text:
    Emma A. Reed, Resp’t, v. The Photo-Gravure Co., App’lt.

      (City Court of New York, General Term,

      Filed March 27, 1891.)

    Bills and notes — Irregular endorsement before delivery to PAYEE.
    In the absence of proof that the endorsement was made to enable the maker of a note to procure credit with the payee, one who endorses a note before it is delivered to the payee is only liable as second endorser.
    Appeal from judgment in favor of plaintiff payee, against defendant endorser.

      Henry Wehle, for app’lt; Bollin M. Morgan, for resp’t.
   Van Wyck, J.

On March 6, 1889, in an action by Emma A. Reed against A. J. Bishop, one P. I. Clarkin was the attorney of record for plaintiff Reed. Upon the trial of the case now under-consideration the plaintiff was, against objection and exception from the defendant the Photo-Gravure Company, allowed to prove by Clarkin, her attorney m the suit against Bishop, .that the time within which Bishop could answer was extended until May 9, 1889, upon receiving from him his promissory note endorsed by Photo-Gravure Company and with the further understanding with Bishop alone that if the note was paid at maturity (May 8, 1889), that that action was to be marked discontinued and settled.

The following is a copy of the note:

“ $80. N. Y. City, Mar. 6th, 1889.
“ Sixty days after date I promise to pay to the order of P. L Clarkin, Attorney, Eighty Dollars at No. 26 University Place. “Valuereceived. A J. Bishop.”
And was endorsed as follows:
“ The Photo Gravure Company,
“ Ernest Edwards, Treas.”
“P. I. Clarkin, Attorney.”
“ Pay to the order of Emma A. Reed.
“P. I. Clarkin, Attorney.”

In view of the fact that P. I. Clarkin was the attorney of record for Emma A. Reed in her action against Bishop, this note must be read just as if it had been drawn to the order of Emma A. Reed. The case at bar against Photo-Gravure Company seems to have been tried below, as shown by the record, and argued upon this appeal, as evidenced by the points of both counsel, upon the theory as to whether or not Ernest Edwards,- treasurer, had authority, either express or implied, to make the endorsement for the defendant company, whether or not such act of endorsement was ultra vires, and whether the doctrine of estoppel was to prevail against defendant. However, it seems proper that this appeal should be disposed of without giving serious consideration to these respective contentions of plaintiff and defendant, for in this case there is not the slightest evidence to show that the Photo-Gravure Company, its officers, employes or attorneys, had any knowledge whatever of the transactions between Bishop, the maker, and Emma A. Reed, the payee of the note, which,' for reasons given above, must be read as if drawn to her instead of to Clarkin, her attorney.

The Photo-Gravure Company’S knowledge that Bishop, the maker, intended to obtain credit with Reed, the payee, is not to be inferred from the fact that the company endorsed the note in blank before it was delivered to or endorsed by the payee, for the presumption of law, from the instrument itself, is that one who has endorsed a promissory note before its delivery to the payee intended to become liable simply as a second endorser. Of course this presumption can be rebutted by parol proof that such endorsement was made to give the maker credit with the payee, but no such proof has been made in this case.

This rule of law is laid down in Bacon v. Burnham, 87 N. Y., 614, and Hull v. Marvin, 2 Sup. Ct., 420, affirmed in 59 N. Y., 652, and most aptly stated by the late Chief Justice Church in Coulter v. Richmond, 59 N. Y., 481, as follows:

“ In this state it has been repeatedly held, and is too strongly settled by authority to be disturbed, that a person making such an endorsement is presumed to have intended to become liable as second endorser, and that on the face of the paper, without explanation, he is to be regarded as second endorser, and, of course, not liable upon the note to the payee, who is supposed to be the first endorser."

Nothing more need be said to justify the reversal of this judgment and the granting of a new trial, with costs to appellant to abide the event.

Ehrlich, Ch. J., and McGown, J., concur.


source: Caselaw Access Project

author: Learned, P. J.

license: Public Domain

text:
    David Addis et al., Resp’ts, v. Cornelius L. Addis, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 21, 1891.)

    Insurance (fire)—Life tenant and remaindermen.
    The defendant was tenant by the curtesy of a house and lot to which the plaintiffs, his children, were entitled in remainder. The defendant had built the house himself and had insured the premises as being sole owner. A loss occurred; the insurance company paid it, but on learning the condition of the title brought suit to recover the amount. Held, that as tenant for life the defendant was not bound to rebuild nor to insure the premises for the benefit of the remaindermen and that they had no claim upon the moneys paid under the policy.
    Appeal from a judgment in favor of the plaintiffs, entered upon a trial before the court without a jury.
    The defendant Addis was in 1887, and is now tenant by the curtesy and tenant in common with his children, the plaintiffs (his interest being one-eighth), of a farm in Eochester, Ulster county, Uew York. The dwelling house upon the farm was destroyed by fire, without the fault of the defendant, as found by the court, and having insured it, he collected the policy. The insurance was in his own name and he paid the premiums out of his own money. It being afterwards discovered that there was a breach of the policy, through the defendant’s misrepresentation, the insurance company sued him to recover back the amount paid on the policy ; he drew a cheque on the defendant bank, in which he had deposited the insurance money, in favor of the insurance company, for the amount. Payment of this cheque was prevented by the injunction issued in this action, which is brought upon the theory that the plaintiffs, as reversioners of the farm, are owners of the insurance, the plaintiffs asking judgment that the defendant Addis is interested only in the income of the fund, and that on the termination of his life estate, the principal of it be paid over to the plaintiffs.

      R. F. Wilkinson, for app’lt; J. Newton Fiero, for resp’ts.
   Learned, P. J.

The plaintiffs and defendant are co-tenants in remainder of a house and lot, of which the defendant is also tenant for life by the curtesy. The defendant insured the house in his own name. It was burned down and ho received the insurance money. The plaintiffs now claim a portion of the money. It was adjudged that one-eighth be paid to defendant; that the residue be invested by the county treasurer for defendant’s life; that after his death that residue be distributed among the plaintiffs.

In the defendant’s application for insurance he described the house as “his dwelling house.” In the proofs of loss he stated that the property belonged to him and that no one else had any interest in it

The house was worth about $1,000. The defendant built it himself and paid for it and got the lumber from his father’s lot. The defendant’s wife, who owned the land, died in 1866. The insurance was for $800, which amount was paid to him.

The insurance company demanded back the money and commenced a suit to recover it

It would seem by the evidence that, through the incorrect statements of the defendant (whether intentional or unintentional) the policy was invalid,, and that the company, if it had chosen, need not have paid. But we do not see that this circumstance gives the plaintiffs any rights. Indeed, if the payment was voluntary on the part of the company, it is difficult to understand how the plaintiffs can have any interest therein.- According to the evidence, the defendant had no valid claim against the company. If he had no claim against the company, certainly the plaintiffs had none. And if they had no claim against the company, we do not see what right they have to the money which the company voluntarily paid to the defendant

It has been held that a tenant in possession of a life estate, who has bought an equitable estate of one of the remaindermen, could not purchase for his own benefit on a sale under a municipal assessment. Being in possession, he could not buy up an adverse title and oust his co-tenant Burhans v. Van Zandt, 7 N. Y, 523. But that is a principle not in the least applicable to insurance. The owner may insure his interest in the property, and may do this for his own benefit He is under no obligation to protect other owners against loss by fire. If he should insure their interests without express authority from them, he could not collect from them any part of the premium. The case of Wyman v. Wyman, 26 N. Y., 258, only decided that where the insured died and subsequently a loss occurred and the money had been paid by the company, the widow should have her dower therefrom, then the debts of the deceased should be paid and the residue, if any, should go to the heirs. That merely decided a question of distribution among persons,all claiming to succeed to the rights of the insured. It was substantially a question of marshaling the assets of a deceased person. But these plaintiffs claim adversely to the insured; not under him.

The case of Peck v. Sherwood, 56 N. Y., 615, does not support the plaintiffs’ claim. The remainderman, who was the executor, appears, according to the opinion, to have made or concurred in an insurance with the tenant for life The only matter decided was that the remainderman should be allowed in his account for a proportional part of the premium.

Now, without an express covenant, the tenant for life is not liable to rebuild a house destroyed by fire without his fault. He is in no sense a trustee for the remainderman. If not bound to rebuild, he certainly is not hound to insure for the benefit of the remainderman.

Both the tenant for life and the remainderman have insurable interests and each can insure for himself. Perry on Trusts, §§ 487, 553. If this defendant had neglected to insure, and the plaintiffs on the contrary had insured, he would have had no claim against them for the money or for any part of it The fact that he was in possession does not change the rights. Harvey v. