notes were -protested on the 26th of January, 1891' ? A. That I could not tell you, how many were protested.
“Q. Were there a number? A.. I could.not state how many there were.
“ Q. Were there more than oné? A. I could .not say that either.
“ Q. Do you mean you do not recollect anything about it? A. I recollect that there were notices on that day, but how many there were I- do not know. Undoubtedly there were, because on the 26th, I do not say that the notices came on the 26th, they might have been posted on the 26th and come the next morning or that day.- ■
“Q, Were there notices coming every- day? A. There were.
“Q. A’number of them all the time ? A. Coming in, quite a good many at this time, protested paper, quite a number of, them coming in; I could’ not keep track so as to say -or tell how many were coming in. Of course, they were coming in, and I had charge of those as well as sending them off. I turned those over every day. I had charge of those myself and had a file, and I sent off those to be sent off, and those received I put on this file to be kept for the receiver and cashier of the bank.
“ Q. Did you keep any record of the notices you sent off? A ■Only those.
“ Q. You only kept those notices which were sent to Mr. Higgins and Mr. Ingersoll ? A. That is all the record of the notices I kept.
“ Q. You kept no record of the notices you sent off ? A. No.”
He is asked: “You have no independent recollection of these particular notices ? A. I have recollection that I sent those off, that is, they have all been sent off according as they came in by me.
“ Q. That is all the recollection you have ? • A. That is all the recollection I have.”

Again clearly showing that the witness had no recollection in respect to the transaction, and was only testifying as to his method •of business.

He is asked how he addressed the letter enclosing the notice to Manley. He says : “I think it was George A. Manley.

“ Q. Is that all ? A I guess the street, number and city.
“ Q. Tell me precisely what it was? A I cannot exactly say just what it was. I know that the notice would read George A. Manley and whatever his-address was.”
And, finally, as his best recollection as to what was written on the envelope, he says: “George A. Manley, 115 Broadway, city. We generally put city on it.
“ Q. You say that because you think that is what it ought to be ? A. I don’t say it from what it ought to be. Of course, that is what I put on. I say I must have put it on ‘ George A. Manley, 115 Broadway,’ as that is the address we got, and the address we got would be the address I would naturally take to put on.”

It appears that there was no such person as George A. Manley; that it was George Manley.

And further on, when asked, “Do you recollect this apart from the other notices sent out that day ? ” he says: “Not particularly apart from the others because I sent them all out.” And when asked what he did with the notices, he says he put them in the tin box alongside of the collection desk; that he generally put them in himself, he would not say that he always did, but if he superscribed them he generally put them in himself. But when asked as to the day or the hour in which this had been done by him, he was entirely unable to say; and his whole testimony in that respect is evidently based upon what the course of business was.

It is true upon redirect examination he said that he knew what those notices were, and as soon as he received them from Connell he immediately mailed them away, which clearly was not the fact, because he admits that he did not do any mailing at all, but only put them in the box alongside the collection desk.

In order to prove the mailing of the-notice the witness Flood was examined, and his testimony was simply to the effect that it was a part of his duty to take charge of the mailing of letters from the Horth River Bank, that he took the letters out of the box,, stamped them, and took them to the post office, but that he had not the slightest recollection of mailing any letters whatever to-Manley. When asked if he knew that he took all the letters he' found in the box he only says: “If there were any letters sent to him that day I took them; there was nobody else to take them.” He did not testify as to any date at the time this answer was-made; he kept' no record of the letters he mailed, and could not. say how many, times he went to the post office on the 26th of January, 1891, or on the 27th, but was only testifying as to his. practice in mailing the letters which he found in the box.

I do not think that upon testimony of this kind the court, ought to hold that the mailing of the notice is established in this, proceeding. It should be left to a jury to determine as to whether any such notice was sent or not.

I think, therefore, that the order appealed from should be affirmed and the motion granted, with leave however upon the part of the receiver of the bank to sue the petitioner upon his endorsement upon the note in question, these proceedings to be no bar to such an action.

Ingraham, J.

I concur with the presiding justice that the-petitioner had a place of business at 115 Broadway, Hew York,, and that a notice of protest mailed to him there was sufficient to charge him as endorser upon the note in question.

I do not think, however, that there should be a new hearing.

The reference was not to hear and determine, but to take testimony as to a question of fact arising upon a motion and to report to the court The testimony has been taken and is now before; the court

It is not suggested that either party has any additional testimony that can aid the court in determining the question and I think it our duty to either affirm the order or reverse the order as the facts require. The only question that it is necessary to discuss, except the one decided by the presiding justice, is whether it is established by the evidence that the notice of protest was-mailed on the 27th day of January, 1891, addressed to the petitioner at his place of business, 115 Broadway, Hew York.

The referee finds that such notice was so mailed, and I think his finding is sustained by the evidence.

Connell, who was in the employ of the receiver, testified that he received the notice of protest from the notary either on the 26th or 27th.of January; that at the time he received the notices-he handed them to his assistant, Robertson ; Robertson swears that, two notices were handed to him by Connell; one addressed to Townsend, the maker of the note, and one- to the petitioner, the-endorser; that he put them in envelopes and addressed them to the respective parties and put them in the letter box. He was-then asked the question: “You recollect sealing them and addressing them and putting them in the box ” to which he answered, “ Yes, sir,” and he remembered it from getting the petitioner’s address from the “ address book ” kept by the bank

Flood, who was a messenger in the employ of the receiver, testified that it was his duty to take the letters from the letter box,, put stamps on them and deposit them in the post office. That, on this day he took all the letters from the letter box, stamped them and deposited them in the post office,, and that he had full charge of the mailing of letters, and it would appear that the. notice of protest to the maker of the note sent at the same time-was duly received by him.

There was not the slightest evidence tending to contradict this testimony, except the fact that the son of the petitioner says that he never received the letter at 115 Broadway, but this does not. overcome the direct evidence before referred to.

It appears that there was no one employed at the office, No. 115 Broadway; that the petitioner’s son was in the habit of coming to the office every day. That when his business called him out of the office he locked the door, and that any letters coming-when he was absent would be put through a slit in the door and fall on the.floor. That a letter coming when Mr. Manley was-absent from the office might have been overlooked on the floor and so swept away and lost is not improbable, and I think on the. evidence before us that the petitioner is liable for the note.

It follows that the order appealed from should be reversed,, with ten dollars costs and disbursements, and the motion denied,, with ten dollars costs and disbursements.

Daniels, J.

I think that the evidence of the witnesses, together with the probability arising out of the mode of transacting the business, supports the conclusion that the notice of the-dishonor of the note was, in fact, properly and legally given. And the order should -be reversed and the motion denied, as directed by Mr. Justice Ingraham.


text:
    The Ciancimino’s Towing & Transportation Co., Resp’t. v. Peter Ciancimino, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    1. Injunction—Disobedience on.
    A defendant who had been forbidden by an injunction order from doing any acts as business manager of a corporation, and from trespassing upon its premises, went to the office, under the advice of counsel, took possession, opened the safe, removed papers and changed the location of the office. Held, a violation of the injunction.
    2. Same—Advice op counsel.
    The advice of counsel is not a defence to one who has disobeyed an order of the court, and its only effect is that it may be considered in mitigation of the punishment.
    Appeal from an order imposing punishment upon the defendant for violating an injunction order issued in the action. -

      John J. McKelvey and William H. Shepard, for app’lt j Henry II. Man, for resp’t.
   Daniels, J.

The defendant was appointed the business manager of the in for the term of one That term expired on the 2nd of January!, 1890, but no successor was appointed for him and he held over until the 3d of April, 1890.' At that time another person was appointed as business manager of 'the ■company in place of the defendant. This appointment appears to have been strictly regular and fully authorized by the by-laws ■of the corporation, as well as the ‘ terms of the appointment of the defendant, and of ■ the contract made with him on the 15th of February, 1889.

