text:
    Adam S Matheson et al., as Receivers, etc., Resp’t, v. Clifton Wharton, Jr., as Assignee, etc., et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

    Contract—Consideration.
    Where an agreement between the maker and payee of a note that the payee would procure renewals for a certain period, is the inducement on the maker’s part for assigning accounts to him, to secure the payment of such note, and not a mere incident to the extension of time, the failure of the payee to procure renewals according to the agreement bars his right to have applied to the note any part of the assigned accounts.
    Appeal from a judgment, entered in favor of plaintiffs.

      Alfred JaretzJci, for app’lt Wharton ; James McKeen, for app’lt National Tube Works Co.; Edward J. Nathan, for resp’ts.
   Parker, J.

Prior to June 30, 1893, Jacob Jamer delivered to the National Tube Works Company, for value, several promissory notes, aggregating $10,820.06, and to the American Tube & Iron Company notes aggregating $23,870.85. All of these notes had been discounted, and were outstanding in the hand of third parties, on the date above mentioned. Jamer, finding that it would be inconvenient, if not impossible, for him to meet the notes at maturity, so stated to the National Tube Works Company and the American Tube & Iron Company, and proposed an ex tension of time, by which twenty-five per cent, of the indebtedness-represented by the notes should be paid in six months, twenty-rive per cent, in nine months, twenty-five per cent, in twelve months, and the balance in fifteen months; and to secure such payment he proposed an assignment of accounts which he held against certain parties. The proposition was accepted, and a tripartite agreement was entered into, in which Jamer was designated as the party of the first part, the National Tube Works Company party of the second part, and the American Tube & Iron Company party of the third part. It fixed the time of payment as he had proposed, and stated the method by which the extension was to be accomplished, which should be a renewal of the notes outstanding by the parties of the second and third parts so as to conform with such extension. On the part of Jamer, it was agreed to pay the amount of the notes in four installments, at the several periods agreed upon, and to secure such payment Jamer assigned by the agreement certain accounts. The right to anticipate the payment of any of the installments was reserved to Jamer, the parties of the second and third parts agreeing that, upon the payment of any installment, they would reassign to him a proportionate amount of the accounts assigned under the agreement, and that, upon payment of all of the installments, they would reassign all of the accounts. The party of the second part the National Tube Works Company, made performance of its part of the contract, and is entitled to all the benefits secured to it by the- agreement. The American Tube & Iron Company passed into the hands of a receiver on the 27th-day of July, 1893, and among the notes maturing immediateljq which it had agreed to renew, was one for $3,500 which became due July 28th, another for $1,739.80 which matured July 29th, and another for $829.50 which matured July 30th. These notes were not renewed, as by the agreement it was provided that they should be, although Jamer and his counsel urged upon the receivers the importance of their renewal. Instead, they were protested,' and Jamer on the 31st day of July, three days after the first note was protested, was compelléd to make a general assignment for the benefit of his creditors. While the agreement conferred upon the parties of the second and third parts the right to collect the accounts transferred by it, they did not, in fact, do so, but permitted Jamer to collect them, and after his assignment his assignee went on with their collection, the result being that, at the time of the commencement of this suit, there was in the hands of Jamer’s assignee the sum of $12,380.57, which had been collected from the assigned accounts. The plaintiff demanded from the assignee such a proportion of this sum as the amount of notes upon which it was the indorser bore to the amount of the notes upon which the National Tube Works Company was the indorser. If it had made performance of its contract, as did the party of the second part, Jamer’s assignee would have been without excuse in failing to comply with its demand. As it had not, he insisted that plaintiff was not entitled to any portion of the assigned accounts. Thereupon this suit was brought, upon the equity side of the court, to compel the assignee to pay over to the plaintiff that part of the proceeds claimed by it.

The learned referee decided that the plaintiff did not comply with all the provisions of the contract, in that he failed to renew the notes, to which we have referred, as they matured, but held that such omission did not annul the provisions of the contract assigning the accounts, or divest the American Tube & Iron Company of its interest in such accounts. This presents the only question which we shall consider, as we approve of the views of the referee in all other respects. The ground upon which he based his decision, that the failure of performance on the part of plaintiff did not have the effect to deprive it of the right to its full share of the proceeds of the assigned accounts, was that the contract, when assigned, was completely executed on Jamer’s part, and partly executed and partly to be executed on the part of the plaintiff and the other party to the contract. That the contract was one of mutual promises, each promise being the consideration for the other, and, therefore, the promise, not the performance of it, constituted the consideration. In support of his position he cited Philpot v. Gruninger, 14 Wall. 570, and Boone v. Eyre, 1 H. Bl. 273.

It may be said, if he is right in his interpretation of the contract, then the cases cited furnish support for the legal conclusion reached. But the facts of those cases, as we read them, do not furnish any assistance in determinining whether this contract should be treated as executory, or as one' executed by one party and partly executed and partly to be executed by the other parties, at the moment of its execution. A remark of Foote, J. in Grant v. Johnson, 5 N. Y. 247, seems to apply with such force to these, as well as to other cases to which our attention has been called, that we quote it:

“ So many decisions have been made on the vexed question of what are, and what are not, dependent covenants, and so many of them are irreconcilable, that they rather perl ex than aid the judgment in determinining a given case.”

The opinion in Boone v. Eyre, was written by Lord Manseield, and Pollock, in his work on Contracts, says:

“ From Lord Mansfield’s time to the present, attempts have been made to lay down rules for determining, in the absence of expressed provisions or other clear indications of intent, the relation of one party’s obligation to the other, as regards the order of performance of mutual promises, and to the extent to which either is bound to accept performance of part, notwithstanding failure to perform other parts. In the earlier decisions, the court inclined to treat the several terms of a contract as separate and independent promises, paying little regard to the effect which default in some or one of them might produce in defeating the purpose of the contract as a whole. At this day, the tendency is the other way. The court looks to the purpose aud effect of the contract as a whole, as a guide to the probable intention of the parties, _and the presumption, if any there be, is that breach or default in any material term of a contract between men of business amounts to default in the whole.”

And again, at page 249, that author says:

“ But, when there is a contract made by mutual promises, we may have to inquire whether, in addition to each promise or set of promises being the consideration for the other, the performance thereof on the one side is not a condition, precedent or concurrent, of the right to claim performance of the other. There is no logical reason why it should not be so, or why express words should be required to manifest an intention that it should. Bach party’s promise is the consideration for the promise of the other, not for the performance which is due by reason of the promise. What are the terms and conditions of the duty created bv the promise is another matter.”

In considering the tests which may be applied, he says at page 251: _

_ “ Gan it be said that the promisee gets what he bargained for with somQ shortcoming for which damages will compensate him. Or is the point of failure so vital that his expectation is in substance defeated. ”

The logical and necessary result of the position taken by the referee is that if the plaintiff had failed to renew any of the notes described in the contract, yet it can recover, because, as he asserts, the contract was executed by one party, and partly executed by the others the moment it was signed. But in such case, clearly, Jainer’s expectations would have been defeated, not only in substance, but entirely. What he was aiming at, as appears from every feature of the contract, was to procure an extension of time within which to pay thirty odd thousand dollars, which the notes ■outstanding represented. To accomplish that result, he was willing to assign certain accounts which he held against other parties. There is no hint of any other intention in this contract. It was not provided that the avails of these accounts should be applied in payment of these notes outstanding. There was no authority to make any application whatever, until six months thereafter, when the first installment should become due, and then it was to be devoted to the payment of one-fourth of his obligations, which would then be represented by renewal notes. Jamer was attempting to protect his credit through a period of great financial depression, and that could only be accomplished by securing his notes from protest, and therefore the parties of the second and third parts were required to renew the notes as they should mature. This they promised to do, in order to secure the collateral which be offered them as an inducement It is true that the word collateral was not used, but that it was intended as collateral security for the faithful performance of his promises to pay the sum which his notes represented in four equal installments in six, nine, twelve, and fifteen months, is apparent. The clause following the promise to pay begins with the words:

“ To secure the prompt and punctual payment of said sums of money, and each installment thereof, at the time above provided, the party of the first part does hereby assign.”

And in the sixth clause :

“ It is further provided that, as each installment of the indebtedness hereinabove recited is paid off, the parties of the second and third parts will reassign to the party of the first part a proportionate amount of the accounts assigned to and held up by them under this agreement, and that upon payment of all of the installments hereinabove provided for, and of any and all interest and charges that may have accrued thereon, they will reassign all of the accounts enumerated in said schedule A, or such others as may have been submitted therefor to the party of the first part.”

The conduct of the parties was in harmony with the apparent language of the contract. The parties of the second and third parts did not undertake the collection of the accounts. Jamer ■collected such as were collected, and the proceeds resulting from his efforts in that direction occasions this suit.

