author: Peckham, J.

text:
    The People, Resp’ts, v. William P. Cannon, App’lt.

      (Court of Appeals,

      Filed October 24, 1893.)

    1. Criminal law—Stipulation as to facts on trial—Judge’s charge.
    Where both parties to a criminal action, the People and the defendant, have through, their respective counsel stipulated in writing as to the existence of certain facts, and have embodied such facts in a written statement which has been put in evidence, each party has the right to claim that the jury ought to be bound by those facts so far as they go, and the court is entirely justified in so instructing the jury.

      2. Same.
    Where, upon the trial of a criminal action, the substantial part of the facts is contained in an agreed statement thereof, and where the oral evidence is not contradicted or explained, and the evidence of the defendant, tends to corroborate the evidence of the People, the court has the right to tell the jury that if they believe all the evidence, oral as well as written, they ought to convict, but that they have the right to disbelieve the oral evidence, althoup;h uncontradicted. and that as to the agreed statement of facts they have no absolute right-to disbelieve it, and upon the whole case must bring in a verdict of acquittal or conviction.
    Motion for reargument.

      Everett P. Wheeler, for motion ; Wm. Travers Jerome, opposed.

       See 54 St. Rep., 431.

   Peckham, J.

A motion is made in this case for a reargument, grounded upon the failure of the court to notice an exception taken to the charge of the judge upon the question of the duty of the jury. It is said that the opinion just delivered herein shows that the charge is erroneous in principle, and, therefore, the conviction must have been reversed if the court had not overlooked the exception.

The exception was not alluded to in any of the briefs of counsel, and was not discussed upon the argument.

The evidence in this case is contained almost wholly in a statement of facts agreed upon by counsel for the respective parties, and set forth by the authority of a written stipulation which is contained in the record. Among other things, it admits the possession of the bottles by the defendant of the kind and character mentioned in the statute, and that the owners had never given any written or oral consent that such bottles could be taken or sold or otherwise disposed of or trafficked in. There is also the oral evidence of a witness as to finding the bottles on the premises of the-defendant, and there is the oral evidence of the defendant, himself,, which in substance corroborates the evidence of the People.

There is no evidence in explanation or contradiction of the facts thus agreed upon, nor is there the slightest contradiction or explanation of any of the evidence given on the part of the People, but, on the contrary, it is in reality corroborated by the evidence of the defendant.

The question of the burden of proof or the presumption to be indulged in from the fact of possession was not in the case, because the facts agreed upon stated that the owners of the bottles had never given any consent to their sale or to any traffic in them. The question of the constitutionality of the acts, apart from this presumption, was the sole question presented or argued in this case, and it was the desire of both counsel, as expressed to the court and as appears from the record, “ to get the case in such a way that the question raised might be presented to the court having power to pass upon and determine it, that is, the constitutionality of the .statute. ”

" IJnder these circumstances, and when the judge came to charge, he said to the jury that “ the real question upon the undisputed facts in the case (for there is really no dispute as to any material fact relied upon by the People) is as to the constitutionality of these two acts of the legislature.”

“ The real question to be determined in this case is a question of law. It is one for the determination of the court; and for the reasons that I have already assigned in your hearing, I shall hold them constitutional. If you believe the facts as they have been established here, both by the testimony of the two witnesses who have been examined, and also by the testimony contained in the written stipulation which has been read to you and which forms a portion, of the evidence in this case, then it is manifest that the defendant has violated the provisions of the statute, and it will be your duty to convict Mm. On the other hand, if you disbelieve this evidence, and it is entirely uncontradicted, you would have the right to ■ acquit this defendant. But you have no absolute right to disbelieve the statement of facts which are conceded on both sides to be true and correct. You will render a verdict convicting this defendant or acquitting him.”

The defendant’s counsel then excepted to that portion of the charge of the court wherein he stated as is above set forth in italics. The counsel now claims this charge thus excepted to was erroneous under the opinion delivered in this court in this very case. Counsel quotes from that opinion that portion which deals as to the 'other cases (which were argued at the same time with this) with the effect of the statute making the possession by a junk dealer, or dealer in second-hand articles, presumptive evidence of the unlawful use, etc., of the bottles. The opinion states that .such a provision does not really change the burdén of proof, and that the court could not legally direct a conviction, even if the evidence on the part of the People were neither contradicted nor explained, and that the jury would have a right, after a survey of the whole case, to refuse to convict unless satisfied beyond reasonable doubt of the guilt of the accused, even though the statutory prima facie evidence were uucontradicted.

I think there are two answers to this motion. In the first place, I am clear that the exception did not raise this particular •question. It did not raise it in this case, because the question was not in it. It was not in the case for the reason that the -agreed facts admitted what the statute allowed the jury to infer .from the fact of possession. The whole course of the trial, the facts as agreed upon and the expressed desire of both counsel for the People and for the defendant to have the case so treated as to ■enable them to raise the main constitutional question, conclusively •show that the exception was taken in the course of the attempt to raise such question, and not to the point as to the right of the •court to charge as it did as to the duty of the jury to convict if it believed all the evidence.

If that had been the point the stipulation should have been .amended, and ordinary fairness would have then required the counsel for defendant to specify the ground of the exception in order that the attention of the court might be turned to it, and the matter decided with reference to that point.

But I think there is nothing in the opinion in this case which is inconsistent with the charge of the court as given.

The record shows that the whole question of guilt or innocence was submitted to the jury, and it was stated that the jury might convict or acquit the defendant, leaving full power in the jury to decide that question. The statement regarding the duty of the jury to convict was predicated upon the belief by the jury of the facts as they were established both by testimony and by the stipulation, and it was stated by the court that if the jury disbelieved the evidence it would have the right to acquit. The court then added that the jury “ had no absolute right to disbelieve the statement of facts which are conceded on both sides to be true and correct.”

Where both parties to a criminal action, the People and the defendant, have through their ipspective counsel stipulated in writing as to the existence of certain facts, and have embodied such facts in a written statement which has been put in evidence, each party has the right to claim that the jury ought to be bound by those facts so far as they go, and the court is entirely justified in so instructing the jury.

The statement in the opinion in this case, that the court could not legally direct a conviction even if the evidence on the part of the People were neither contradicted nor explained, and that in such event the jury would have the right, after a survey of the whole case, to refuse to convict unless satisfied beyond a reasonable doubt of the guilt of the defendant, is not at all inconsistent witli the charge in this case. There was no direction to convict in this charge. A direction to convict leaves no discretion with the jury and the verdict is entered under the direction of the court. It was in regard to the power of the court to give any such direction in a criminal ease that the expression was used and the right of the jury to give the verdict was asserted. In this case, where the substantial part of the facts was contained in an . agreed -statement thereof, and where the oral evidence was not contradicted or explained, and where indeed the evidence of the-defendant tended to corroborate the evidence of the People, the court had the right to tell the jury (as in substance it did) that if it believed all the evidence, oral as well as written, it ought to-convict, but that it had the right to disbelieve the oral evidence-although uncontradicted, and that as to the agreed statement of facts it had no absolute right to disbelieve it, and upon the whole-case it must bring in a verdict of acquittal or conviction.

The substantial right of trial by jury in all criminal cases provided for by the Constitution is not to be frittered or explained away,-and that right continues all through the trial and up to the time when the jury has, upon its own motion, and not under any direction of the court, come to the conclusion to convict the-accused. This right is not touched, however, by the court when it gives instructions as to the result of the evidence if believed by the jury, so long as the power is left to that body to decide. In other words, the court has the right to tell the jury as matter of law that the evidence on the part of the People, if believed, makes out the crime described in the indictment.

The court in this case upon the whole charge committed no error and we think the motion for a re-argument must be denied.

All concur.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    William E. Curtin, Resp’t, v. William E. Barton, App’lt.

      (Court of Appeals,

      Filed October 24, 1893.)

      1. Municipal count op Syracuse.
    If a court exists under the constitution and laws and has jurisdiction of' a case, any defect in the electiou or mode of appointiug the judge is not available to litigants. Such questions must be raised by some action or proceeding to which the judge himself is a party and where the issue as to-the validity of his election or appointment is directly involved.
    2. Same—Laws 1892, Ch. 842.
    Chap. 342, of the Laws of 1892, establishing the municipal court of. the-city of Syracuse, is constitutional, even though one of its sections provides-for the appointment of the judge-; by the.governor; as said section is separate from all the other provisions, and even if invalid, there still remain distinct enactments for the creation and existence of the court.
    3. Same.
    The legislature has the power to establish an inferior local court of civil and criminal jurisdiction in a city under § 19, of article 6, of the constitution.
    4. Same—Constitution, Ant. 3, § 16.
    Section 25 of said act establishing a local court abolished the office of justice of the peace in the city and repealed certain provisions in relation-to justice’s court. Held, that this did not constitute another or different subject than that expressed in the title.
    5. Same—Constitution. Ant. 3, § 17.
    Sections 14 and 15 provided that the provisions of the Code shall apply to the court and that it shall have the same jurisdiction as justice’s courts. Held, that these were not in conflict with art. 3, § 17, of the constitution.
    Appeal from judgment of the supreme court, general term, fourth department, affirming judgment in favor of plaintiff.

      Charles H. Peck, for app’lt; W. S. Andrews, for resp’t.

       Affirming 51 St. Rep., 942.

   O’Brien, J.

The judgment in this case was rendered in the municipal court of Syracuse, and the only ground upon which it is questioned here is the want of jurisdiction in that court to render it. The defendant’s counsel insists that the court has no legal existence or organization, as the statute upon which its powers and functions must rest is in conflict with certain provisions of the state constitution and, therefore, void. 'This presents a question of the gravest character, as it not only brings in question the power of the legislature, but the jurisdiction and very existence, in point of law, of at least one, and possibly many of the local courts constituting a part of the judicial system of the state.

The court in which this judgment was given has no powers except such as the legislature could and did confer upon it by the .act passed for the purpose of its creation. That statute is chapter •342 of the Laws of 1892, entitled “An act to establish a local •court of civil jurisdiction in the city of Syracuse, to be called the ‘ municipal court of the city of Syracuse,’ and to amend the -charter of said city.”

By the first section of the act it is declared that such a court, with such jurisdiction and power as thereinafter enumerated, is thereby established, and it is made the duty of the governor, as soon as the act took effect, to appoint two judges of the court, whose duty it should be to organize and hold the court as provided in the act. By the second section the judges were to enter upon their duties on the first day of January, 1898, one of whom was to hold office for five years and the other six years, the term of each to be designated by the governor when making the appointment, and they were required to take and file the constitutional oath of office before entering upon their duties.

The third section provides for the election of the judges at the annual charter election to be held in the city next preceding the close of the term of the governor’s appointees, and thereafter as the term, which was fixed at six years, should expire. The next section provides for vacancies, and in several sections following the powers and duties of the judges and the several subjects to which the jurisdiction of the court was to extend are specified and enumerated. None of the provisions are material to the question involved in the appeal except the twelfth section, which provides that “ said court shall have the same jurisdiction over the persons of defendants as is now possessed by justices’ courts of towns pursuant to the provisions of section twenty-eight hundred and sixty-nine of the Code of Civil Procedure, and for the purpose of conferring jurisdiction of the person the said city of Syracuse shall be deemed a town and said court a justice’s court thereof. ”

The most serious objection to this act grows out of the provision authorizing the governor to appoint the first judges. The court was so organized when the judgment under review was given, and it is claimed that the legislature bad no power to appoint or provide for the appointment of the judges. The solution of the question depends upon the construction to be given to section nineteen and the last clause of section eighteen, article six of the constitution. If the words, “ all other judicial officers in-cities,” contained in the last clause of section eighteen, are applicable only to officers and courts existing when the constitution went into effect, and if it can be held that this court could have-been legally constituted and the judges clothed with their official-character under section nineteen, then the legislature clearly had the power to provide for the appointment of the judges by the-governor and senate. It may be difficult to construe these provisions in such a way as to give both full effect and in a manner that would exclude any doubt that the intention of the framers of the constitution had been ascertained and enforced. There is-no doubt, however, in regard to the power of the legislature to establish an inferior local court of civil and criminal jurisdiction in a city under section nineteen, the only question here being as to the power to appoint the judges and confer this power upon-'the governor. We do not deem it necessary to decide that question in this case. This court will not enter upon an examination of the powers of the legislature to enact a given layr unless-it be necessary in order to determine questions appearing upon the record. If there are other questions in this case decisive of the rights of the parties, without questioning the power of the legislature to enact a statute, we will postpone the inquiry until the necessity for the examination is imperative. Doyle v. Metropolitan El. Railway Co., 136 N. Y., 505; 49 St. Rep., 746; People v. Rosenberg, 138 N. Y., 410; 53 St. Rep., 1.

Whatever may be said with respect to the power of the legislature to provide for the appointment of the judges, nothing can be-urged against its power to establish the court. Hor can it be doubted that the statute in- question does in part establish such court if the objections which are based upon other provisions of the constitution, hereafter noticed, are not good. The judges-were in part appointed by the governor, were in possession of the office engaged in discharging the duties under color of such appointment. They were, therefore, officers de facto, discharging-judicial duties under color of legal title, and such title can be questioned only by the stale under whose authority they were invested with the character at least of de facta officers. This principle is founded on considerations of public policy, and its maintenance is essential to the preservation of order, the security of private rights and the due enforcement of the laws. Moreover, it is sanctioned by abundant authority. Carpenter v. People, 64 N. Y., 483 ; State v. Carroll, 38 Conn., 449 ; Read v. Buffalo, 3 Keyes, 447; People v. Petrea, 30 Hun, 110. The incumbent of the office is not a party to this action. His title to the office is not in question directly, as in the cases where an action in the nature of a quo warranto is brought by the attorney-general or where he brings the suit himself to recover the salary. When a court with competent jurisdiction is duly established, a suitor who resorts to it for the administration of justice and the-protection of private rights should not be defeated or embarrassed by questions relating-to 'the title of the judge, who presides in the court, to his office» If the court exists under the constitution and laws and it had jurisdiction of the case, any defect in the election or mode of appointing the judge is not available to litigants. Such questions must be raised by some action or proceeding to which the judge himself is a party and where the issue as to the validity of his election or appointment is directly involved. It would be an unseemly proceeding derogatory to the dignity of the court and subversive of all respect for the orderly administration of justice to permit private litigants to enter'upon an inquiry as to the title of the judge, before whom the action is pending, to his office. Of course, if such an inquiry is permissible, the very judge whose official existence is in question must, in the first instance at least, determine it, and thus he is compelled to violate a fundamental principle in all proceedings of a judicial nature, which precludes a person from acting as a judge in his own case or in respect to a question in the result of which he has a personal interest.

If this judgment is void for the reason that the legislature had no power under the constitution to provide l'or the appointment of the judge by the governor and senate, so are all other judgments rendered since the court was organized. The principle of permitting private litigants to raise such questions would thus be productive of intolerable confusion and mischief and cannot be sanctioned. The defendant was summoned to appear in a court which had been established by law, whether the method of selecting the judge was valid or not. The judge was in possession of the office and engaged in the discharge of its duties and in the exercise of its power under the authority of a commission from the governor and an act of the legislature. So long as the government permits him to hold the office and to discharge its functions, the constitutional validity of his appointment is a question that does not concern the defendant.

The section of the statute which provides for the appointment of the judges is separate from all the other provisions, and, hence, even if invalid, there would still remain distinct enactments for the creation and existence of the court, and defining its powers and jurisdiction. There was, therefore, a court legally constituted, and a judge acting under color of authority, whose official acts were valid and binding as to the public and third parties until by some direct proceeding by the sovereign power he was ousted, or his commission adjudged to be void. The further point is made against the validity of the court that the court is not local, but its jurisdiction is extended by § 12 over adjoining towns into which process may be sent by the terms of the act. Without inquiring whether that objection would affect the jurisdiction of the court in this case, even if the language of the section was not open to any other construction, it is sufficient to say that, reading the whole act together, the intention to create a court, the jurisdiction of which should be confined to the limits of the city of Syracuse, is manifest. That construction being reasonable and in favor of the validity of the statute, it should be adopted, rather than the contrary. The words of § 12 are descriptive of the character rather than the territorial extent of the jurisdiction. That was fixed by the general words 'clearly indicating the purpose to create nothing more than a local city court. Words of the same import are to be found in other acts creating local courts, and this court lias given to them the same construction. Brandon v. Avery, 22 N. Y., 469 ; Geraty v. Reid, 78 id., 64: People v. Terry, 108 id., 1; 12 St. Rep., 773.

The objection that the act contains more than one subject, and, therefore, violates article 3, § 16 of the constitution, is also untenable. The only ground upon which this point is based is that whereas the general purpose of the act was to establish a local court, § 25 abolishes the office of justice of the peace in the city, and repeals certain provisions in relation to justices’ courts. The general purpose of the act was to establish a local court in place of that held before by justices of the peace, with somewhat more extensive jurisdiction. The abolition of the office of justice of the peace and of the inferior tribunal called a justice’s court was so connected with and pertinent to the whole scheme that it ■did not, within settled rules, constitute another or different subject. Harris v. People, 59 N. Y., 599 ; Wenzler v. People, 58 id., 516; Astor v. Arcade R. Co., 113 id., 93; 22 St. Rep. 1; Sweet v. City of Syracuse, 129 N. Y., 331; 38 St. Rep., 933.

In regard to the objection that as §§ 14 and 15 provide that the provisions of the Code shall apply to the court, and that it shall have the same jurisdiction over the person of the defendant us justices’ courts, the act is in conflict with article 3, § 17 of the constitution, which provides that “ no act shall be passed which shall provide that any existing law, or any part thereof, shall be applicable, except by inserting it in such act,” all that is necessary to say is that the current of authority in this court has settled the question the other way. People v. Banks, 67 N. Y., 568; People v. Squire, 107 id., 593; 12 St. Rep., 832; People v. Lorillard, 135 id., 285; 47 St. Rep., 823.