On the 2d of January, 1891, the annual meeting of the stockholders was held, at which a board of trustees was; in' form certainly, elected to hold’ their office for one year from that date, nnd this board continued in the position of'business manager the j>erson who had'been appointed to that office'as the successor of the defendant, and he discharged the duties of the office up to and including the 25th of April, 1891. On the same 2d day of January, 1891, the defendant and others acting with him also held a •stockholders’ meeting at which it is claimed other persons than those already referred to-were elected the trustees of the corporation for the' ensuing year, and they in. form elected the defendant president of the company, and appointed him its business manager. He threatened to take possession of the office and to execute its authority and perform its duties, and to prevent that purpose from being carried into execution this action was brought and an injunction order was issued in it, on the 8th Of April, 1890. ■ By this order the defendant was enjoined and -restrained, until the further order of the court, from representing himself to be the business manager, or otherwise officially connected with the plaintiff, except as a member of the board of trustees, or from ■doing any act or thing, or any duty appertaining to the office of business manager, and from collecting.any mo.ney ,due or to become due to the plaintiff, and from doing any act or making any .statement which might be injurious to the plaintiff’s interest, and from trespassing, intruding, or attempting to, occupy, or enter by force, or otherwise, the plaintiff’s premises, wherever the same might be. This order together with the affidavits upon which it was made were served upon the defendant personally, on the 9th •of April, 1890, together with a copy of the summons and complaint, and the original injunction order was at that time exhibited to him. By the further terms of the order ,he was required to show cause on the 14th of April, why. this injunction or some order of a similar import should not be continued until the final judgment in the action.

Pursuant to this part of the order, the motion came on for the -continuance of the injunction on the 14th of April, and two days .afterwards a further order was made continuing the, preceding order, in full force and effect until the final judgment in the action, and it was also ordered that the defendant should be and was enjoined and restrained until the final judgment from representing himself to be the business manager, or otherwise officially connected with' the plaintiff, except as a member of the board of trustees, and from doing any act or thing or performing any act or duty appertaining to the office of business manager of the plaintiff, or from collecting any money- due to it, and from trespassing, or attempting to occupy or enter by force plaintiff’s premises, wherever the same might be. This latter order was not served upon the defendant, but its contents are conceded by him to have been explained to him by his own counsel, who informed him that the injunction order first made, or an order of like import, had been continued against him upon the argument of the motion brought on under the order to show cause, and there is no pretense made by him or in his behalf that he was not in this manner fully apprised of all the terms of the order continuing the injunction until the final judgment in the action.

After his selection as the business manager of the company by the trustees elected with him, and on the 25th of April, 1891, the defendant, together with other persons, went into the office of the company, where they found only an office boy in attendance and in possession, and by his affidavit, which, without doubt, is true, it is stated that they ordered him out, and he, being afraid of them, went out, leaving them in possession of the .office. They afterwards opened the safe, either, by boring into the lock and unlocking it, or procuring a person to unlock it, and took out the papers of the company, which had been deposited therein. And an order was issued by the defendant in the capacity of business manager to the captain of the scow Dauntless, which was the property of the company, directing him that the bearer of the order would take charge of the scow instead of the captain previously having control of her, and directing the latter to repair to the. office, there to be paid off: and blank orders .were procured and provided for use in the discharge of the duties of this office of business manager by the defendant. ■

Further action was taken for the removal of the office from the place where it was located to the city of Brooklyn. The defendant and the persons acting with him, before any final removal of the office was effected, also refused to permit the other persons-who had been elected trustees of the company on the 2d of January, 1891, from entering into or making use of this office.

This proceeding, so far as the defendant participated in it, was. a clear violation of the injunction orders. He had not only been forbidden by the first order, which was continued in force, from performing any act, thing or duty appertaining to the office of business manager of the company, but also from intruding into, or attempting to occupy or enter by force,or otherwise, the plaintiff’s premises. And the second order was one of the same import The order which he issued to the captain of the Dauntless was a violation of this restraint, and so. was the seizure of the-office by himself and the .other persons acting in conjunction with him, and the case was accordingly one, as. the defendant had been fully informed by the service of the first injunction order upon him and the statement made to him by his own counsel of the continuance of that injunction, in which it became the duty of the court to punish him for this .violation of the injunction, and the punishment to which he had subjected himself was prescribed either by subd, 8, of § 8 • of the Code of Civil Procedure or by ■§§ 13 and 2281 of that Code, and it was so considered and held by the court before which the application was made for his punishment, and it was directed by the court that he should be imprisoned for the period of thirty days, and pay a fine of $250, .and remain in the custody of the sheriff until the fine should be paid. But in his behalf it was shown by affidavits that he had been advised by counsel that he was entitled peaceably to take possession of the office of the company and to resume and dis■charge the duties of its business manager, by reason of the election on the 2d of January, 1891, and his appointment to that position by the trustees then claiming to be elected.

It is quite evident from the affidavits that there were two parties endeavoring to obtain the management of the affairs of this ■company, and that each party held an election on the 2d of January, 1891, and the probability seems to be that the trustees who were adverse to the defendant and his associates were elected as ;such at the election held by the stockholders favorable to them, ■and that they accordingly had the authority of continuing the person in his office as business manager who had "previously been .appointed as the successor of the defendant; and that these trustees were legally in possession of the office and affairs of the ■company, and that must have been so considered by the court in the making and directing the continuance of the injunction orders, for otherwise those orders were not capable of "being made or maintained. But even if the election of the defendant and his" associates as trustees by the stockholders voting in their favor had been legal and that was followed by his selection as the business manager of the company by those trustees, it did not justify him in violating or disregarding the restraints contained in the injunction orders, and neither he himself, nor his counsel, had any good reason to place that construction on the orders for they were not made to depend for their continuance upon any subsequent election or appointment of the defendant to this office of business manager; but the first order was expressly continued until the hearing and further order of the court, and when that further ■order was made by the court, the first order was continued in full force and effect until the final judgment in the action, and so .also were the like restraints expressly mentioned in the second ■order.

Both orders were extended to the time of the recovery of final judgment in the suit; and there was accordingly no plausible ground for construing them to be dependent upon any election which should be held by the stockholders of the company after the time the orders were made and prior to the recovery of the judgment in the action. And the advice which was given to the defendant by counsel, that he could safely disregard the orders by obtaining the peaceable possession of the office in violation of their restraints, was without foundation either in fact or in law, and that advice afforded him no such protection as should shield him from punishment for violating the orders by the conduct in which he was afterwards engaged.'

If it should be held that the advice of counsel irrespective of its propriety would protect a party against liability from punishment for violating an injunction, then a means would be at once devised by which an injunction order could be set at defiance .and thoroughly nullified, for the party desirous of avoiding its restraints might very well consult counsel on the subject who .should be selected with a view of furnishing the advice that the injunction might be disregarded. But the law has supplied no alternative of that description for the protection of a party who, by his conduct, violates the restraints of an injunction.

Still it has been considered by the courts, where the party has received this advice, even though it should not have been given, •-that it is a circumstance to be taken into consideration by way of mitigating the punishment which would • otherwise be imposed upon the party for violating the injunction. People v. Aitken, 19 Hun, 327; Hatton v. McFaddin, 16 St. Rep., 944; Erie Ry. Co. v. Ramsey, 45 N. Y., 637, 654; Walters v. Kenyon, 4 St. Rep., 398.

The defendant has sworn that he acted upon this advice believing it to be correct and reliable, but it is not easy to see how he could have been so far mistaken, even by what was said to him by his counsel, when he had before him the first order, which had been continued to the time of the recovery of a judgment in the action, restraining him from the acts he is shown to have performed. If the election and appointment under which he claimed 4o have been restored-to the office regularly secured that result, then it was a reason for a motion to the court to vacate the injunction orders, but it afforded no legal ground for the violation of their directions as long as they had been continued in force to the time of the recovery of judgment, and the defendant must have known that no judgment had been recovered in the action, .and for that reason that the orders still remained in forca

But in directing his imprisonment for a period of thirty days • the punishment appears to have been more severe than his conduct required should bo imposed upon him, for no actual loss or injury was sustained by the company as the result of the mis- ■ conduct on his part which violated the injunction. He had, it is true, impaired and defeated the operation of* the injunction, but that would, under the circumstances, be adequately punished by the fine which was imposed upon him, without the addition ■of the thirty days imprisonment If his counsel, who gave him the advice, had been joined with him in the proceeding for the ■punishment, as he might have been, there is no reason for supposing that it would have been extended beyond the imposition ■of the fine, and as both the counsel and the defendant were equally in fault in bringing about the violation of the injunction, the .former should not be subjected to any greater seventy than that by way of punishment. And the order should be modified by reducing that part directing the defendant’s imprisonment for the period of thirty days to the period of ten days and affirmed so far as it imposed a fine of $250 and directed him-to be committed to the custody of the sheriff of the county of Hew York, and there detained until the fine should be paid, and as modified in this manner the order should be affirmed, without .costs of the appeal. .

' Van Brunt; P. J., concurs. •


author: Van Brunt, P. J.

text:
    Robert Herbst, App’lt, v. Lionel Hagenaers, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    1. Arbitration—Award—Requisites.
    An award made by arbitrators under the Code of Civil Procedure should be final and definite.

      2. -Same. .. . • • ■ ■.
    Where, the question of the rights of partners in a copartnership was-submitted ,to arbitrators and they awarded one partner a definite sum and also the sum which might bo due him from the firm on April 18, 1891, Held, that the award was void as indefinite and incomplete.
    Appeal from order denying motion, to set aside award and from judgment entered on decision of arbitrators.

      W. JV Cohen, fqr app’lt; L. W. Bussell, for resp’t.
   Van Brunt, P. J.

Prior to April, 1891, the parties to this,

motion had been-copartners, and on thelSth of April said partnership was by mutual consent dissolved,' and the parties agreed to stibmit to arbitration the question as tó what their respective interests in said copartnership were, and also' what compensation, if any, either party was entitled to in consequence of the dissolution of the partnership, and Mr. C. C. Abell and Mri C. A. Johnson were appointed arbitrators; and by the agreement it was provided that the judgment to be entered upon their award should, be final in the premises, and that it should be filed in the supreme court as for á judgment on the merits of the question in controvérsy. '

The arbitrators met and heard the proofs, and on the 29th of April, 1891, made an award' by which it was provided that the appellant Herbst was to engage to pay áll the liabilities of the firm existing' on the" 18th of April, 1891, and to release the respondent Hagenaers from all responsibility to said firm on and from that date, and that thé appellant was to collect the firm’s outstanding accounts. The award further provided that the amount which might be due the respondent from the firm on the l'8th of April, 1891, irrespective of the amount of the award thereafter given, was to-be paid to him in excess of the amount of-the award, "which amount and the awmrd was to be paid in cash within ten days. The appellant! was to continue the business in the firm náme and the firm’s books arid papers were to remain his property as provided by the copartnership agreement, and the sum of $6,336 was awarded to the "respondent, which did not include the amount due to the respondent on the books of the firm on the"18th of April, 1891.

' On the 6th of May,'. 1891, the arbitrators reconvened and made a supplemental award. Motions, were thereupon made to vacate the awards upon various grounds and also a motion to confirm the same. The motion to vacate was denied, and the motion to confirm granted and judgment was entered upon the original award irrespective of the supplemental award, and from the order denying the motion to vacate said judgment this appeal is taken.

The grounds upon which it is sought to vacate were, first, that the arbitrators illegally "refused to hear proper and legal testimony; that they are chargeable with gross partiality and misconduct; that they exceeded their powers; that the award is not certain, final and conclusive; that the pretended supplemental award is unauthorized and void ; and even were the supplemental award valid, the entire award is so grossly excessive as to be fraudulent in law, and another ground which it is not necessary to state here.

No action having been taken upon the supplemental award and do judgment entered thereon it is not necessary to discuss the question as to the right of the arbitrators to make such award.

The claim that the arbitrators illegally refused to hear evidence is not sustained by the record. It is true’ that the appellant by his affidavit claims that the arbitrators refused to hear evidence whicli he offered. But it is to be observed that his affidavit is somewhat indefinite in this particular, and it is denied both by •one'of the arbitrators and by the respondent that he ever offered to produce such evidence or testimony; and it is denied by the arbitrator that the letter of the appellant offering to produce testimony was ever received by him. There is therefore no ground made out upon the papers for vacating the award for this reason.

The charge of gross partiality and misconduct is not made out It is claimed upon the part of the appellant that one of the arbitrators was under the domination of the other, but there is no evidence of that kind. Neither is there any evidence that the arbitrators exceeded their powers. Neither is the claim that they refused to allow the appellant’s stenographer to take a record of the proceedings well taken.. It would certainly be rather remarkable if the record of a proceeding semi-judicial in its nature was to be kept by the employee of one of the parties.-

But that the award is not certain, final and conclusive seems to be established upon its face.

It is provided by § 2374 of the Code that in certain cases the court specified in the submission must make an order vacating the award; and amongst others, where the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted has not been made. Now the question submitted to the arbitrators in this case was the question what the respective interests of the copartners in said copartnership were, and also what compensation, if any, either party was entitled to in consequence of the dissolution of the partnership, and it was provided that a judgment might be entered upon this award. Therefore, there was nothing to be left undetermined or indefinite .so that it might not be' executed as a judgment of the court

We find that in the‘award a definite sum is "awarded to the respondent, and an indefinite sum, namely, the sum which might be due to the respondent on the 18th of April, 1891, from the firm of which he was a member, irrespective of the abiount which had been awarded. This is clearly so indefinite that no-judgment whatever could be entered upon the same. The submission was that they should determine the respective interests of the partners in the firm, and what compensation, if any, either party was entitled to in consequence of the dissolution. The arbitration was intended to wind up the affairs of the concern and to settle the rights of the parties, and determine what amount of - money the respondent should receive from the appellant upon this dissolution.

The award left the whole question open, by providing that what was due from the firm to the' respondent on the 18th of April, 1891, should be paid to him without fixing any amount. This was attempted to be done by the supplemental award. But, as already suggested, no judgment having been entered upon the supplemental award, it is not necessary to consider it here, although it would seem that by the making of the first award the-office of the arbitrators ceased.

The award not having been final and definite upon the subject, matter submitted, the court was bound to set it aside as an imperfect and incomplete adjudication.

We think, therefore, for these reasons, that the motion to vacate the award should have been granted.

The order should be reversed, with ten dollars costs and disbursements, and the motion to vacate granted.

Barrett and Andrews, JJ., concur.


author: McAdam, J.

text:
    George W. Hutton et al., Resp’ts, v. Caroline M. S. Weber, App’lt.

      (New York Superior Court, General Term,

      Filed January 11, 1892.)

    Vendor and purchaser—Deed—Defective acknowledgmet.
    The record of a deed in the chain of title did not contain in the acknowledgment thereof the usual statement that the persons executing it,. were known to the notary, but the deed was witnessed by the notary. In an action for specific performance of a contract of sale, it was shown that the original deed was lost, and the notary testified that he knew the parties who signed it, and that he saw them execute it. Held, that the defect was not such as rendered the land unmarketable, and that the possibility that the defect might lead to controversy was so remote that the purchaser should be required to complete.
    Appeal by defendant from a judgment of the special term,, requiring said defendant to specifically perform a contract for the purchase of certain real estate, to accept the deed and pay $21,400,, the balance of the purchase money.

      Edward Grosse, for app’lt; Thomas Nelson, for resp’ts.
   McAdam, J.

The sole objection to the title arises upon the deed from William Wolf and wife to August Kenow, executed by the grantors September 1, 1870. The deed is correct in every respect, excepting that in the record thereof the words in the acknowledgment “to me known” to be the individuals described in and who executed the instrument, are omitted. The loss of the original deed was proved, and the notary testified that he knew the grantors personally, that he saw them execute the deed, knew them to be the persons described therein, and that they properly executed and acknowledged the same. The deed was witnessed by the notary, and was effectual to pass title without being acknowledged. 1 Edm. R. S., 689, § 137; Wood v. Chapin, 13 N. Y., 522. Such a deed is good between the parties to it, and only subsequent purchasers or incumbrancers for value and without notice can take objection to it. There are no such persons to make objection here, and the deed effectually conveyed every interest the grantor had in the property. It follows, therefore, that the title tendered was good and the defendant properly ordered to take. The deed was executed and delivered more than twenty years ago, and the grantee and those claiming under him have been in undisputed possession of the property ever since. That the defect alleged may lead to controversy is such a very remote and improbable contingency, and is such a slender possibility only, that it is a proper case for the application of the principle upon which the court declined to relieve the purchaser. Cambrelleng v. Purton, 125 N. Y., 616; 36 St. Rep., 190.

In Moser, Ex'r, v. Cochrane, 107 N. Y., 41; 11 St. Rep., 200, citing Schermerhorn v. Niblo, 2 Bosw., 161, the court of appeals said: “As the law does not regard trifles the bare possibility that the title may be affected by the existing causes which may subsequently be developed, when the highest evidence of which the nature of the case admits, amounting to a moral certainty, is given that no such cause exists, will not be regarded as sufficient ground for declining to compel a purchaser to perform his contract.”

In Hellreigel v. Manning, 97 N. Y., 56, it was held that nothing but a reasonable doubt will excuse the vendee from taking title, and that defects in the record title may be cured or removed by paroi evidence, and the same case also holds that there is no inflexible rule that a vendor must furnish a perfect record or proper title. The defect is not such as renders the land unmarketable, and the court was right in directing a specific performance of the contract.

Judgment affirmed, with costs.

Gildersleeve, J., concurs.


author: Per Curiam.

text:
    Allah C. Dalzell, App’lt, v. The Fahy’s Watch Case Company, Resp’t.

      (New York Superior Court, General Term,

      Filed January 11, 1892.)

    1. Pleading—Conditions precedent.
    A general allegation of the performance of conditions precedent will not he deemed to embrace matter as to which the plaintiff has specifically pleaded.
    2. Same.
    In an action to enforce performance of the consideration for an agreement by which plaintiff was to assign to defendant all his right, title and interest in all inventions and letters patent on request, the complaint alleged that plaintiff “ did duly assign unto defendant or to its use and at its-. request the letters patent aforésaid.” Held, insufficient in not alleging an assignment of the inventions also, and in stating the fact as to the assignment in the alternative.
    Appeal from interlocutory judgment sustaining demurrer to-the complaint The following is the opinion at special term:
    Sedgwick, Ch. J.—The demurrer should be sustained on the following grounds: The complaint does not show the performance of the agreement on the plaintiff’s part which was to be the consideration of the obligations of defendants on which the action was brought. It is as follows: “ The said Allan 0. Dalzell hereby agrees to assign, etc., all the right, title and interest in all inventions and letters patent, etc., in consideration of which the said Fahy’s Watch Case Company hereby agrees, etc., etc.” There is-no allegation of any assignment of inventions.
    The condition of the obligation to assign was to be a request in writing to Dalzell so to assign said letters patent. "Upon such request being made as to letters patent-, Dalzell was to assign inventions as well as patents. The complaint does not sufficiently allege that the letters patent and inventions which the plaintiff had procured or made at the time of the alleged assignment were assigned. The averment of being the “ same letters patent mentioned in the contract” may be descriptive of the letters patent said to have been assigned, but does not express or imply that such letters were all that the plaintiff had procured at the time of the supposed assignment
    The averments as to assignments by plaintiff are not sufficient. They are that “On, etc., plaintiff did duly assign, etc., unto defendant or for its use and at its request the letters patent aforesaid.” The legal effect of a written instrument or of a verbal transfer may be sufficient without setting forth the words of the assignment or transfer. On the face of the complaint such legal effects are not averred, but it is stated to be to the defendant, or if not to it, then to its use. The branches of the alternative are not identical. Assuming' that the transfer was to the use of defendant even if requested, that is not by the contract set forth the assignment that was to be made.
    The statement that “ it was under and by virtue of said annexed' contract” is contradicted by the face of that contract, unless facts are supposed, which are not set forth, which would make a transfer to use a compliance with the terms of the contract. Otherwise there would be an expression of opinion by the complaint as to-the transfer for the use being made under and by virtue of the contract
    The general allegation of the performance of conditions precedent are not to be deemed to embrace matters as to which the plaintiff has specifically pleaded, even if the payment of consideration and the transfer are conditions precedent within the meaning of § 533 of the Code.
    Judgment for defendant that demurrer be sustained, with leave to amend on payment of costs of demurrer.

      Wilber & Oldham, for app’lt; Wetmore & Jenner, for resp’t.
   Per Curiam.

The judgment should be affirmed, with costs,upon the opinion rendered by the learned chief judge at special term, with leave, however, to the plaintiff to amend upon payment of costs.