If the legal interpretation put upon this contract by the referee be sound, then it necessarily follows that, immediately upon its being signed, if the parties of the second and third parts had neglected or refused to renew any of the notes referred to in it, and had permitted them to mature and be protested against Jamer while in the band of third parties, nevertheless, the parties of the second aud third parts would have been entitled to the collateral to protect them as against their liability as indorsers on the notes. Such, certainly, was not the intention of the - parties, and the contract does not so indicate, from whatever point of view it may be examined.

The promise to renew the notes from time to time, so that Jamer should not be called upon to pay any of them under six months, and others for periods as far away as fifteen months, was not merely incidental and collateral. It was the main inducement on Jamer’s part for providing the collateral. The object was to secure himself against the threatening impairment of his credit. He apprehended financial ruin in the event his paper should be dishonored, and thirty days later, when, through plaintiff’s failure to perform its contract, his paper went to protest, his apprehensions were proved to be well founded.

Respondent’s argument is that Jamer covenanted to pay his just debts, and, as security, he assigned certain accounts to his two creditors, in consideration whereof they extended the time of payment, and agreed to renew certain notes as the same matured. Thus the contract and consideration was wholly executed, except as to the renewal of the notes, which could only be done in the future, and was a mere incident to the extension. But this position does not correctly present the facts. The parties of the second and third parts were not then his creditors. All of the notes were then in the hands of third parties. As they bore the indorsement of the second and third parties, they were threatened witli liability thereon should Jamer fail to pay. To protect themselves, they consented to assume the burden of renewing the notes and thus extending the time of payment for the time specified in the contract. The contract contains a phrase that the parties of the second and third parts agree to extend and do hereby extend ” the time of payment of the said indebtedness, but that phrase did not effect an extension, as there was no indebtedness due to them. Instead, it was due to third parties who held the notes. While these words were in praesenii, they should be construed in the future tense. Otherwise, they are meaningless, for there was nothing for them to operate on. Without a renewal of the notes there could be no extension of time, and therefore the contention that the paragraph relating to the extension constituted the consideration for the contract, and the renewals were a mere incident to it, is absurd. The plan of the contract was to procure such renewals of these notes as that one-fourth should be paid at each period of six, nine, twelve and fifteen months. In giving expression to the agreement of the parties in this respect, the following language was used-:

“ The parties of the second and third parts agree to extend, and do hereby extend, the time of the payment of said indebtedness so that one-fourth of the entire amount due each of the parties of the second and third parts shall be due and payable in six months from date, another one-fourth part in nine months from date, another one-fourth part in twelve months from date, and the remainder in fifteen months from date. And said parties of the second and third parts agree to renew the notes heretofore given by the party of the first part as the same mature, so as to conform with such extension.”

The use of the words, “ do hereby extend,” furnishes the basis for the argument made by the respondent, that by the agreement the parties of the second and third parts extended,—not promised to extend, but actually did extend,—the time of payment. But, as we have already seen, they did not extend the time for «payment, for their was no indebtedness due them. The notes were not in their possession or under their control, and by that agreement they could not affect Jamer’s liability thereon, to the parties who held them. Their promises to renew the notes, contained in the latter part of the clause, develops the plan by which they untook to insure Jamer against the notes becoming dishonored within the period which they had promised he should have to pay the amounts secured by them.

Having in mind the situation of the parties, the object which they intended to accomplish, and the general scheme of the contract, the only reasonable construction which can be given to the -opening paragraph of the provision which we have quoted is that by it the parties of the second and third parts agreed to extend the time of payment for the periods therein named, the promise to be effectuated by renewal of the several notes as they should mature so as to conform with such extension. Such a construction leaves no basis whatever for the claim that the renewal of the notes was a mere incident to the extension. If we are right in the views expressed, it follows that the plaintiff, having failed to perform its contract in a substantial and important respect, cannot recover.

The judgment should be reversed, and a new trial ordered, with costs to the appellants.

All concur.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    Hiram Hitchcock, as Executor, etc., App’lt and Resp’t, v. Fanny M. Peaslee et al., App’lts and Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

    1. Will—Construction.
    Where a testator makes a devise to his daughter in trust, which is to revert at her death, if without issne, equally to his wife and son, the daughter takes by such devise a vested estate in fee, subject to being divested upon a certain contingency, and the mother and son take contingent remainders.
    3. Limitation—When set running.
    The non-interference of the cestui que trust before his interest comes into possession does not constitute an assent to a breach of trust, nor does his knowledge and inaction set the statute of limitations to running.
    ■ Appeal from an order, confirming the report of the referee.

      William H. Arnoux, for deft Fanny M. Peaslee; RobertH. Mc-Grath, Jr., for def’t Edward H. Peaslee.
   O’Brien, J.

Edmund E. Peaslee, the father of Edward H. and Frances M. Peaslee, died in January, 1878, and the present litigation arises out of a provision of his will made for the testator’s daughter, as follows:

“ I give to my daughter, Fanny M. Peaslee, twenty thousand dollars in money, or its equivalent in stocks, as my executor may decide, and twenty thousand dollars in trust, the same to revert, at her death, if without issue, equally to my wife and son.”

An action was brought for the purpose of ascertaining the executor’s duty relative to this fund, and it was therein adjudged that the executor should pay over $20,000 to the daughter, arid she was directed safely and securely to invest and hold the same for those entitled to the principal sum at her death. This judgment did not require her to give security, nor was any given. In 1879 or 1880 she invested this money in stocks and bonds, so that prior to the summer of 1880 the entire amount was lost. Shortly thereafter she informed her mother and brother of the loss, but no action was taken by either of them until 1892, when this proceeding was begun to compel a restitution or security for the fund. The referee reported that the fund was entirely lost; that Edward H. Peaslee individually was entitled to security for one-half of the fund, to wit, $10,000; and that the executors of Mrs. Peaslee,» who in the meantime had died, were not entitled to security for the other half, because upon her death the one-half to which she might have been entitled had she survived became the absolute property of her daughter, and because in her lifetime she had released her interest to her daughter. The referee’s report was confirmed, and an order entered, which, not conforming to the decision of the judge at special term, a motion for a resettled order was made and granted, and it is from this resettled order that the present appeal is had. Edward H. Peaslee appeals from so much of the order as holds, in effect, that any interest which he may have in the fund in question is contingent upon his surviving his sister. Fanny M. Peaslee appeals from so much of the order as holds that Edward has any interest whatsoever in the fund, and that she should give any security whatsoever.

The referee’s conclusion, which was assented to by the special term, was that, as the reversion was “ equally to my wife and my son," without the addition of the words of survivorship,—•“ legal representatives," or other like words,—the interest which would have belonged to Mrs. Peaslee, had she survived, became, upon her death, the absolute property of the daughter, freed from the trust. This construction, it is claimed, was erroneous, it being insisted that the provision in the will in question created a vested interest in the son Edward, which on the death of his sister without issue, would be payable to him, or, if he died during the lifetime of the sister, the same would go, should she die without issue, to his legal representatives; and that, even though the interest of Edward would be defeated by his death in the lifetime of his sister, this defeated interest would not pass to her, but would form part of the residuary estate of the testator. On the other hand, it is claimed that the true legal effect of the bequest was to create a vested estate in the daughter, subject to being divested in favor of her brother, should he survive her, and should she die without issue. The latter was the view taken by the referee and by the learned judge at special term, and, for reasons that may be briefly stated, we think should be sustained.

It is true that the testator, in connection with this bequest, used the word “trust,” but when we come to read the entire clause it will be found that the essential elements of a legal trust, viz. an expressly-'designated cestui, and express purpose, object, and terms of trust are all wanting. Eliminating this idea of a-legal trust, or that the daughter was a trustee, strictly speaking, we are by easy steps led to the conclusion, either that a vested interest was created in the daughter, subject to being divested in favor of her mother and brother by the happening of the contingency of her death without issue, or that a vested interest in the wife and son was created subject only to the life interest of the daughter in the contingency of issue surviving her. Upon which of these constructions is right this controversy hinges. The language used makes the interest of the wife and son expressly contingent upon the daughter’s dying without issue, and it is only in this latter event that it is to revert to them equally. It is not provided that upon the death of either the wife or son their interest should go to their legal representatives; and if we can reach (he conclusion that it was the testator’s intention effectually to dispose by this provision of the $20,000, and not to have it become part of the residuary estate, we must construe his language with a view of effectuating such intention. We think, from the language used, that the fair intent was effectually to dispose of this fund, and that the daughter was to have a vested interest therein, which should survive her, and go to her issue, if any; and upon her death without issue that it should go to the wife and son of the testator, if living; and that, in the event of either of them dying, the one-half in which the one so dying had a contingent interest should become the absolute property of the daughter. There is nothing in this view which contravenes the Revised Statutes defining estates, for while it is therein provided that an estate is vested where there is some person in being who would have an immediate right to possession upon the ceasing of the precedent estate,—which in one view might look as though the estate of Edward was vested,—this provision is to be taken in connection with one immediately followng, which defines what are meant by contingent estates, and it is therein provided that “they are contingent whilst the person to whom, or the event upon which they are limited to take effect remains uncertain.” Rev. St. (8th ed.) 2432, § 13. Until the death of the daughter without issue it cannot be determined whether the others will come into possession of the estate or not, and so long as that contingency, exists, the interest is in expectancy, which may or may not ripen into fruition. Without referring to or analyzing the various authorities presented by the respective counsel, and repeating what has been so often said, that in the construction of wills, cases directly controlling are difficult to find, because in each instance the language under construction is different, and therefore the value of the case as an authority is wanting, it will suffice to say that upon an examination of the cases we find nothing inconsistent with the view taken by the referee, and at which we have arrived; that the language used by the testator means that by the devise in question the daughter took a vested estate in fee, subject to being divested upon a certain contingency, and that Edward and the mother took contingent remainders.

The argument made that this contingent interest of Edward was barred by the statute of limitations or by estoppel is without force. It is true that twelve years before bringing this proceeding he was aware that she had lost the fund, and that with such knowledge he remained passive during that period, justifying his conduct by the statement that the sister was irresponsible, and that any proceeding against her would result in no benefit. Were this a case of a cause of action arising in favor of Edward which accrued at a certain time, and which he had neglected to prosecute, then undoubtedly the statute would run. Here, however, the sister had the possession and custody of the fund, and this she had a right to have until the contingency happened which would transfer it, and make it the property of another. As already shown, had both mother and brother died, she would have been absolutely entitled to the whole fund; and the referee was right in his conclusion that the non-interference of the cestui que trust before his interest comes into possession does not constitute an assent to the breach of the trust, nor does his knowledge and inaction set the statute of limitations running. The daughter was directed by the judgment which gave her possession of the property to keep it safely until the final determination of the persons to whom it should go, and this obligation resting upon her was continuous, and would remain until that time arrived. The right to insist that she should at all times have the fund did not, strictly speaking, constitute a cause of action in favor of those who might eventually become entitled to such fund, which must be brought as soon as knowledge that the fund was dissipated was brought home to them, because all the rights of the parties, and the duties devolving upon the daughter, were fixed by the judgment under which she obtained possession ; and being, therefore, obliged to have the fund, it was proper at any period, until the contingency happened when it should go to others, for such others as might be interested, upon obtaining knowledge that the fund had been dissipated, to apply to the court with a view of compelling the daughter to comply with the terms of the judgment in respect to safely keeping the fund.

Without discussing the subsidiary questions we think that the order appealed from was right, and should be affirmed.

Parker, J., concurs; Van Brunt, P. J., concurs in result.


text:
    Francis R. Upton, Resp’t, v. Electric Construction and Supply Company, App’lt. Michael O’Leary, Resp’t, v. Same, App’lt. William O. Gantz, Resp’t, v. Same, App’lt. Edgar W. Youmans, Resp’t, v. Same, App’lt. Charles Klause, Resp’t, v. Same, App’lt. Fort Wayne Electric Corporation, Resp’t, v. Same, App‘lt. Charles Wendt, Resp’t, v. Same, App’lt. William J. Hammer et al., as Assignee, etc., Resp’t, v. Same, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

    1. Attachment—Sheriff’s Fees.
    A defendant, whose property has been illegally attached, and who has succeeded in having the same vacated, cannot be compelled to pay the sheriff’s fees for wrongfully seizing upon his property.
    2. Same—Motion foe, premature.
    A motion by the sheriff to have his fees and disbursements in an attach ment action adjus'ed and allowed is premature, where the attached prop erty has been turned over to the receiver of the attachment-debtor and the receiver ordered to hold the proceeds subject to attachment and claim of sheriff’s fees.
    3. Same.
    Chap. 418 of 1892 does not give the sheriff a lien upon the attached goods where the attachment is vacated. •
    Appeal from an order, adjusting sheriff’s fees in • attachment proceedings against defendant.

      Henry B. Gayley, for app’lt; William F. Goldbeck, for resp’t Upton ; 'Charles F. Wells, for resp’t sheriff. «
   O’Brien, J.

On February 14, 15, and 16, 1895, warrants of attachment were granted agai nst the property of the defendant company, and issued to the sheriff, under which the latter claims to have levied upon its property. On February 15th receivers of the property of the company were appointed, both in the slate of New Jersey add in this state, and on the 16th qualified by giving their bonds. In April, the receivers moved for an order directing the sheriff to turn over the attached property to them, which was granted; the order directing that the receivers should sell the property, providing, however, that the proceeds of such sale should be subject to the lien of the attachments and of the sheriff. Subsequently, two of these, attachments were vacated, and thereafter, and on July 1st, the sheriff made a motion to have its fees and disbursements adjusted and allowed by the court. The receivers opposed the motion on the ground that, never having made a valid levy, and never having made a levy of any kind until after the appointment of the receivers, the sheriff was not entitled to any fees or disbursements, and on the further ground that, though levies were made, the amount claimed by the sheriff was excessive.

With respect to the plaintiff’s action in which the first attachment was issued, and under which the levy was claimed to have been made, no motion to vacate or set aside such attachment was made, although an answer was served, and the action is now pending. Just what was done by the sheriff, upon receiving the first attachments on the 14th of February, towards making a levy, is placed in doubt by the affidavits presented on the part of the receivers, tending to negative the claim advanced that the sheriff on that day took possession of or made any levy upon the property of the defendant The questions now presented on conflict-, ing affidavits, as to the validity of the attachments, and of the levies made thereunder, and as to the validity of the claims upon which the attachments were based, were raised upon the motion by the receivers to compel the sheriff to turn over the property to them; and on the granting of such motion it was directed that the proceeds should be held until a determination of such questions. This being the disposition made by the court on which an order was entered, and no appeal taken, we think that the present application made by the sheriff, to tax his fees and expenses upon the attachments in these various actions, was°premature. The effect of now considering such questions would be to determine upon a collateral motion the validity of the attachments and the levies thereunder. This collateral attack is made upon a motion to which the attaching creditors were not originally parties, and was made by the sheriff alone, upon notice to the receivers, although, on knowledge being brought to such creditors that such motion was pending, they intervened, and have been heard upon the questions involved.

The only j urisdiction for the motion at this time is to be found in the position taken by the sheriff that, irrespective of the justice of the claims which are the basis of the attachments, or the validity of the attachments themselves, and irrespective of whether they are vacated or allowed to stand, the sheriff is entitled to his fees and disbursements. Part of this contention is based upon chapter 418 of the Laws of 1892, which, among other things, provides that, “where the warrant of attachment is vacated, set aside, or discharged by order of the court, the sheriff is entitled to poundage upon the value of the property attached * * * ‘andsuch additional compensation for his trouble and expenses in taking possession and in preserving the property as the judge issuing the warrant allows." We do not think it was the intention of the legislature to compel a defendant who succeeds in vacating an attachment to pay poundage to the sheriff upon the amount specified m the attachment; but justice would seemingly require that, where so vacated, the plaintiff at whose instance the attachment was issued should be liable for the sheriff’s fees. In other words, it was no doubt by this act intended to preserve the sheriff’s right to fees in cases where he had made a levy under an attachment, whether the same was subsequently vacated or not; but there is nothing in the express wording" of the act, nor is it susceptible of an interpretation so unjust as, to compel one whose property has been illegally attached, and who has succeeded in having the same vacated, to pay the sheriff’s fees for wrongfully seizing upon the property.

Among the attachments issued, two have been already vacated, and the validity of the others where, as here, they are brought in question, can only be determined when the same are confirmed by judgments. Having in mind the terms of the order under which the property was turned over to the receivers, subject to the liens of the various creditors, including the sheriff, it would hardly be claimed that any of the other creditors would have the right to move to compel the receivers to pay their respective claims until they had established the same by judgments. And, as the right of the sheriff to his fees necessarily must depend upon the validity of the process under which he acted, we fail to see how he is in any better position, or entitled to any superior rights as against the receivers, than the parties at whose instance he acted. When, in a proper proceeding, pursuant to the terms of the former order, it shall be determined just what liens were created, as against the property turned over by the sheriff to the receivers, then, and not till then, it can be determined what fees the sheriff should receive. This was practically the disposition made by the judge in the order turning over the property to the receivers, as will be seen, not only from the order, but from the statement we have made of its provisions.

Our conclusion, therefore, is that the court "should not have entertained the motion, but should have denied it, leaving the sheriff to wait, as all the other creditors are obliged to wait, until a determination is reached as to the validity of the respective liens which are claimed as against the fund, which, when adjusted, can include an adjustment, also, of the amount of fees to which the sheriff is entitled.

We think the order should be reversed, with $10 costs and disbursements, and the motion to tax the fees, because premature,, denied, without costs.

Ordered accordingly.

All concur.


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

text:
    The People, Resp’t, v. William H. Schooley, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

    1. Appeal—Verdict.
    The appellate court is not justified in interfering with the verdict, where the facts are reasonably capable of diverse or opposing inferences, unless the court is satisfied, from a review of the testimony, that injustice has been done.
    2. Evidence—Proof of other crimes.
    On the trial of an indictment for receiving stolen bonds, evidence as to the erasure of the names and numbers originally upon the bonds, is competent to show, not only the theft of the bonds, but their condition when they reached the receiver’s hands, or which they had assumed when discovered, though it tends to establish the commission of another crime by some one else.
    3. Appeal—Striking out evidence.
    The refusal of the court to strike out evidence, competent and proper when received, does not call for the reversal of the judgment; the court has the right to let it. when once in the case, stand for what it is worth, though disproved.
    4. Same.
    Where the motion to strike out relates to the execution of two papers, and it is proper to refuse it as to one, an exception to the denial of the motion is not available on appeal.
    Appeal from a judgment, convicting defendant of receiving stolen property.

      Robert J. Retire, for app’lt; John R. Fellows, Dist. A tty., for People.
   Parker, J.

In December, 1890, four bonds of the St. Louis k Iron Mountain Railroad Company, of the par value of $1,000 each, the property of Ellen M. Gray, were stolen from her possession in Washington, D. C. In August of the following year these bonds, falsified by the obliteration of certain indorsement thereon at the time of the larceny, and further falsified by the obliteration of the true numbers on the bonds and coupons attached, and the substitution of other numbers, were in the possession of the defendant, and disposed of by him under circumstances which, the people claimed, and the jury have found, established knowledge on his part that they had been stolen. One of the bonds the defendant sold to the firm of James Walsh & Son about August 10, 1891, for which he received the check of the firm for $1,035. One of the firm went with him to the bank upon which the check was drawn, where it was cashed, after which they returned to the office of Walsh & Son, and defendant handed back to the firm $135, taking with him $900, which he said was for a client of his by the name of Peterson, wrho owned the bond. Peterson was not produced upon the trial, nor was his absence satisfactorily accounted for. The history of the disposition of the other bonds, to White, Morris & Co., and the drawing out of the money after deposit, by defendant, personally, upon bis check, which he said was done for the purpose of turning the money over to his client Peterson, together with numerous other facts and circumstances, were shown, from which it was claimed, on behalf of the people, that an inference of fact should be drawn that the defendant had guilty knowledge that the party from whom he received the bonds had stolen them. The defendant sought to show that his possession of the bonds was innocent; that they had been placed in his hands for disposition by a client named Joel Peterson, who, it appears, was known as Edgar Richardson, and also as Abijah Richardson; and that, at the time they came into his possession for disposition, he had no knowledge, or reason to suppose, that Peterson had not come honestly by them.

It is a fact of no small significance that these bonds, which had at the time an established market value, at which they could be readilj disposed of, should have been placed in the hands of this defendant for sale at a price far below that of their value in the open market. It is not our purpose to discuss the evidence, for it is not contended that the trial court was in error in deciding that the evidence presented a question for the jury. Nor is this such a case as justifies the court in interfering with the verdict of the jury, which is the ultimate tribunal for the adjudication and determination of questions of fact; for that may not be done where the facts are reasonably capable of diverse or opposing inferences, unless the court is satisfied, from a review of the testimony, that injustice has probably been done. People v. Cignarale, 110 N. Y. 23; 16 St. Rep. 155. The result of our examination of the record does not lead to any such conclusion.

The appellant urges that error was committed by the trial court in permitting Robert Ogden Doremus, an expert in chemistry, to testify to the erasure of - the names- and numbers originally upon the bonds, and the substitution of other numbers, because the defendant was not charged with the crime of forgery. It was competent, clearly, to show, not only the theft of the bonds, which the -defendant was charged with having received with knowledge of the theft, but the condition of the bonds when they reached the receiver’s hands, or which they had assumed when discovered. And the evidence being competent, its conclusion was not called for, because it tended to establish the commission of another ■crime by some one else.

Nor do we think the court erred in admitting the opinions of experts in handwriting, to the effect that the signatures to the powers of attorney and receipts purporting to have been given to the defendant by Peterson were in the handwriting of the defendant. This testimony was introduced by the prosecution upon the theory that the defendant had falsified the powers of attorney. The foundation for the testimony was properly laid, and consisted ■of the handwriting of the defendant upon other papers and documents concededly his.

The powers of attorney purported to have been acknowledged before notaries public, who were subsequently produced by the defendant, and testified, in effect, that the defendant introduced a man to them as Peterson, whereupon the acknowledgments were taken, and they severally subscribed their names as notaries pub-lie. After the notaries had testified, the defendant moved to ■strike out the opinion of the experts, which motion the court denied. Appellant contends that this motion should have been granted, because, as he alleges, it then positively appeared that .some person other than the defendant executed the powers of attorney. If it should be assumed that the testimony of the notaries established that the defendant did not sign the powers of attorney, the refusal of the court to strike out the opinions of the experts would not call for a reversal of the judgment, for it was competent and proper evidence when received, and being in the case, the court had the right to let it stand for what it was worth, although disproved. But it is not accurate to say that the testimony of the experts was wholly disapproved by that of the notaries. One of the notaries, Mr. Frank Moss, testified that this defendant came to him with another man, whom he introduced as Joel Peterson, and requested him to witness the signature and take Peterson’s acknowledgment; that he had never seen the man called Peterson 'before, but did know the defendant, and on the faith or the introduction he witnessed the signature, and took the acknowledgment. His testimony, so far as it relates to the signing of the paper which he witnessed and acknowledged, is as follows :

“ Q. Is it your best recollection that that paper was not signed in your presence? A. I think it was not I think I asked this man if he desired me to witness his signature, which I understand to be the proper form, and I did so at the time. By the court: Q. You witnessed the signature, but you had not seen it signed? A. No, I wouldn’t say that I had. By a juror: Q. Mr. Moss, do you say that you seen this man Peterson sign that? A. No ; I didn’t say that. I am not sure of that.”

It is clear that Moss’ testimony did not establish either that the •alleged Peterson signed the power of attorney which he acknowledged, or that defendant did not, nor was there any other testimony oh that subject, except that of the defendant; and the jury were, therefore, at liberty to consider the testimony of the experts for what it was worth, The other notary Mr. Bitter, testified that the man whom defendant introduced to him as Peterson, did not sign the power of attorney in his presence; but, as the motion made related to the execution of both papers, and it was proper id refuse it as to one, the exception is not available.

The appellant also alleges that the trial court erred in permitting James F. Vallely, the officer to whom the werrant was given for the arrest of the defendant, to testify'in regard to the absence of the defendant from the jurisdiction of the court. It is true that he gave some testimony tending in that direction, but during his entire examination only one objection was made by the defendant, which was not sustained by the court. That objection was a general one, and was not interposed to a question which would naturally suggest to the mind of the court that the purpose of it was to show that the defendant was trying to avoid trial. That it was not so understood, by either the court or the counsel for the defendant, appears later on in the examination of the same witness, when the court inquired of the district attorney what his purpose was in the examination he was then making of the officer, and whether it was to show flight. To which the prosecuting officer replied, “Certainly.” Whereupon the examination ol' the witness was continued without objection. Later on some controversy arose over the introduction in evidence of the record of the forfeited bail bond, and the court of its own motion refused to receive it, and in order to rid the case of any such question said :

“ I will strike out the entire testimony of officer Yallely, and I will tell the jury to disregard it.”

The defendant did not object or except to this determination of the court, and wisely, because by it there was stricken from the record the testimony which he now claims was prejudicial to him, but which was admitted, as we have already observed, under such circumstances as would not entitle the defendant to a reversal of the judgment had the evidence been improper.

Under still another point, we are informed that the entire charge was excepted to, and the record verifies the statement. Such an exception, however, no more advantages the defendant, than if he had not taken the exception. Were the rule otherwise, the defendant would not be entitled to a reversal of the judgment, for the charge of the learned trial court correctly laid down the law of the case, and properly presented to the jury the questions of fact upon which they were to pass.

The judgment should be affirmed.

O’Brien, J., concurs.

Van Brunt, P. J.