The conclusion, therefore, is, that the court was legally constituted, and the judgment should be affirmed.

Judgment affirmed, with costs.

All concur.


author: Andrews, Ch. J.

text:
    The United States Trust Company of New York, as Substituted Trustee, Resp’t, v. Philip V. R. Stanton, Impl’d, App’lt.

      (Court of Appeals,

      Filed October 24, 1893.)

    Executobs and administbatobs—Set oee—Countebclaim.
    Defendant was employed by the executor and former trustee to perform legal services in relation to the estate. No agreement to give him a lien on the estate was made. In ail action to foreclose a mortgage given by him to such former trustee the trial court found the rendition of the services and their value and that the bond and mortgage had been fully paid thereby. But the court refused to render judgment for the balance of the counterclaim against the plaintiff as demanded by the defendant. Held, no error.
    Appeal from judgment of the supreme court, general term, second department, reversing judgment in favor of defendant.

      Philip V. R., Stanton, for app’lt; Edward W. Sheldon, for resp’t.

       Affirming 50 St. Rep., 676.

   Andrews, Ch. J.

The United States Trust Company, as substituted trustee under the last will and testament of Gilbert W. Bowne, deceased, brought this action to foreclose a mortgage executed to the original executors and trustees by the defendant Stanton. Among other defenses Stanton set up a counterclaim ■for services as attorney rendered on the retainer of the original executors and trustees in divers suits and proceedings in the business of the estate, all of which services were rendered prior to the substitution of the plaintiff. The trial court found the rendition of the services and their value, and that the bond and mortgage had been fully paid thereby. But the court refused to render judgment for the balance of the counterclaim against the plaintiff, as demanded by the defendant. The decision was clearly right. The plaintiff had entered into no contract with Stanton. The alleged services were rendered under a contract with its predecessor in the trust. That contract bound the former trustees individually and though the services were rendered for the benefit of the trust estate they were not rendered under such circumstances, so far as appears, as to create a charge thereon which could be enforced by Stanton. Austin v. Munro, 47 N. Y., 360 ; New v. Nicoll, 73 id., 127.

The plaintiff, when it succeeded to the trust, did not assume any obligation created by any contract between the former trustees and Stanton, and none was imposed by law. If any equitable ground exists for charging the trust estate for the value of the services rendered by Stanton, ho such ground appears in the record, and assuming it to exist, it would furnish no reason for charging the plaintiff personally with the debt, which is what the defendant Stanton sought to do in demanding an affirmative judgment against the plaintiff for the excess of the counterclaim over and above the amount applied in satisfaction of the mortgage.

The case of Davis v. Stover, 58 N. Y., 473, is not an authority for the contention of the defendant. In that case a defendant was permitted to set off against a debt owing by him to the insolvent bank the value of services rendered on the employment of the receiver, which the receiver might properly have paid out of the trust estate. Nor does the statute of counterclaim permit an affirmative judgment for the excess in a case like this. The plaintiff is a trasteé and sues as such, and by sub. 3 of § 502 of the Code a demand against the plaintiff personally cannot be set up as a counterclaim, and by the same section only so much of a demand existing against the person whom the plaintiff represents or for whose benefit the action is brought, as will satisfy the plaintiff’s demand, can be allowed as a counterclaim.

The question as to the correctness of the judgment, so far as it applied so much of the value of the services as was necessary in satisfaction of the mortgage, is not involved.

We think the part of the judgment from which an appeal was taken, denying the right of the defendant Stanton to a judgment against the plaintiff personally for the excess, was right, and it should, therefore, be affirmed.

Judgment affirmed, with costs.

All concur.


author: Bischoff, J.

text:
    Lena Spitz, App’lt, v. The Mutual Life Association of America, Resp’t.

      (New York Common Pleas, General Term,

      Filed October 2, 1893.)

    1. Insurance (life)—Reinstatement after forfeiture—Waiver.
    By the terms of the certificate of membership in the defendant association the penalty for non-payment of premiums was limited to forfeiture of membership, and it was provided that a waiver thereof must be in writing, signed by the secretary and one other officer, and previously authorized by the board of directors or executive committee. At a time-When four premiums were due and one about to mature the member caused the five premiums to be paid to defendant's assistant cashier who issued several receipts therefor, purporting to be signed by the secretary and cashier, and thereafter wrote to him in relation to the service of notices and requested information as to the state of his insurance. Held, that the receipt of the money and the receipts given therefor constituted a sufficient waiver according to the terms of the contract, and that defendant was precluded from claiming a forfeiture for non-payment of such premiums by its new agreement, founded on an adequate consideration,, and by its subsequent recognition of the membership as still in force.
    2. Same—Suppression of facts.
    At the time of such reinstatement no inquiry was made as to the condition of health of such member. Held, that his omission to disclose that he was then in hospital suffering from the disease which caused his death was not a concealment or suppression of a material fact which would, avoid his membership.
    3. Same.
    An omission to state, in answer to a question in the application as to what amounts were insured on his life and in what companies, that he was a member of certain benevolent associations which paid mortuary benefits, and in answer to a question as to the age and condition of health of living brothers, that he had half brothers, does not necessarily invalidate the policy on the ground of concealment, but the question as to whether it amounted to a concealment or suppression of material facts is one for the jury.
    4. Same—Physician's certificate.
    A physician’s certificate, furnished as part of the preliminary proofs, can only be taken prima facie as an admission against interest where the accuracy of its contents has not been disclaimed.
    5. Same—Discrepancy of statements.
    Falsity of the statements made by the insured as to the cause of death of his father and mother cannot be assumed merely from the fact that he had made different statements to other companies.
    Appeal by plaintiff from a judgment which directed the dismissal of her complaint after both parties to the action had concluded the introduction of evidence.
    Action by the beneficiary to recover the mortuary sum payable pursuant to the terms of her husband’s membership in the defendant association. Payment of the sum was resisted on the grounds that the membership was forfeited owing to^ non-payment of premiums, and that it, and all benefits flowing therefrom, were avoided because of the member’s suppression, or concealment, of material facts, and by breach of his warranty of the truth of his representations in his application for membership, all of which representations were agreed to be taken as material.

      George S. Hastings, for app’lt; E. T. Lovatt, for resp’t.
   Bischoff, J.

This action was brought by the widow and beneficiary of Ignatz Spitz to recover the mortuary sum payable upon his death pursuant to the terms of his certificate of membership in the defendant association. As part of the contract of membership it was agreed that for non-payment of any premium at maturity, or for any breach of the member’s warranty of the truth of the representations made in his application for membership, all of which representations were agreed to be deemed material, or for the suppression or concealment of any material fact, the membership, and all rights and benefits accruing therefrom, should become forfeited and avoided. Defendant’s answer set up as a defense that at the time of his death Spitz’ membership had been forfeited and avoided for each of the causes indicated.

On the trial of the issues the learned trial judge, after both parties had concluded the introduction of evidence, on motion of defendant’s counsel withdrew the case from the jury and dismissed the complaint. The particular grounds of the motion were that it conclusively appeared from the evidence that Spitz’ membership was forfeited for non-payment of premiums; that there was insufficient evidence of a waiver of the forfeiture; that it further appeared that at the time of his application for membership Spitz suppressed, or concealed, certain pertinent-and material facts, and that he was guilty of a breach of warranty respecting the truth of the representations contained in his application by which his membership was avoided.

It is indisputable, and the fact is conceded by appellant, that on December 21, 1889, Spitz’ membership was forfeited, owing to his failure to pay four several premiums, which had matured respectively on May 15th, July 15th, September 15th, and November 15th, of the same year, and that a fifth premium would, have matured on January 15, 1890. By express provision of the-certificate of membership, the indorsements thereon were made-part and parcel of the contract of membership, and from these indorsements it appeared that a waiver of any forfeiture, to be operative and binding on the defendant, must be in writing, signed by the secretary and one other officer, and previously .authorized by the board of directors, or executive committee. No particular form of waiver was prescribed, neither was it required that the approval of the board of directors, or executive committee, should be signified in writing.

On December 21, 1889, Spitz caused the aggregate amount of the five premiums above mentioned to be tendered to the assistant cashier at defendant’s office, by whom it was received and who issued a several receipt for each premium purporting to have-been signed by the secretary and cashier. The legal presumption in favor of the performance of duty precludes any claim by defendant, in the absence of evidence to such effect, that neither the assistant cashier in the issue of the receipts, or the secretary and •cashier in signing them, acted without authority from the boEyd •of directors or executive committee.

Therefore, since the effect of the receipt of the premiums was to recognize the vitality of Spitz' membership, the receipts, signed as required, constituted a sufficient waiver in writing according to the terms of the contract of membership. The assistant cashier’s denial of authority, in view of the presumption referred to, created but a conflict of evidence to be determined by the jury. Kahn v. Lesser, 18 N. Y. Supp., 98; 43 St. Rep., 149.

But furthermore, and independently of any waiver, we are of the opinion that defendant was precluded from claiming a forfeiture for non-payment of the premiums by a new agreement founded upon adequate consideration. It was competent for defendant to waive any provision for its benefit reserved in the contract of membership, Kenyon v. Knights' Templar & Masonic Mutual Aid Association, 122 N. Y., 247; 33 St. Rep., 467, and referring to the indorsements upon the certificate of membership issued to Spitz, it will appear that in no event was the latter to become indebted to defendant, or credit be given him for any premium, the penalty for non-payment being explicitly limited to forfeiture of his membership. While defendant’s receipt of the premiums tendered on Spitz"behalf is consistent with an innocent motive, we cannot assume that it intended to perpetrate a fraud, and, in view of the fact that Spitz was not at the time indebted to defendant for the amount, we are forced to construe the fact of the receipt of the premiums as evidence of an intention to reinstate the forfeited membership. Upon no other theory was defendant entitled to receive and retain the money paid it, and having entered into an agreement for such reinstatement, and received valuable consideration therefor, it could not subsequently repudiate the obligations thus assumed. Defendant's assistant cashier testified that in the acceptance of the premiums, and the issue of the secretary, and cashier's receipt therefor, he acted outside of his authority. This, however, considered with the presumption to the contrary, as already stated, at most created a conflict of evidence upon which plaintiff was entitled to go to the jury. There was, besides, affirmative evidence in support of plaintiff’s claim of the assistant cashier’s authority. He admitted having, accounted for the moneys received by him to the defendant, and without such admission it being his duty so to account, will be presumed to have done so in the absence of evidence to the contrary. Turner v. Kouwenhoven, 100 N. Y., 115.

The amount paid for the defaulted premiums was retained and never offered to be returned by defendant. Ten days after its receipt thereof the secretary wrote Spitz, referring to the fact that there had been complaint to the effect that members did not receive notices intended for them, and requesting Spitz to inform defendant concerning the state of his insurance with the latter. An inference from this letter is that defendant then recognized Spitz as among its members. Granted that at the time of his acceptance of the amount of the defaulted premiums defendant’s cashier was without authority to bind it by an agreement for •Spitz’ reinstatement, defendant could notwithstanding ado¡Jt and ratify the act of its officer and agent; that it did so is-apparent from the facts that" it received and retained the amount paid- as the consideration for that agreement knowing at the time of the forfeiture of Spitz’ membership and that it subsequently recognized the membership as still in force.

Defendant’s counsel contends that because at the time- of- payment of the defaulted premiums the fact was not disclosed that Spitz was then ill at the hospital suffering from the disease which eventuated in his death on the 9th day of the next succeeding month, Spitz was guilty of a concealment or suppression of a material fact which avoided his membership. It should be •observed, however, that reinstatement of the forfeited membership proceeded from a new agreement to which the conditions of the ¡first agreement did not apply. No inquiry was made at the time of the new agreemennt on defendant’s behalf concerning the member’s condition of health, and in the absence of every intimation by defendant that it deemed his continued exemption from ill-health essential, or a condition precedent, to the new agreement it cannot truly be said-that Spitz concealed or'suppressed any fact It was optional with defendant to refuse the tender of the defaulted premiums, or to ratify the act of its assistant cashier upon learning of his acceptance of the amount, until satisfied concerning the state of health of the delinquent member; but, having wiavedall information on that point, it cannot subsequently avoid its obligations because the information was not voluntarily given or upon any pretense that it would not have made the agreement had it known of the fact of the member’s illness.

Defendant’s claim on the trial that at the time of his application for membership Spitz concealed or suppressed certain material facts was predicated of his omission to state in answer to the following inquiry: “ What amounts are now insured on your life, and in what companies ? ” that he was at the time a member of the American Legion of Honor and of the Hillel Lodge of the Order of Free Sons of Israel, two benevolent associations whose-membership was attended by the payment of a mortuary benefit-to the designated beneficiary of a deceased member; and that in: answer to a further inquiry concerning the age, condition of health, etc., of living brothers he did not disclose that he hadi three maternal half-brothers. Neither of these omissions, however, -can be considered a concealment or suppression under the rule which requires that the inquiry, being in the language of the insurer, must receive the interpretation which is most favorable to the insured, Dwight et al. v. Germania Life Ins. Co., 103 N. Y., 341; 3 St. Rep., 115; Darrow v. Family Fund Society, 116 N. Y., 537; 27 St. Rep., 474, and the further rule that if the answer is ".true-and comprehensive in one proper sense of the inquiry, it cannot be successfully claimed by "the insurer to be untrue or in-■com-plete in another sense, so as to work a forfeiture. Am. & Eng. Ency. of Law, vol. 11, p. 296 ; Kenyon v. Knights Templar & M. Mut. Aid Assn., supra. In popular acceptance,, benevolent asso? ciations, though perhaps in some respects resembling them, are not regarded as the equivalent of life insurance companies, nor are mortuary benefits to the surviving family of a deceased member of such associations commonly deemed life insurance in the sense in which the last mentioned phrase is understood. Some of our business institutions confer such mortuary benefits upon the fami-. lies of their deceased members, yet it would not occur to any member, except perhaps one of more than ordinary precision, in answer to an inquiry similar to the one addressed to Spitz concerning insurance on his life, to describe himself, for instance, as a member of the Produce or Stock Exchange. So with reference to the inquiry concerning Spitz’ brothers. It cannot be legally assumed that the term “brother” necessarily and at all times, and under all circumstances, comprehends a half-brother, while even lexicographers are at variance in the matter. Am. & Eng. Ency. of Law, vol. 2, p. 599, note 2.

Precisely the question here presented was under review in Bridgman v. London Life Ass. Co., 44 U. C., Q. B., 536, and it was there held that because of the variance of common understanding of the term “ brother ” with reference to its inclusion or exclusion of a half-brother it was properly left to the jury to determine whether or not the insured’s representation that he had but three brothers of whom two were living, when in fact he also had four half-brothers of whom only one was living, was false. Since Spitz’ answers, therefore, to both questions propounded to him were true and comprehensive in at least one proper sense of the questions, it was the province of the jury to say whether he was justified in so understanding the inquiries and whether, or not, the answers given involved a suppression or concealment of the matters which defendant maintains should have been disclosed. Dwight et al. v. Germania Life Ins. Co., 103 N. Y., 341, 353; 3 St. Rep., 115; Kenyon v. Knights Templar & M. Mut. Aid Assn., supra. .

One further alleged concealment is urged by defendant’s counsel. It appears that in answer to an inquiry concerning his mother’s age at and the cause of her death, contained in the application for membership in the defendant association, which is dated March 12, 1889, Spitz replied that she died at the age of sixty-two, and that the cause of her death was unknown to him, and that in answer to similar inquiries on behalf of the American Legion of Honor in January, 1883, and the Equitable Life Assurance Society of the H. S. in January, 1885, he stated that his mother died of heart disease. The burden of proof of the falsity of the representation, however, was upon defendant, Grattan v. National Co., 15 Hun, 74, 78; Jones v, Brooklyn Co., 61 N. Y., 79, 86; Van Valkenburgh v. American Popular Co., 70 id., 605, and there was an utter absence of all evidence from which it can be inferred that Spitz had knowledge of the precise nature of his mother’s ailment which terminated with her death. It does not appear that Spitz was skilled in medical science sufficient to have an opinion of his own from observation, and it may, therefore, be assumed that the statements of the cause of his mother’s death, made .in 1883 and 1885, referred to no mere than his belief in the matter upon information derived from, others, which belief subsequent experience or information may have impaired, so that in 1889 when he stated in answer to defendant’s inquiry that the cause of his mother’s death was unknown to him his answer may have been perfectly true because of the uncertanty of his belief.

It remains only to notice the alleged misrepresentations and the breach of warranty for which defendant’s counsel claimed Spitz’ membership to have been avoided. In his application for membership Spitz represented that prior to that time he had never been afflicted with palpitation, disease of the heart, dizziness or short breath. The only evidence relied on to show the falsity of this representation is the certificate of Dr. Jackson, who ■had known Spitz only for the seven days immediately preceding the latter’s death, and who stated it to be his opinion that the ■duration of Spitz’ last illness was two years. Assuming that this certificate, which was among the preliminary proofs furnished to defendant pursuant to the ¡¡revisions of the contract of membership as a condition precedent to plaintiff’s right to demand payment of the mortuary benefit, may be taken prima facie as an admission against interest, the proof having been admitted in evidence on plaintiff’s offer, such can only be its effect provided the accuracy of its contents has not been disclaimed. Goldschmidt v. Mutual Ins. Co., 102 N. Y, 486, 492 ; 2 St. Rep., 421. Reference need only be had to plaintiff’s affidavit, which is among the preliminary proofs in evidence and attached to Dr. Jackson’s certificate, to show that- the statements of the latter, in so far as they may tend to disprove the truth of Spitz’ representation, are amply and emphatically denied. Defendant, in this respect, therefore, must be deemed to have failed in its proof.

Hext it was claimed that Spitz misrepresented the facts in his answers to the following questions:

Q. How many times have you been confined to your room or bed from sickness during the last seven years, and from what disease ? A. Hot once.

Q. Give the names of physicians and their addresses who then attended you ? A. Had none.

Q. Hame and residence of your usual medical attendant ? A. Have none.

Ho other evidence -was adduced, and none is claimed, from which the u-ntruth of the answers is apparent, other than plaintiff’s admission that during the five years last preceding his death her husband consulted Doctors Schraum and Arcularius. Dr. Arcularius, however, testified that he had never been consulted by,- or prescribed for Spitz, while Dr. Schramn’s testimony is to the effect that he was once called upon by Spitz, and asked to prescribe for an “ attack of indigestion.” It is a mere pretense, therefore, not meriting discussion, that it conclusively appeared on the trial that Spitz’ last mentioned answers were false.

Lastly, Spitz represented that his father died of pneumonia at fifty-five years of age, whereas it appeared in evidence, from his representations to the American Legion of Honor, that his father's death was due to Bright’s disease, and occurred when he was fifty-four years old. It is apparent, however, that the statements concerning his father’s age at death were mere approximations and so understood, and, in that sense, it may be true that his father was both fifty-four and fifty-five years of age, being past fifty-four and not yet having attained fifty-five. It may be equally true that the father died of pneumonia and of ¿right’s disease, and the contrary' cannot be assumed. The burden rested upon defendant to show it by evidence, of which none was attempted to be adduced. Pathological inquiry tends to demonstrate that there are many diseases to which mankind is subject which develop as specific resultants acute functional disorders of the human organism, the latter being the immediate and the former the remote cause of death. It does not, therefore, involve a contradiction to attribute death to both the general and the specific causes. But, however that may be, we cannot assume his statement to defendant to have been untrue because Spitz at other times attributed his father’s death to a different cause. It does, not follow that the last mentioned statements were true.

The foregoing considerations necessarily lead to the conclusion that it was error to dismiss the complaint.

The judgment appealed from should, therefore, be reversed, and a new trial ordered, with costs to the appellant to abide the-event.

Bookstaver and Pryor, JJ., concur.


author: Bischoff, J. Pryor, J.

text:
    Henry Raabe et al., App’lts, v. Albert C. Squier et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed October 2, 1893.)

    1. Appeal—Absence op findings.
    Where the complaint has been dismissed for failure of proof and the record contains no finding of facts essential to a recovery, and no exception to a refusal by the referee to find as requested by the plaintiff, no such request having been made, no error for which the judgment should be reversed is presented.
    2. Same—Findings.
    Findings negativing the existence of facts claimed are no findings at all,, and exceptions thereto are unavailing. The findings of fact which are-comprehended by § 1022 of the Code refer to an affirmation of the facts, upon which the demand for relief is founded, and not to a negation thereof.
    Appeal from the judgment of a referee which directed the dismissal of the complaint for insufficiency of the proof.
    Action by sub-contractors and material men against contractors and alleged owners to establish a lien claimed pursuant to the provisions of the Mechanics’ Lien Law (Laws 1885, ch. 842) which was discharged by the order of the court upon the filing of a bond as by the same statute in such cases also provided, and to recover personal judgment against the contractors and against the owners as alleged guarantors.

      Alfred Taylor, for app’lts; Ernest Hall, for resp’ts Stokes and Jencks ; Alex. Thain, for resp’ts Squier and Whipple.
   Bischoff, J.

Every material allegation of the complaint having been controverted by the several answers of all the defendants, it devolved upon plaintiffs to establish them by sufficient evidence. This they attempted to do, but having rested after the introduction of direct evidence the referee, on motion of counsel for all the defendants, dismissed the complaint for insufficiency of the proof. The referee’s report omits the finding of every fact alleged in the complaint and essential to plaintiffs’ recovery against all or any of the defendants. Exceptions to the conclusions of law are therefore unavailing, Daniels v. Smith, 3 Silv. Ct. App., 672;, 42 St. Rep., 644; and as the record is destitute of any exception to a refusal by che referee to find as requested on plaintiffs’ behalf, no such requests having in fact been submitted, there can be no-error apparent for which the judgment appealed from should be reversed. Wood v. Lary, 124 N. Y., 83; 35 St. Rep., 53; Burnap v. Natl. Bank of Potsdam, 96 N. Y., 125 ; West v. Van Tuyl, 2 Silv. Ct. App., 501; 28 St. Rep., 549. Mor will the appellate court reverse the judgment merely because, if a request to find had been made, it would have been error to have refused it. Lyons v. Cahill, 18 St. Rep., 375 ; Hugg v. Shank, 1 Silv. Sup. Ct., 153; 23 St. Rep., 312.

Defendants Stokes and Jencks were sought to be held in the double capacity of alleged owners and guarantors, and the facts required, in addition to those of which the liability of the other defendants was predicated to authorize plaintiffs’ recovery against the first mentioned defendants are expressly negatived by the referee’s report under so called findings of fact to which plaintiffs, have filed exceptions. If we assume these alleged findings to be proper as such, but contrary to the evidence, the error is wholly' immaterial in the' absence of the facts required to show Squier and Whipple’s liability as contractors and principals. As a matter of course, if there are no facts justifying the conclusion that Squier and Whipple are liable as contractors and principals, no-right of recovery against Stokes and Jencks as owners and guarantors is shown. But these so called findings are plainly no findings at all, and the exceptions thereto are equally unavailing. Patterson v. Graves, 11 How. Pr., 91; Matter of Fithian, 25 St. Rep., 557. The party to an action against whom relief is sought is not required to establish the non-existence of the alleged facts of which the claim for relief is predicated. If the alleged facts-are not found, or have not been established by the evidence,' it follows as the only proper and inevitable conclusion of law that the claim for relief should be denied. Hence the findings of fact which are comprehended by § 1022 of the Code of Civil Procedure refer to an affirmation of the facts upon which the demand for relief is founded, and not to a negation thereof. This is conclusively apparent from §§ 992 and 993, which are to the effect that a finding without any evidence tending to sustain it is reviewable, if duly excepted to, as a ruling upon a question of law-It requires no argument to demonstrate that these last mentioned. provisions cannot apply to a mere negation of the facts essential to recovery.

We find no merit in the exceptions taken to rulings on the trial. In every instance the testimony excluded was subsequently submitted.

The judgment should be affirmed, with costs.

Pryor, J.

Upon the record no error of law or of fact in the decision of the referee is presented for review.

No question of law is raised, because the legal conclusions are justified by the findings, Daniels v. Smith, 3 Silv. Ct. App., 672; 42 St. Rep., 644, because no finding is wholly without evidence, Halpin v. Ins. Co., 118 N. Y., 165; 28 St. Rep., 788, and because there was no refusal of a request to find. Code, § 993.

N either is any question of fact before us, because the appellants made no request for a finding. Hugg v. Shank, 1 Silv. Sup. Ct., 153; 23 St. Rep., 312; Bishop on Code Practice, etc., 395; 2 Bumsey’s Practice, 334. Facts not found, and as to which no finding was requested, may not be considered for the purpose of reversing a judgment. Burnap v. Bank, 96 N. Y., 126; Thomson v. Bank, 82 id., 1.

Judgment affirmed, with costs.


author: Bookstaver, J.

text:
    Patrick B. McEntyre, Resp’t, v. Charles A. Tucker, App’lt.

      (New York Common Pleas, General Term,

      Filed October 2, 1893.)

    1. Appeal—Case.
    A certificate stating that “The annexed case contains all the evidence bearing upon the exceptions given upon the trial ” is sufficient to warrant the appellate court in reviewing the facts.
    2. Contract—Architect’s certifcate.
    Where a building contract expressly makes all payments conditional on certificates of the architect that the work has been done to his satisfaction, certificates signed with the name of the architect by bis assistant and delivered by the latter to the contractor, are not sufficient.
    '3. Same—Ratification.
    Payments made upon the presentation of such certificates of sums called for by the contract as the building reached certain stages, do not amount to a ratification of the assistant’s acts or a waiver of the owner’s right to require the final certificate of the architect himself on the completion of the work.
    4. Same.
    Variations and omissions in matters of ornamentation may be material, and constitute a valid objection to the work which will justify a withholding of the certificate.
    Appeal from a judgment entered in favor of the plaintiff upon the report of a referee.

      Henry G. Atwater, for resp’t; Dill, Chandler & Seymour, for app’lt.
   Bookstaver, J.

This action is broug_t to recover a balance ■claimed to be due on a building contract, and for extra work. The first question to be determined is whether or not the certificate annexed to the case is sufficient to warrant the court in

reviewing the facts on appeal. It is in the following words: “ The annexed case contains all the evidence bearing upon the exceptions given (taken) upon the trial.” This is very different from the certificates in Dibble v. Dimick, 53 St. Rep., 225, and Hyman v. Friedman, 45 id., 636; aff’d 138 N. Y., 639 ; 53 St. Rep., 929; in both of which the word testimony was used in place of evidence, which is a word of very different import. Testimony, strictly speaking, means the evidence of a witness given under oath, and even when used in its widest sense it still has reference to some living agent as its author; while evidence includes not only the testimony of witnesses, but everything else which .is legally submitted to a court as a means of ascertaining the truth of any alleged matter of fact under investigation, as deeds, letters, contracts, etc. Consult Webster Imp. Dic.; Burrill’s L. D., ad his verbis. Hence the necessity of the use of the broader word prescribed, as was well illustrated in the case first cited, where a number of exhibits were left out of the case, and yet it contained a certificate as to all the testimony being in. The usual form is that the case contains “ all of the evidence material to the question sought to be reviewed.” Bay lies on Hew Trials and Appeals, 573. In Davis Sewing Machine Co. v. Best, 50 Hun, at p. 79; 23 St. Rep., 877, it was said: “ Where a question of fact is sought to be reviewed it should be stated in the case that it contains all the evidence, or all bearing upon the question of fact sought to be reviewed.” The certificate under consideration substantially complies with this rule. The questions of fact before the court for review arise because of the refusals of the referee to find as requested by the defendant and the exceptions taken to such refusals, and the certificate conforms to what was said by Macomber, J., in Clark v.Swift, 14 N.Y. Supp., 61; 38 St. Rep., 129: “Under § 993, of the Code of Civil Procedure, it is the duty of the party where there is conflicting evidence to request a finding in accordance with the contention of the party, and in case of its refusal to find such request it would be the duty of the appellate court to look carefully into the evidence and to determine whether or not the conclusion reached by the referee was correct,”

“ Section 992 of the Code of Civil Procedure in terms precludes exceptions to findings of fact as such ; but § 993 declares a finding of fact whicli is without any evidence tending to sustain it, or a refusal to make any finding reasonably requested, to be a ruling upon a question of law, and subject to exception as such under § 992. From which it results that the only mode of reviewing a finding of fact of a court or referee as being against the weight of evidence is by means of a request to find and an exception to the refusal to find as requested.” Hugg v. Shank, 17 N. Y. Civ. Pro., 128; 23 St. Rep., 312.

But if there were no statement that all the evidence upon the question sought to be reviewed was contained in the case, it would still be open to the court to determine that there was no evidence to support any finding of fact duly excepted to. Davis Sewing M. Co. v. Best, supra ; Halpin v. Phenix Ins. Co., 118 N. Y., 172; 28 St. Rep., 788, where it was said: “A statement that all the evi■denes given on the trial is contained in the case is not essential to present for review in this court -a finding alleged to be without-■evidence to sustain it.” “ The appellant is therefore correct in his claim that the finding excepted to is properly before the court-for review, and we must assume that all the evidence introduced on -the trial -and bearing upon the fact of the occupancy has been -inserted in the ■case.’" ->

We therefore think we are bound to review the facts as presented by the case and to determine whether or not the referee’s - findings are in .accordance with them.

The complaint -sets up the -contract between the parties and the •order -of payment, and that every payment was conditional upon -a certificate of the-architect that the work had been done to his-satisfaction, -alleges that certain extra work had been done and that the -architect had certified that all of the work had been dónete his .satisfaction, and then sets out the balance due less certain payments ¡made by the defendant to certain material men. The -amended answer denies the value of the work, and also that the-certificates had been -obtained from the architect of that he had certified that the work had been done to his satisfaction, as required-by the contract, and on the other hand alleged that the-work was -defective in specified details and inferior in quality, and then attacks the validity of the certificates made by one-Smith, -an assistant of the architect, and not by the architect him- - self-or by his authority. A second defense is also setup which, it is not here necessary to notice.

The contract is very strong along the line that all of the work ■should be done to the satisfaction and under the direction of the = .architect and that his certificate should be essential to a payment, and it makes him the sole arbiter as to the regularity, propriety and value of the work, and consequéntly brings the case within Glacius v. Black, 50 N. Y., 145. Where a person is made the ■■ .sole and only arbiter of a contract, his decision is necessary be- ■ fore an action at law may he maintained. And the chief question in this case is as to whether or not the certificates signed “George • A. Freeman, Jr., by W. Holman Smith ” are such certificates as the contract called for, and whether or not supervision by the ■ architect and the production of certificates signed by him or by " his authority had been waived, and that of his assistant and cer- ■ tificates given by him were accepted in lieu. As before stated,. the contracts were strongly drawn so as to secure the super-vision - and certificates of the architect, yet respondent contends that all1 this was waived because the architect did bat little, if any, supervision of the work to appellant's knowledge, and that payments-• were made on the assistant’s certificates in the form above stated... But the payments that were made were to be made by the terms-of the contract when certain stages on the buildings were reached, . and these stand on a different footing from the subsequent payments which were only to be made when the buildings were completed to the satisfaction of the architect. It might well be that-the defendant was content to pay, and believed lie should make these payments when called for by the contract, and jmt in no- . sense waive his right to the final completion according to the terms of the contract. The later certificates were not paid be- ■ cause, as defendant then claimed, the work was not properly done, and also because the certificates were not proper or valid ones; -and he insisted by letters and telegrams that the architect, and not his assistant should act in the premises. As to these later certificates, the defendant promptly declined to receive or act on them, insisting on his right to the advice and judgment of the architect himself, thus asserting the well known principle delegatus ■non potest delegare.

The plaintiff himself testified that about the 15th or 16th of ^September, 1882, he took the certificates after those calling for "the first four payments and handed them to the defendant, who looked them over and handed them back, refusing to take them. The defendant said he would take advice, and subsequently the '.plaintiff and defendant had a consultation with their counsel. As the claim in this action is based on these subsequent certificates, the evidence that the assistant acted as superintendent under the •architect of the buildings isnot suffi cient, in our opinion, to warrant a finding of fact that the defendant acquiesced in or waived the final certificates of the architect himself. On the contrary, he promptly refused to pay the amounts called for by them. ‘There is no evidence of any ratification, consent or acquiescence on the part of the defendant in the acts of the architect’s assistant.

But again, there is a failure of any satisfactory proof that the architect in any way authorized the giving of the final certificates by his assistant. He himself testified : “ I did not know anything about the others (i. e., the later certificates) being given. I never in any instance authorized Mr. Smith to sign my name to those certificates. I can only state that I knew nothing about the final certificates being given. I knew before they were given that Smith had given out some of these certificates. I knew McEntyre had money as the work went on, but I never knew about the final certificates, and I never authorized Mr. Smith to sign any certificate for me ” ; and this he repeats emphatically. Hence there was an entire failure of compliance with a condition precedent to requiring payment, and we find no evidence which would lead us to the conclusion that the condition had been waived by the defendant. Certainly the payments made under the first four certificates under the circumstances do not warrant such a result. Even if defendant had full knowledge that these first certificates were given without the architect’s authority, this would not warrant such a conclusion. Mere payment under such-circumstances, even without the production of any certificate, would have been no waiver of defendant’s right to require subsequent certificates, which he certainly did. Barton v. Hermann, 11 Abb., N. S., 378; Haden v. Coleman, 42 Supr. Ct., 256.

We also think the objections to the work as done by plaintiff were well founded, and the demand for the certificates was not a mere pretext. The referee has found a considerable number of distinct variations, changes f-nd omissions from the designs, some of which it is true are not of much importance or of great-value, but others are more material, as for instance the style of ornamentation, etc. Eespondent contends that although the ornamentation in the way of panelling, railings and cornices was not as elaborate as required by the specifications, yet that is not a matter of substance, and that ornamentation is merely added to and not a part of the house, quite forgetting that any true or tasteful ornamentation must at least appear to be a part of the construction and not a mere addition. It is quite true such a. bouse might as well protect one from the elements as a more highly ornamented one, yet just in the ornamentation is a great part of the pleasure many cultivated people take in their dwellings, and one has a right to get what he bargains for and what-the party of the second part agrees to deliver, or there would be no force in contracts. As all these questions are fairly raised in the case, we think the judgment should be reversed and a new trial ordered, costs and disbursements of this appeal to the appellant to abide the event.

Bischoff and Pryor, JJ., concur.


text:
    Martin Reynolds et al., App’lts, v. Thomas Patten, Impl’d, Resp’t.

      (New York Common Pleas, General Term,

      Filed October 2, 1893.)

    Mechanic’s lien—Amount due—Application op payments.
    The owner of certain premises entered into contracts for work upon; three separate pieces of property, for one of which, being the job last completed, plaintiff furnished materials. After the work was completed the contractor presented a bill of $2,055, the balance due on all three contracts, and the owner paid $1,200 thereon, no application or appropriation of such payment being made by either of them to any particular portion of said balance. In an action to foreclose plaintiff’s lien for such materials, Held, that it would be presumed that they intended to extinguish the earlier rather.than the later debts, and that an amount was left due to the contractor upon the later one, which was properly applicable to-plaintiff’s lien.
    Appeal from a judgment of the general term of the city court of New York, affirming a judgment for the defendant respondent which was entered on a referee’s report.
    Action by material men against contractor and owner for the foreclosure of a lien claimed pursuant to the provisions of the-Mechanics’ Lien Law (Laws 1885, ch. 342) for the unpaid balance of the purchase price of certain materials sold to the contractor and alleged to have been used by him in making alterations under a contract with the owner.

      Edward W. S. Johnston, for app’lts; Robert E. Deyo, for resp’t.
   Bischoff, J.

Assuming, consistently with the referee’s finding, that defendant Fleming was not entitled to a charge of five dollars per day for his own services pursuant to the terms of his several contracts with defendant, Patten, it still appears from respondent’s own showing and admissions that the referee’s conclusion that at the time of the filing of plaintiffs’ notice of lien Patten had paid Fleming in full for the work done on the Eighty-sixth street houses, and that there was nothing owing from the former to the hitter, is contrary to the evidence. Hence, the judgment is erroneous and must be reversed.

It was conceded on the trial and is now conceded by respondent that, excepting the items for overcharges and improper charges hereinafter mentioned, Fleming’s bill of §2,055.89 correctlyre presented the balance of Patten’s indebtedness to him for the work done under the several contracts between them. On account of this balance Patten paid, and Fleming received §1,200, thus reducing it to $885.89. Patten claimed that the balance was excessive by $376.72, for overcharges for materials used and $85.65 for materials which were not used. Crediting Patten with each of these two last mentioned items, there still remained owing from him $393.52 which respondent’s counsel as well as the referee dissipate by deducting from the $2,055.89 balance two additional items admittedly included therein; namely $366.57 due Fleming for the Pleasure Bay job. Hence, they say there was nothing due Fleming from Patten on the Eighty-sixth street job when plaintiffs filed their notice claiming a lien on the last mentioned houses. That this method of disposing of plaintiff’s lien is unauthorized is apparent.

Plaintiffs were dealers in plumbers’ materials under the firm name of M. Reynolds & Co. and brought this action against Fleming, the contractor, and Patten, the owner, to foreclose a lien claimed by them under the provisions of the mechanic’s lien law (Laws 1885, chap. 342) upon three houses in East Eighty-sixth street in the city of New York, for an unpaid balance of the purchase price of certain plumbers’ materials which were sold and furnished to Fleming and alleged to have been used by the latter in rnakipg alterations and improvements in the Éighty-sixth street houses under a contract with Patten. The validity of the lien, therefore, was dependent upon the fact that when the notice of its claim was filed there was a sum owing from Patten to Fleming, and whether there was or not was substantially the only matter in dispute on the hearing before the referee.

The undisputed facts which transpired on the hearing, and are conceded by respondent, were that Fleming was employed by Patten upon three distinct and independent jobs, under several contracts, and calling for work at as many different places. The first was for work at Pleasure Bay, the next in Eighty-eighth street, and the last in Eighty-sixth street. Both the Pleasure Bay and the Eighty-eighth street jobs were completed before the Eighty-sixth street job, and, there being no evidence to the contrary, it must be assumed that Fleming was entitled to payment as soon as his contracts were performed. After all three jobs were completed Fleming presented his bill showing an aggregate balance amounting to $2,055.89 due him therefor from Patten. This, as hereinbefore stated, is conceded to have correctly represented Patten’s entire indebtedness at the time for the balance remaining unpaid upon the three jobs, except as to $376.72 for overcharges and $85.65 for improper charges, both of which refer exclusively to the Eighty-sixty street job. The aggregate balance included a balance amounting to $366.57 for the Pleasure Bay job, and another of $364.94 for the Eighty-eighth street job, neither of which two last mentioned balances was at any time disputed.

The remainder of the aggregate balance was for the work done upon the Eighty-sixth street houses upon which plaintiffs claimed their lien. On account of the aggregate balance of $2,055.89 Patten paid $1,200, more than enough to discharge his indebtedness for both the Pleasure Bay and Eighty-eighth street jobs, but it nowhere appears that either Patten or Fleming applied or appropriated the payment to any particular portion of the aggregate balance. The legal presumption therefore is that both debtor and creditor intended to extinguish the earlier rather than the later debts. Clayton’s case, 1 Meriv., 608, Allen v. Culver, 3 Denio, 284, 290; Thompson et al. v. St. Nicholas Bank, 113 N. Y., 325, 333 ; 22 St. Rep., 929; Lawson’s Eights, Rem. & Pr., Vol. 5, p. 4211, | 2548, “Appropriation of Payments; ’’ 21 Central Law Journal 473 ; Am. and Eng. Ency. of Law Vol. 18, p. 247, etc., and cases there collated.

Assuming next, as we must under the rule stated, that the undisputed balances for the Pleasure Bay and Eighty-eighth street jobs, which were the earlier debts, were extinguished, at the time of the $1,200 payment, the proper statement of the account between Patten and Fleming as it appeared on the hearing before the referee would be as follows:

Thomas Patten to James J. Fleming, Dr. To Balance as per bill rendered................. $2,055 89

Cr. by excessive charges............... $376 72

Cr. by improper charges............... 85 65

Cr. by payment for Pleasure Bay job____ 366 57

Cr. by payment for Eighty-eighth street job............................... 364 94

Cr. by balance of $1,200 payment....... 468 49

--$1,662 37

Leaving a balance owing on the Eighty-sixth street job of ..................................... $393 52

which is properly applicable towards the payment of Fleming’s indebtedness to plaintiffs and for which amount the latter are entitled to a lien.

Judgment of special and general term of the court below reversed, reference discharged, and new trial ordered, with costs of this appeal to appellants to abide the event.

Bookstaver and Pryor, JJ., concur.


text:
    Maicho Fortunato, Pl’ff, v. Thomas Patten, App’lt., Imp’ld with The Twelfth Ward Bank of the City of New York, Resp’t.

      (New York Common Pleas, General Term,

      Filed October 2, 1893.).

    Contract—New York City—Assignability—Lien.
    A contract made with the city of New York provided that the contractor should not assign any of the moneys payable to him without the previous written consent of the commissioner of public works indorsed thereon, and that no right under the contract should be asserted by any assignee of the contractor whose assignment was not authorized by the •commissioner. The contractor executed an assignment of his rights and interest under the contract to defendant Patten without such consent. Subsequently he assigned all moneys due or to become due thereon to the defendant bank as security for moneys advanced and to be advanced, which was consented to by the commissioner, and thereafter, with such consent assigned his rights and interests under the contract to Patten. Held,, that, under the provision of the contract, the first valid assignment was the one to the bank, and that it was entitled to priority in payment without notice to Patten.
    Appeal by one defendant from so much of the judgment of •a referee as adjudges the claim of a co-defendant to be entitled to priority in payment. Action to have certain liens and claims •against moneys which had accrued to the contractor under a contract with the city of New York for regulating a street, and •their order of priority, determined.

      Robert E. Deyo, for app’lt; John R. Abney, for resp’t.
   Bischoff, J.

We are asked on this appeal to determine whether upon the facts found the referee was justified in his conclusion that the claim of the defendant, The Twelfth Ward Bank, is entitled to priority in the order of payment over that of defendant Patten. The question is of gravity to the litigants since it is apparent that the fund out of which the payments must be paid is inadequate to pay both claims in full.

On October 8, 1886, the defendant, John F. Dawson, entered into a contract with the mayor, aldermen and commonalty of the ■city of New York, whereby, in and for the consideration of the payments to be made to him as therein provided, he undertook to regulate and grade a certain street known as Edgecomb avenue. Dawson, among other things, covenanted that the city should be privileged to retain out of the moneys agreed to be paid him sufficient to meet any liens which might be claimed for labor and materials pursuant to the provisions of chapter 315, Laws 1878, entitled “ An act to secure the payment of laborers, mechanics, merchants, traders and persons furnishing materials towards the performance of any public work in the cities of the state of New York,” as well as to reimburse itself for any damages which should accrue to it from the contractor’s negligence; that he would not assign any of the moneys payable to him except with the previous written consent of the commissioner of public works, to be indorsed on the contract, and that no right under the contract, nor to any of the moneys payable by reason of its provisions, should be asserted by any assignee of the contractor whose assignment was not authorized by the commissioner in the manner above stated. Subsequent to the several assignments hereinafter mentioned the work required of Dawson was completely performed hy him and accepted, by the city, and at the time of the trial of this action there was due the former from the latter §57,179.55.

On April 11, 1887, Dawson by an instrument in writing assigned all his rights and interests under the contract to defendant. Patten as collateral security for the payment of an indebtedness of $5,000 and interest. This assignment was, however, without the-approval of the commissioner of public works. On March 1, 1889, Dawson, to pay the same indebtedness, executed and delivered a further assignment to Patten of $5,000 and interest, thereon from the time specified “ out of the first moneys due or to grow due in and by virtue of the contract ” with the city hereinbefore mentioned. The assignment last referred to was approved by the commissioner of public works, and filed with the comptroller of the city of New York March 5, 1889. On March 13, 1889, Patten, in writing, consented to payments to Dawson of all moneys-except thirty per cent, thereof which the city had reserved to await the completion of the contract.

On December 13, 1887, after Dawson’s first, but before his second, assignment to Patten, the former in writing further assigned to the defendant, The Twelfth Ward Bank, “ all moneys due or to grow due in and by virtue of ” his contract with the city as security for moneys advanced and to be advanced to him by the bank, thereby also appointing the bank his attorney to collect the moneys assigned. This assignment was approved by the commissioner and filed with the comptroller on the day of its date.

Dawson’s- aggregate indebtedness to the bank at the time of the commencement of this action was $29,453.35, exclusive of interest, of which only $18,889.10 had accrued on March 5, 1889, the time of Dawson’s second assignment to Patten and its approval by the commissioner and filing with the comptroller. At the time of its several advances or loans to Dawson the bank was ignorant of any assignment to Patten, and it does not appear that the latter at any timfe caused notice of either of the assignments to him to be given to the bank.

No question arises concerning the accuracy of the amounts or the justice of the respective claims of Patten and the bank against Dawson, and upon the facts narrated the referee adjudged the bank to be entitled to preference in the order of payment as-against Patten out of the balance due Dawson from the city and remaining after the payment of certain liens, the priority of which was not disputed.

It is the settled law of this state, as appellant’s counsel contends, and whatever the rule may be in other jurisdictions, that-notice to the debtor or custodian of an assignment of a chose in action or fund is not essential to the validity of the assignment, and that as between successive assignees of the same chose in action or fund the order of priority in payment must be determined by the order of time in whicli the several assignments were made, Muir v. Schenck, 3 Hill, 228; Bush v. Lathrop, 22 N. Y., 535 ; Williams v. Ingersoll, 89 id., 508; Fairbanks v. Sargent, 104 id., 108; 5 St. Rep., 531; 117 N. Y., 320 ; 27 St. Rep., 411; Beach on Mod. Eq. Jur., §§ 343, 344; but we are notwithstanding of the opinion that respondent’s claim to priority in payment as-against appellant is clear and incontrovertible. Being immediately concerned, and interested in the performance of the contract on Dawson’s part, it was competent to the city to exact restrictions upon the assignability of the former's rights under the contract pending performance and before his right to demand payment of the moneys agreed to be paid had become absolute.

The restrictions contravened no rule of law or of public policy. Greenhood on Public Policy, 500. Hence the law governing the contract is in accord with its provisions. Modus et conveniio vincuni legem. Broom’s Legal Maxims, 689. The assignability of Dawson’s rights must be measured, therefore, by the terms of the contract out of which those rights are alleged to Dave accrued, Kneettle v. Newcomb, 22 N. Y., 249, 252; 13 Pick., 491; 59 Penn., 389 ; 48 Ark., 467, and an assignment made in violation of a covenant not-to assign, when the latter is not inoperative because contrary to-la w or public policy, is ineffectual as well in law as in equity. Zabriskie, Chancellor, in Grigg v. Landis, 4 C. E. Green, New Jersey, 350. Dawson’s right to assign was a qualified one, to be operative only with the previous written consent indorsed by the commissioner of public works on the contract. His assignment to Patten on April 11, 1887, without such approval, therefore, never took effect, at least not until his right to the moneys payable under the contract with the city became absolute by performance of the contract on his part. Before ■ that time Dawson assigned the moneys yet to accrue to the Twelfth Ward Bank by an instrument effectual for that purpose according to the requirements of the contract. The assignment to the bank, therefore, was the first and prior to any assignment to Patten, and under the rule hereinbefore stated entitled the bank to priority in payment without notice to Patten.

Hor can that portion of the bank’s claim against Dawson which represents the advances made to him subsequent to the 'latter’s-assignment of March 1, 1889, to Patten be subjected to the priority of Patten’s claim in the absence of actual notice on the bank’s part of the fact of the assignment to Patten when it made the advances. Ackerman v. Hunsicker et al., 85 N. Y., 43.

The judgment should be affirmed, with costs.

Pryor, J.

It was perfectly competent to Dawson and the city to restrict the assignability of any claim of the former against the latter arising under their contract; and then modus et conventio vincuni legem. Broom’s Maxims, 689. By their contract it was expressly stipulated that Dawson could assign no-claim thereunder without the express authorization of the commissioner of public works. Dawson’s right, therefore, under the contract was not absolute, but was qualified and limited by the restriction in his agreement. Without consent of the commissioner of public works he had no assignable right; and that consent he did not obtain until March 1. 1889. But meanwhile, namely, 13th December, 1887, with the consent of the commissioner, Dawson duly and effectually assigned to the respondent all the money due or to grow due under or by virtue of said contract,

An assignee succeeds only to the right of his assignor.

I am of the opinion that the respondent’s claim to the fund in dispute is clear and incontrovertible.

Judgment affirmed, with cosfs.


author: Daly, Ch. J.

text:
    The People, Pl’ffs, v. Jacob Samuels et al., Def’ts.

      (New York Common Pleas, General Term,

      Filed October 9, 1893.)

    Bail—Recognizance—Forfeiture.
    Where the principal after default in appearing for examination is indicted" and afterwards discharged together with his hail in the indictment, the recognizance for his original examination should not be enforced.
    Motion to vacate and discharge a judgment entered on a"forfeited recognizance.

      Delancy Nicoll, for the People; M. B. & A. M. Maclay, for petitioner.
   Daly, Ch. J.

I think that the application should be granted. This was a surety for the appearance of a prisoner during examination. After default, the prisoner was indicted by the grand jury and afterwards discharged together with his bail in the indictment. It would seem unnecessary therefore to enforce the recognizance for his original examination.

Bischoff and Pryor, JJ., concur.


author: Earl, J.

text:
    Fritz Huerzeler, Adm’r, Resp’t, v. The Central Cross Town Railroad Co., App’lt.

      (Court of Appeals,

      Filed October 24, 1893.)

    1. Railroad—Street—Negligence.
    It is not negligence as matter of law for a mother of a child five years old to permit her to he in the street.
    3. Same.
    Where there is no negligence on the part of the mother, mere negligence on the part of such a child does not shield a railroad from liability, its negligence having heen established.
    Appeal from judgment of the Hew York common pleas, general term, affirming judgment for plaintiff rendered on verdict

      J. Aspinwall Hodge, for app’lt; Henry Schmitt, for resp’t.

       Affirming 48 St. Rep., 649.

   Earl, J.

This action was brought to recover damages for the death of the plaintiff’s infant daughter caused, upon the defendant’s railway track, in the city of Hew York, through the negligence of the driver o£ the horses attached to one of its cars. At the close of the evidence the trial judge charged the jury, and there were many requests by both sides to charge, some of which were granted and some refused. After the charge was finished and the jury had retired, the counsel for the defendant excepted as follows : “ To the granting of the requests on the other side, and a refusal to charge those of mine that were not charged and there was no other exception to the charge or refusal to charge.

It is conceded by the learned counsel for the defendant that this general exception was wholly insufficient to present any question for review in this court; and so we have uniformly held. Smedis v. Brooklyn, etc., R. R. Co., 88 N. Y., 13; Newall v. Bartlett, 114 id., 399 ; 23 St. Rep., 732; Read v. Nichols, 118 N. Y., 224; 28 St. Rep., 867.

It is, therefore, not important to criticise the charge or to determine whether the trial judge committed any error therein. The case is before us precisely as if the whole charge had been omitted therefrom. The main exception, therefore, which presents any= question of law to us is the one taken to the denial of the defendant’s motion to dismiss the complaint on the ground that there was no negligence chargeable to the defendant, and that there was no proof of the absence of contributory negligence. We have read the evidence and are satisfied there was sufficient bearing upon the negligence chargeable to the defendant for submission to the jury. That fact being established, the defendant could defeat the plaintiff only by showing, the child being non sui juris, that her mother was negligent in permitting her to be in the street, and that fact being established, also that there was such conduct on the part of the child contributing to the accident as would have defeated an action by her if she had been an adult. It was not negligence as matter of law for the mother of this child to permit her to be in the street, and so we have several times held. McGarry v. Loomis, 63 N. Y., 104; Kunz v. City of Troy, 104 id., 344; 5 St. Rep., 642 ; Birkett v. Knickerbocker Ice Co., 110 N. Y., 504; 18 St. Rep., 130.

We will not repeat the evidence bearing upon the question of the mother’s negligence. We will simply say that upon that evidence it was a question of fact for the jury to determine whether the mother was negligent in permitting this child to' be in the street for a few minutes under the circumstances disclosed. That question having been determined in favor of the plaintiff, if there was any mere negligence on the part of the child contributing to the accident, that does not shield the defendant from liability, its negligence having been established.

The question of damages is not before us. There was sufficient evidence in the case upon the question of damages for the jury. Houghkirk v. Del. & Hud. Canal Co., 92 N. Y., 219.

The exceptions to rulings upon questions of evidence point out no error, and need no particular attention.

The judgment should be affirmed, with costs.

All concur.