Freedman, Mo Ad am and Gtldersleeve, JJ., concur.


text:
    Prosper Monnet et al., App’lts, v. Henry Merz, Survivor, Resp't.

      (New York Superior Court, General Term,

      Filed January 11, 1892.)

    Appeal—Waiver.
    A party by receiving the amount of a judgment recovered by him does not waive his right to appeal for the purpose of modifying the judgment so as to increase his recovery to equal the demand.
    Motion to dismiss appeal.
    The action was brought by plaintiffs as manufacturers in Switzerland against the defendants, their commission agents in this city, to recover $18,958.40. The defendants set up various defenses and counterclaims. The action was referred, and the referee awarded the plaintiffs $10,130.45, with interest, aggregating $12,276.29. In arriving at the sum due the referee disallowed portions of the plaintiffs’ demand and. modified some of their charges. The plaintiffs entered judgment on the report February 27, 1888. The defendants appealed to the general term, where after argument the judgment was affirmed and the plaintiffs entered the judgment of affirmance July 2, 1889. The defendants then appealed to the court of appeals, which court on June 2, 1891, made an order allowing a small deduction from the judgment, but substantially affirming it, and on June 18, 1891, the judgment as modified, with all costs and interest, was fully paid. On June 8, 1891, the plaintiffs appealed from the judgment for the purpose of reviewing the action of the referee in reducing the plaintiffs’ demand from $18,958.40 to $10,276.29.
    The defendants moved to dismiss the appeal.

      A. P. & W. Man, for motion; Arnoux, Bitch & Woodford, opposed.
   McAdam, J.

As a rule, there can be but one judgment in an action. Johnson v. Farrell, 10 Abb. Pr., 384; Canfield v. Gaylord, 12 Wend., 236; Webb v. Bulger, 4 Hill, 588. The referee having reduced the plaintiffs' demand from $18,958.40 to $12,276.29, either party aggrieved had the right to appeal, Code, § 1294, the defendants because they thought the sum awarded excessive, and the plaintiffs because they thought it inadequate. To appeal, it was necessary that judgment be entered, and this preliminary step was taken by the plaintiffs. The defendants appealed to the general term, and then to the court of appeals, and the judgment against them in a modified form was affirmed. The judgment was paid by the defendants, but in any event they were obliged to pay the money, and its acceptance stopped the running of interest, but did not disable the plaintiffs from appealing from so much of the judgment directed by the referee as reduced their demand. Dyett v. Pendleton, 8 Cow., 325; Clowes v. Dickenson, id., 331; Higbie v. Westlake, 14 N. Y., 281; McNamara v. Canada S. Co., 16 W. Dig., 86; Benkard v. Babcock, 2 Robt., 175; S. C., 17 Abb. Pr., 421; Barker v. White, 58 N. Y., 204; Hayes v. Nourse, 107 id., 578; 12 St Rep., 476; In reWaier Com’rs, 36 Hun, 534. If a party seeks to set aside a judgment in toto after he has collected the amount by execution, the collection of the judgment is a waiver of the appeal, Knapp v. Brown, 45 N. Y., 209, for the reason that “ the right to proceed on the judgment and enjoy its fruits and the right of appeal are not concurrent; on the contrary, wholly inconsistent An election to take one of these courses is, therefore, a renunciation of the other.” Bennett v. Van Syckel, 18 N. Y., 484. But, if he prosecuted his appeal merely for the purpose of modifying the judgment so as to increase the amount of his recovery to equal the demand, it is not a waiver. Knapp v. Brown, supra; Genet v. Davenport, 60 N. Y., 194 Some judgments may be so connected and dependent upon one another that if cross appeals are taken they must be pursued pari passu, that there may be one record, one adjudication and one satisfaction, to-avoid double hearings and the splitting of appeals which, like the splitting of causes of action, is not approved. But the judgment directed by the referee in this instance is not so connected or dependent, as it is founded on separate and distinct items. It was neither claimed nor proved that the plaintiffs’ time to appeal had expired, and we assume therefore that it has not This being so, we cannot deprive them of a right which the statute expressly confers. For these reasons, the motion to dismiss the appeal must be-denied, with ten dollars costs.

Freedman, P. J., and Gildersleeve, J., concur.