I concur in the conclusion arrived at by Mr. Justice Parker ; but it does not seem to me that the flagrant violation of duty by the notaries who took the acknowledgment to the powers of attorney offered in evidence in this case should pass without notice. In fact they should be proceeded against criminally. Two powers of attorney were offered in evidence, claiming to have been executed on the 14th and the 20th of August, respectively, in which each notary certified that the person purporting to execute the power of attorney was personally known to such notary ; and the evidence, as given by the notaries, shows that they had never seen such person prior to the time of the alleged acknowledgment, and that the only evidence of identity was an introduction by the prisoner, who, to at least one of the notaries, was not even personally known. It would appear from the record that it had been the habit of at least one of these notaries to certify to personal knowledge of the identity of a person executing a paper from an introduction at the time of execution. Such a practice is a clear violation of the provisions of the statute, and renders the notary liable to prosecution. By 1 Rev. St. p. 758, § 9, it is provided that no acknowledgment of any conveyance having been executed shall be taken by any officer, unless the officer taking the same shall know or have satisfactory evidence that the person making such acknowledgment is the individual described in and who executed such conveyance. It is evident that the satisfactory evidence referred to in this section means legal evidence, namely, the testimony of witnesses sworn to the fact. Section 15 prescribes that every officer who shall take the acknowledgment or proof of any conveyance shall indorse a certificate thereof, signed by himself, on the conveyance, and in such certificate shall set forth the matters hereinbefore required to be done, known, or proved, on such acknowledgment or proof, together with the names of the witnesses examined before such officer, and their places of residence, and the substance of the evidence by them given. Thus it appears that the certificate, which the officer taking the acknowledgment must give, must not only state the fact of the acknowledgment, but, if the person was not personally known, that lie took evidence in regard to his identity, and he must state the names of the witnesses and the substance of the evidence given, and certify that that was satisfactory proof to him. i

But it may be said that there is no requirement that witnesses shall be examined in order to prove identity,—that all that the ■statute requires is that the officer shall have satisfactory evidence, and that that may not mean sworn evidence. It may be entirely safe to leave the decision of this question upon the statute itself. In a statute, evidence means legal evidence ; and there is no proof by paroi which is legal evidence, unless sworn to by witnesses. If there were any doubt upon this proposition, it would be sufficient to refer to the decisions under section 12 of the same statute, which provides that the proof of the execution of any conveyance shall be made by a subscribing witness thereto, who shall state his own place of residence, and that he knew the person described in and who executed such conveyance, and such proof shall not be taken unless the officer is personally acquainted with such subscribing witness, or has satisfactory evidence that he is the same person who was a subscribing witness to such instrument. In the case of Tuttle v. People, 86 N. Y. 485, it is expressly held that the statute requires an oath of the truth of the facts essential to satisfy the officer taking the proof, and to justify a record of an instrument. The case cited was one where a party swore thas he was present at the execution of the paper, when such was not, in fact, the case; and upon indictment he was convicted of perjury. In the case of Miller v. Link, 2 N. Y. 86, the same rule is laid down. It is said that the acknowledgment of a deed must show that the party acknowledged the instrument was known or proved to the officer to be the party named in and who had executed the same. The rule in regard to a subscribing witness is also recognized in the case of Jackson v. Vickory, 1 Wend. 412. And in the case of Dibble v. Rogers, 13 Wend. 542, the necessity of incorporating in the certificate of the officer, where the identity of the person executing the instrument is proven, the evidence taken by him, is also expressly recognized. Many other cases might be cited establishing the proposition that mere personal introduction at the time of the execution of an instrument is not the evidence which the statute requires, and that it is a violation of duty upon the part of an officer, making himself liable to punishment, to take an acknowledgment under such circumstances. He must have evidence o£ identity, and incorporate such evidence in his certificate,, if he desires to escape punishment for the violation of his duty.


author: Lewis J.

text:
    Buffalo Cement Company, Limited, App’lt, v. Pliny B. McNaughton et al., Impleaded, etc., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    Parties—Contractor’s bond.
    A bond, given by a contractor to the city to secure the complete per- ■ formance of his contract, which provides that, in case he fails to pay any persons furnishing him with labor or materials, they may sue on the bond as though named therein, is intended for the benefit of the city alone, and does not authorize an action by a person who should furnished materials-to the contractor. "
    Motion for a new trial on exception, ordered to be heard at general term in the first instance.

      George 0. Miller, for pl’ff; William B. Hoyt and Frank H. Gallan,, for def’t.
   Lewis J.

The defendant William A. Green, by a written contract with the city of Buffalo, dated June 18, 1892, agreed to construct a sewer in Bailey avenue in said city, for which the city agreed to pay $125,707, in semi-monthly payments, as the work progressed. Concurrently with the execution of this contract, a bond was executed by the contractor, Green, as principal, and the defendants McNaughton, Ackley, and one.Ravner, as sureties, to the city of Buffalo. It was in the usual form under seal, and was in the penal sum of $62,864. It was recited therein that:

“Whereas, the above bounden W. A. Green, by an instrument in writing under his hand and seal, bearing even date with these presents, did contract with the city of Buffalo to furnish all the material and labor, excavate for, build, construct, and in all respects complete, on or before the 1st day of January, 1893, a sewer, in the manner, on the conditions, and for the consideration in the annexed and preceding contract mentioned and contained, for constructing a four-foot brick sewer * * * : Now, therefore, the conditions of the above obligations are such that, if the above-bounden W. A. Green shall well and truly, and in' good and sufficient and workmanlike manner, perform the work mentioned in the aforesaid agreement, in accordance with the terms and conditions therein stipulated, and in each and every respect comply with the conditions therein contained, and shall well and truly pay or cause to be paid, in full, the wages stipulated and agreed to be paid to each and every person engaged by him to perform any labor or services, * - * * as specified in the agreement between Green and the city of Buffalo, * * * and shall pay, when the same shall become due, the price of all materials provided or used in the performance of said work, pursuant to the provisions of a resolution of the common council of the city of Buffalo, adopted the 31st day of March, 1869, and shall in all things faithfully perform on his part the terms and conditions of said contract or agreement, then this obligation shall cease; otherwise, to be and remain in full force and virtue. * * * And in case the said W. A. Green shall f'ail to pay to each and every of the persons employed to perform labor or services aforesaid, or to whom anything shall be due for material provided or used in the performance of said work, as hereinabove provided, then each and every of said persons to whom the aforesaid W. A. Green shall be then indebted may bring an action on this instrument, in his or her name, for the recovery of the amount of such indebtedness, in the same manner as if such person was a party named in this instrument.”

The following is the resolution of the common council referred to in said bond:

“Resolved, that the common council hereafter will require any .person, entering into any contract with the city of Buffalo which requires the employment of labor and use of material, to give, in addition to the usual bond for the faithful performance of the contract, a bond with sufficient sureties, conditioned that said contractor shall pay for all labor and material used in the performance of said contract, and that all advertisements for proposals shall state that such bond will be required.”

In 1892 the common council of the city adopted another resolution, which became section 11 of chapter 3 of the Ordinances of the city and is as follows:

“All bonds given for the complete performance of any contract with the city shall contain a clause that the person performing said contract will pay every person who shall furnish supplies or material for use in and for the completion of said contract and every person who shall render services in and about the performance of said contract, and also a further clause authorizing each and every such person to bring an action upon such bond, in the same manner and with the same effect as if he were specifically named in the bond.”

This latter resolution was in force at the time of the execution of the contract and bond. After the giving of the bond, and between the 30th day of July, 1892, and October 31, 1893, the plaintiff furnished to the contractor, Green, a large quantity of cement, which was used by him in the construction of the sewer. This action was brought against the defendant Green, as principal, and the sureties upon the bond, to recover a balance of §1,983.45, due from Green to the plaintiff on account of the cement furnished, as aforesaid. The sewer had been completed, and the city had paid Green in full therefor, prior to the commencement of this action. The defendants MoNaughton and Ackley interposed answers, and at the close of the plaintiff’s evidence, upon motion of their counsel, the plaintiff was nonsuited. The exceptions were directed to be heard in the first instance at the general term.

Upon what ground the nonsuit was placed does not appear from the case. We assume, in deciding this case, that the city had the power to adopt the resolutions mentioned, and to require for its own protection, as a condition for awarding the contract to Green, that lie should furnish a bond like the one in question, with the exception, perhaps, of the provision as to the right of the material men to maintain actions thereunder. The city had the power to require such a bond, to protect itself against any annoyance or expense which might result from the filing of notices of liens upon the fund by laborers employed upon the work, or by persons who might furnish materials to be used in constructing the sewer. The charter provides that the city may enact such ordinances as it deems expedient for the protection of its property, the exercise of its corporate powers, and the performance of its corporate duties. Laws 1891, chap. 105, § 17.

A city may, for the purpose of protecting its property, and, in general, for transacting business of a private character, avail itself of all the rights and remedies afforded to an individual. City of Buffalo v. Bettinger, 76 N. Y. 393. There cannot be a.ny reasonable doubt that this bond, so far as it directly or indirectly tended to the benefit or protection of the city, was binding upon the sureties. The serious question is, was it for the indemnity of the city alone, and taken solely for its protection and benefit? If so, the plaintiff is not entitled to avail itself of its provisions.

The conditions of the bond are very broad. The sureties, in terms, covenant that Green shall pay for all 'materials which he shall purchase and use about the work, and that, in case he fails so to do, the material men may bring an action on the bond in their own names, to recover for their materials. Had it been made to appear upon the trial that the plaintiff, when it furnished the cement to Green, knew of the resolutions of the common council mentioned, and of the bond and its provisions, and that it furnished the materials to Green relying upon the bond, a different question might be presented. The plaintiff might then urge with much force that the bond constituted a kind of open letter of credit, upon the strength of which it had furnished the cement to Green. Had these facts appeared, it might well be urged that the sureties should be estoppe'd from raising the question as to their liability to the plaintiff. Bank v. Coster, 3 N. Y. 203; Sawyer v. Hapgood, 13 St. Rep. 711. But-no such question arises here, for the reason that such a claim was not made in the plaintiff’s complaint, nor was there evidence tending to establish such facts, and the claim was not urged before us upon the argument. If the city had been under any legal obligations to the plaintiff because of its having furnished the cement to Green to be used in constructing the sewer, then the plaintiff could invoke in its behalf the doctrine of Lawrence v. Fox, 20 N. Y. 268. But, as we have seen, no such claim could be made by the plaintiff. The plaintiff is obliged to rely upon a simple promise made to the city by the defendants, in an instrument to which the plaintiff was not a party; there being no priority between the plaintiff and the promisee in the bond, and there being an absence of anything showing that the city could suffer any damage by the failure of Green to pay the plaintiff for tti6 cement

We held, in Coleman v. Hiler, 85 Hun, 547; 67 St. Rep. 41, that, to enforce such a promise, the promisee must have been under some obligation to the person for whose benefit the promise was made. It was held, in Townsend v. Rackham, 143 N. Y. 516; 52 St. Rep. 851, that:

“Such an action could not be maintained by a third person in the absence of any liability in his favor, due or to grow due from the one to whom the promise was made.”

And such is the doctrine of Gifford v. Corrigan, 117 N. Y. 257; 27 St. Rep. 233; Vrooman v. Turner, 69 N. Y. 280, and Finch v. Vix, 143 N. Y. 90; 60 St. Rep. 469.

In some of the states of the Union, statutes have been passed giving a cause of action in favor of material men in such a case as this. A like provision may be found in city charters. But these statutes will be found to contain provisions looking to the protection of the sureties,—in some instances by ashort statute of limitations. The plaintiff is not aided by any such provision, either in •our city charter or by any statute in our state.

If tine plaintiff is entitled to recover in this case, the bond being u sealed instrument, it would seem to follow that the twenty-years statute of limitations applies. If so, it would follow that the plaintiff, or any others who may have furnished material or labor upon the sewer, could at any time during that period maintain actions against the sureties to recover anything due them from the •contractor. Such actions might have been brought before the completion of the sewer, and the penalty named in the bond exhausted, and the city thereby deprived of the protection which the bond was intended to give to it.

We are of the opinion that the plaintiff failed to make a case ■entitling it to recover, and that a nonsuit was properly directed. "The motion for a new trial should be denied, and judgment directed for the defendant upon the nonsuit.

All concur.


author: Bradley, J.

text:
    Burton J. Hopkins, Resp’t, v. Frank W. Clark, as Administrator, etc., App'lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    1. Trial—Reserving questions.
    Questions arising upon objections to the introduction of evidence cannot be reserved by the referee without the consent of the adverse party.

      2. Appeal—Harmless error.
    Exceptions to the introduction of evidence is rendered harmless by the fact that the subjects, to which such evidence relate, are not considered by the referee in the final determination of the case.
    3. Witness—Section 829.
    Where, in an action against an administrator, the plaintiff has been examined by the defendant to prove the making of a note by him to the decedent, he is at liberty, in his own behalf, to state the entire transaction relating to the making, including the consideration, of the note.
    4. Same—Husband and wife.
    A "wife may, in an action by her husband for her services to decedent, testify as to conversations with decedent in respect to such services.
    5. Evidence—Declarations.
    The declarations of the decedent, in an action to recover a claim against his estate, not made in the presence of or to the plaintiff,of his purpose to induce plaintiff to make the arrangement out of which the claim arose," though not evidence of such arrangement, may be admissible to corroborate other evidence thereof.
    6. Same—Hypothetical question.
    The reception of evidence of the value of certain services, as described by plaintiff's wife, in response to a hypothetical question, based upon her description of them alone, is not error.
    Appeal from a judgment in favor of plaintiff.

      H. H. Durfee, for app’lt; M. Hopkins, for resp’t.
   Bradley, J.

The defendant’s testator died about September 1, 1883. This action was commenced May 8, 1885. Its main purpose was to recover for alleged services of the plaintiff, his wife, and other members of his family, performed for the decedent from in April, 1877, to the time of his death, including the expense of removing plaintiff’s furniture and other personal property from his premises to those of the testator in the spring of 1877. The defendant was the adopted son of John Clark, and after his marriage, until the spring of 1877, he resided in a house upon the farm of his foster father, and worked the farm. The latter also resided in another house upon the farm. Early in that year the defendant concluded to leave the farm, and go into business elsewhere. Thereupon the plaintiff, who owned and occupied a small farm a few miles distant, was requested by the testator to move onto the farm of the latter, occupy the house to be vacated by the defendant, work the farm, etc. The plaintiff’s wife was the adopted daughter of the decedent, and there is evidence tending to prove that he stated that she would be remembered by him in his will, and that he would do as well by her as he did by Frank. This expectation may have been some inducement to the plaintiff to go onto Clark’s farm when and as he did. At all events, such inference is permitted by the evidence. As it finally turned out, the testator gave, by his will, nothing to the plaintiff’s wife, but by it gave his property to Frank W. Clark, the defendant. The decent was advanced in years, and the evidence tends to prove that he was quite feeble a considerable portion of the time the plaintiff was on the'farm; that the plaintiff and his wife, and more especially the latter, assisted in waiting upon and taking care of him; that she also performed other services in Mr. Clark’s family ; that the plaintiff’s boys also performed services, by way of doing chores, for the decent; and that those services were worth $100 per year for six years, making $600. This is the amount charged by the plaintiff for such services in his statement presented to the defendant before he commenced the action. It does not very clearly appear upon what specific arrangement the plaintiff worked the farm. But the fact that he and Clark each had a share of the crops tends to prove that he operated it on shares. The plaintiff charges by his complaint that the defendant’s testator became indebted to him, for services other than those before mentioned, in the sum of $150, and gave evidence to the effect that he built new fences on the farm, cleared some of the land of underbrush and stone, made an open and blind ditch, trimmed the orchard, repaired the barn and stables, built a hog-pen, and drew Mr. Clark’s firewood and coal. While the plaintiff gave evidence tending to prove that the value of those services exceeded $200, the evidence, as a whole, in view of the statement of claim made and submitted by the plaintiff to defendant before suit, and of his relation to the farm, in working it, does not fairly justify the allowance of this sum, but does permit him to charge for those services the sum of $101.50. There is evidence tending to prove that Mr. Clark, to induce the plaintiff to come onto and work his farm, promised to pay his expenses in moving, which, his evidence tends to prove, amounted to $78. But the recovery of this, as an independent claim, seems to have been barred by the statute of limitations, which was pleaded as a defense. Nothing appears to take it out of the operation of the statute. That claim must, therefore, be excluded from the recovery. The claim, as here allowed, amounts to $701.50. The defendant’s counterclaim, established as found by the referee, is $182.18, leaving a balance of $519.32, which, with interest from the time of the commencement of the action to the time of the entry of the judgment, $293.19, amounts to $812.51.

Numerous objections and exceptions were taken to the introduction of evidence, and in many instances the questions raised by the objections were reserved,—some with, and others without, consent. This method of disposing of objections to evidence has hitherto been disapproved by the courts, and it is not allowable, in practice, to reserve questions arising upon objections to the introduction of evidence without consent. Sharpe v. Freeman, 45 N. Y. 802; Lathrop v. Bramhall, 64 id. 365; Wright v. Reusens, 133 id. 298; 45 St. Rep. 183.

The defendant’s counsel took exceptions to the rulings finally made upon such objections. In the present case the defendant was not prejudiced by the reservations, so far as they may be deemed made without consent. And much of the evidence, to the introduction of which exceptions were taken, was rendered harmless by the fact that the subjects to which such evidence related were not considered by the referee in the final determination made by him, as appears by his report.

The defendant alleged as a counterclaim the making and delivery by the plaintiff of his promissory note to the defendant’s testator, of date April 11, 1883, for $65, and read the note in evidence. The plaintiff, in reply, as a witness in his own behalf, was asked to state the consideration of the note. The objection interposed by the defendant’s counsel on the ground that the evidence offered related to a personal transaction with the decedent, and was within the inhibition of section 829 of the Code, was overruled, and exception taken. The witness stated that the consideration of the note was the price of certain personal property purchased by him of the defendant’s testator. The proof of the consideration was important for the plaintiff, to repel the presumption, which otherwise might have arisen, that the note was made and taken in settlement of matters then existing between the parties to it. Lake v. Tysen, 6 N. Y. 461. But, if the plaintiff had been examined by the defendant to prove the making of the note, he was at liberty, in his own behalf, to state the entire transaction relating to the making of it. Nay v. Curley, 113 N. Y. 575; 23 St. Rep. 496 When the note was offered and put in evidence, it was described as “the paper identified by the plaintiff as having been made by him.” This imports, as appears by evidence, that on his previous examination by the defendant on the trial, the fact that he made the note was proven, which rendered competent the testimony so given by him after the introduction of the note in evidence.

The exceptions were not well taken to the reception of the testimony of the plaintiff’s wife concerning conversations, in which she took part, between the plaintiff and the decedent, and to her testimony as to the value of the services rendered by her. His relation, as husband, enabled the plaintiff to charge for the services of the wife. He does not derive the alleged claim arising for her services from her. Porter v. Dunn, 131 N. Y. 314; 43 St. Rep. 193.

While the declarations of the decedent, not in the presence of or to the plaintiff, of his purpose to induce him to come and stay upon his farm, furnished no evidence of any arrangement with the plaintiff to do so, they were admissible as corrobative of the facts in that respect appearing by other evidence. It seems that shortly prior to the time the declarations, to the evidence of -which objections were taken, were made, the decedent had been advised of the purpose of Frank W. Clark to leave the farm, and had, through another, communicated that fact to the plaintiff, and his desire to have him and his family move onto the farm, and succeed Frank in his relation to it and to the affairs of the testator. Although the plaintiff was not in the presence of the decedent at the time of the conversation, he was in another room, and within hearing of whát was said. Whether his evidence of it was admissible, within the spirit of the provisions of section 829 of the Code, may be questionable. Holcomb v. Holcomb, 95 N. Y. 316; In re Dunham, 121 id. 575; 31 St. Rep. 858; In re Bernsee's Will, 141 N. Y. 389; 57 St. Rep. 601. But as his evidence did not substantially differ from that of the three witnesses who were present, and as the only material facts to which those declarations of the decedent related were dependent upon and appeared by evidence other than that of those declarations, it is deemed unnecessary to consider the question of the admissibility of the plaintiff’s testimony concerning that conversation.

The reception of evidence of the value of certain services, as described by the plaintiff’s wife, and based upon her description, alone, of them, was hot error. The question thus put to the witness was in the nature of a hypothetical question. McCollum v. Seward, 62 N. Y. 316; Seymour v. Fellows, 77 id. 178. It would have been otherwise if the inquiry had not thus been restricted. Reynolds v. Robinson, 64 N. Y. 589; In re Snelling, 136 id. 515; 49 St. Rep. 695.

It is urged with much force, on the part of the defendant, that there was no liability of the decedent to the plaintiff on account of any of the matters alleged by the plaintiff, and that whatever they treated as matter of claim of either against the other were from time to time adjusted, settled, and paid. It is not deemed necessary here to amplify by statement the facts which the evidence tended to prove. But, having made a careful examination of the evidence, if is sufficient to say that the inferences fairly-derivable from the evidence warranted the conclusion of the referee that the plaintiff was entitled to recover the amount hereinbefore mentioned.

The plaintiff was entitled to recover interest from the time of the commencement of the action. Mansfield v. N. Y. C. & H. R. Railroad Co., 114 N. Y. 331; 23 St. Rep. 739.

The judgment should be reversed, and a new trial granted, costs to abide the event, unless the plaintiff stipulates to reduce the recovery, exclusive of costs, to the sum of $812.51; and in that event the judgment to be so modified, and as modified to be affirmed, without costs of this appeal to either party.

All concur.


author: Lewis, J.

text:
    The People ex rel. Mary B. Hovey, App’lt, v. Henry Leavenworth et al., as Board of Town Auditors, etc., Rep’ts. The People ex rel. Harlow Carpenter, App’lt, v. Same Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

      . Poor—Soldiers—Disallowance op claim.
    A claim for relief, furnished to an indigent soldier upon the recommendation of the relief committee of a grand army post and the order of the officer of such post, is properly disallowed by the board of town auditors, where the alleged relief was furnished by two of the three members of such relief committee.

      Certiorari to review the determination of the board of town auditors, rejecting the claims presented by relators for relief alleged to have been furnished a pauper.

      Certiorari issued on the petition of the relator to review the proceedings and determination of Henry Leavenworth, Frank Camp and Theodore Harrison, composing the board of town auditors of the town of Lindley, Steuben county, in rejecting and disallowing an account of $71, presented to them by the relator for audit and payment. The account was for relief alleged to have been furnished to one Jerry Gleason, an indigent or suffering soldier of the war of the rebellion. The defendants Leavenworth and Camp made return to the writ. The defendant Harrison made no return, for he had, before the service of the writ, removed from the state, and ceased to be a member of the board. The relator alleged in her petition that she caused to be presented to the defendant, on or about November 8, 1894, a claim against the town of Lindley for the care, board and attendance of one Gleason, who was a suffering and indigent soldier of the war of the Rebellion, and that her claim was improperly and unjustly rejected, and disallowed by said board; that the claim was duly proved and evidenced by the recommendation of the relief committee appointed for the town of Lindley, and was ordered to be paid _ by the commander and quartermaster of W. W. Angle Post Ro. 372, Grand Army of the Republic, located at Addison, Steuben county, the nearest post to the town of Lindley, and the only post which had -undertaken to care for indigent or suffering soldiers in said town. It was further stated in the petition that a notice was duly filed in the clerk’s office in the town of Lindley; that said post had undertaken the care of such soldiers, and of the appointment of a committee for their relief; that the petitioner and Gleason both resided in the town of Lindley, and that the relief furnished to Gleason was necessary ; that he was at the time indigent, sick and suffering; that he had been a soldier of the late war, had been a resident of the state for more than a year at the time the relief was furnished ; that the rSlief was furnished pursuant to vouchers which were attached to the petition, which vouchers consisted of two recommendations of John F. Gibson and Jerome B. Hovey, relief committee, dated Lindley, R. Y., July 28, 1893, one recommending that relief to the amount of $17 and the other that $54 be furnished to Jerry Gleason, an indigent and suffering soldier, who had served in the war of the rebellion, and who had been a resident of the state for more than a year; and was a resident of the town of Lindley ; and also two orders, purporting to be signed by B. G. Gardner, commander, D. O’Keefe, quartermaster, W. W. Angle Post Ro. 372, G. A. R., on the town of Lindley, for the sums of $17 and $54 to be paid to the holders thereof. The petition was duly verified. Upon this petition a writ was issued, directing the defendants to certify their proceedings in refusing to audit and allow said claim. The defendants made a return to the writ, in effect that the claim was presented to the board ; that they duly investigated and rejected it on the 9th day of Rovember, 1894 ; that their rejection of the claim was founded or based principally upon the following facts: That upon the 10th day of June, 1893, a notice was filed in the clerk’s office of the town of Lindley by B. G. Gardner, to the effect that he was commander of Angle Post Ro. 372, mentioned, and that that post was located in the town of Addison, in said county, and that said post intended to undertake the relief of indigent soldiers, sailors, etc., as is provided for by chapter 261, Laws 1888, and that John 0. Gibson, Jerome Hovey and William E. Wilson, members of said post, but residents of said town of Lindley, had been appointed relief committee for said town; that there was no post of the Grand Army of the Republic in the town of Lindley ; that no other paper was by said post filed in said clerk’s office during the year 1893, except when said board met, Rovember 9, 1893, Jerome B. Hovey, instead of Mary E. Hovey, presented to said board the same claim hereinbefore mentioned, unverified; that in Rovember, 1893, a certificate was filed in the clerk’s office of the town of Lindley by said Gardner, commander, and Edward P. Seaman, adjutant, of said Angle Post, that said post had undertaken the relief of indigent soldiers, etc., in said town of Lindley, and that the sum of $200 was necessary, or ' would become necessary, for the purpose aforesaid for the current year of 1893 and 1894, and requested the board of said town to audit said amount at their annual meeting in 1893. The relator’s claim, as presented, was in the words and figures following: “ Town of Lindley to Mary E. Hovey, Dr., for food, care and attendance furnished Jerry Gleason, an indigent and suffering soldier of the war of the rebellion, during and about the month of July, 1893, upon the order of B. G. Gardner, commander, and D. O’Keefe, quartermaster, of W. W. Angle Post 372, Grand Army of the Republic, $17.00.” The bill was verified by Jerome B. Hovey, only. It was further stated in the return : That the board investigated the claim, and learned that Gleason was drawing a pension of at least $10 per month at the time the relief was claimed to have been furnished. That he was a citizen of the town of Addison; was a single man, with no one but himself to support; was a blacksmith by trade, and had received in the latter part of April, 1893, the sum of $79 for work performed by him as a blacksmith. That, of the pension money Jerome B. Hovey had received $30. That Gleason was never in the town of Lindley to board or work until he came there to work as a blacksmith in February, 1893, but had a residence and settlement in the town of Addison. That the relator is the wife of Jerome B. Hovey, and lives with and keeps house for him, and has no other home or separate estate of her own; and that the claim, if any exists, is the property of her husband. That the board of auditors had no notice or knowledge of the items of the claim, or what prices were charged for the relief furnished to Gleason. That the post commander, in October, 1894, filed a notice or detailed statement, as provided by law, in which it was stated that the amount of the bills for relief to soldiers in the town of Lindley for the preceding year, and the names of the persons furnishing such relief, were Harlow Carpenter, $98; Jerome B. Hovey, $71; Dr. A. A. Aldrich, $42; in all, $211 ; and that the amount recommended as necessary for the next year, 1894 and 1895, was $189.25. Among other items for the year 1894 was one in favor of John F. Gleason for relief furnished to soldiers, for $98. That the auditors, after rejecting said claim, completed their labors, and adjourned sine die. That the relator’s claim was fairly and honestly considered and audited and rejected by said board, both on the facts and the law.

      H. W. Sanford, for relators; G. L. Smith, for resp’ts.
   Lewis, J.

Chapter 261 of the Laws of 1888, was enacted for the purpose of furnishing relief to indigent and suffering soldiers, sailors and marines who served in the war of the Rebellion, who might need assistance. To that end it was provided in said act ,that the proper auditing board of any town where the poor are supported by the town instead of the county shall provide such sum or sums of money as may be necessary, to be drawn upon by the commander and quartermaster of any post of the Grand Army of the Republic in said town ; or, if there is no post in said town, then by the commander and quartermaster of the post lo-, coted nearest to the city or town, upon the recommendation of the relief committee of said post, in the same manner as is now provided by law for the relief of the poor, provided the soldier is and has been a resident of the state for one year or more; and the orders of said commander and quartermaster shall be the proper-vouchers for the expenditure of said sum or sums of money. Section 2 provides that, in case there be no post of the Grand Army of the Republic in any town in which it is necessary that such relief, as provided for in section 1, should be granted, the town board of said town shall accept and pay orders drawn by the commander and quartermaster aforesaid located in the nearest city or town, upon the recommendation of the relief committee, who shall be residents of the town in which relief may be furnished. It is provided by section 3 of said act that the commander of any post which shall undertake the relief of indigent veterans before the acts of the commander and quartermaster may become operative in any city or town, shall file with the town clerk of said town a notice that said post intends to undertake such relief, and giving the names of the relief committee ; and the commander is required annually, during the month of October, to file a similar notice, and also a detailed statement of the amount of relief furnished during the preceding year, with the names of the persons to whom such relief shall have been furnished, together with a brief statement in each case from the relief committee upon whose recommendatipn the orders were drawn. The execution of the laws of our state, providing for the relief of the poor is generally confided to officials selected by the electors of the town or county, as the case may be; and, as these officials derive their authority from the electors of the town, they naturally feel a degree of responsibility to discharge the duties of their office with due regard to the interests not only of those who1 may need assistance, but also in the interests of their constituents, many of whom contribute as taxpayers to raise the funds appropriated for such relief.

By this act of 1888 members of relief committees are appointed by the commander of Grand Army posts. In this case the commander making such appointments was not a resident of the town of Bindley. Commanders thus appointed are not responsible to the residents of the locality for their appointment, nor for the manner in which they discharge their duties. Ho safeguards against fraud or extravagance in ordering relief seem to be provided for in said act. Heither the officers of the Grand Army nor the committee of relief are public officers, neither do they act under the sanction of any official oath. It was said by Judge Earl, in the case of People ex rel. Crawford v. City of Rome, 136 N. Y. 494; 49 St. Rep. 723, in construing this statute, that:

Such an extraordinary statute, which thus places the public money at the uncontrolled disposal of irresponsible persons not chosen by the people or appointed by any public body or under the control of, any public officer, should, so far as possible, be limited in its operation and scope, and public policy requires that it should be strictly and narrowly construed.”

We are required to determine this case upon the petition, writ and return. Code Civ. Proc. § 2138. The board, in considering and rejecting this claim, were called upon to act upon the facts presented to them. The account presented by the relator was for $71, which, as was alleged in tufe account, was for food, care and assistance furnished Gleason during and about the month of July, 1893. The recommendations of the relief committee, upon the strength of which the relator claims to have furnished the relief, each bore date July 28, 1893. The orders upon the town to pay the sums mentioned bore the same date, which was presumably subsequent to the time the relief in question was furnished the soldier. The relator failed to furnish any detailed statement of what food, care and assistance she had furnished, what price she had charged per day or week, or what length "of time she had boarded and cared for Gleason. No detailed account, so far as appears, was kept by the relator of her service ■ and care. It was made to appear to the board that Jerome B. Hovey, the husband of the relator, had presented in his own behalf a claim to the board for the same amount in 1893, which they rejected. It further appeared that John F. Gibson had a bill for relief furnished this same soldier during the months of May and June, 1893, of $90. Both Hovey and Gibson were members of the relief committee for the town of Bindley for the years 1893 and 1894. It was made to appear to the board that these two members of the relief committee had furnished relief which, as such committee, they had recommended. The error of the board complained of by the relator consisted in rejecting and disallowing her account It may well be doubted whether, under the act in question, they had, as the auditing board of that town, the authority to allow and pay her claim. By section 1 of that act the only duty the auditing board is required to perform is to provide such sum or sums of money as may be necessary to be drawn upon by the commander and quartermaster of the Grand Army post. It is provided by section 2 that, in case there be no post of the Grand Army of the Republic in any town in which it •is necessary that such relief as provided for in section 1 should be granted, the town board of said town shall accept and pay the orders drawn. The town auditors and the town board are two different bodies. The town board consists of the supervisor, town clerk, and justices of the peace or any two of such justices. Section 160 of chapter 569 of the Laws of 1890. Sections 172 and 173 of said act provide for the election of a town board of auditors consisting of three members ; while by section 174 the board of auditors is vested with the power of the town board with respect to auditing, allowing or rejecting claims. The power to pay claims does not seem to have been conferred upon them.

The case of People ex rel. Harlow Carpenter against the same defendants as a board of town auditors was submitted without argument with the case of the relator Hovey. Carpenter’s claim was for food, care, and assistance furnished the same Jerry Gleason during the months of May and June, 1893, upon the order of the same commander, and upon the recommendation of the same committee., There were two recommendations in Carpenter’s case. The first one was dated July 7, 1893, and called for relief to the amount of $70. Indorsed upon this recommendation was the order of the commander and quartermaster for the amount. The second recommendation of the relief committee was dated July 27, 1893, and" recommended relief to Gleason to the amount of $28, upon which was indorsed the order of the commander and quartermaster upon the town for that amount. There was a failure in this as in the Hovey case to state the items in the account. The claim was for food and attendance furnished to the same Mr. Gleason during the months of May and June, and amounting to $98. To that amount the auditors were informed 'that it was claimed that relief had been furnished to Gleason during the months of May, June, and July, amountingin all to $169, to a man who was at the same time in the receipt of a monthly pension of $10, and who had in the month of April of that year received for his labor the sum of $79; making in all $278 for his support for a period of less than one hundred days, being at the rate of about $3 per day. If town auditors are to be compelled to audit such bills upon such evidence, the act under review will furnish a fruitful field for fraud and extortion. We think the defendants, upon the facts presented to them, were justified in refusing to allow the claims.

The writs in both cases should be dismissed, but without costs.

All concur.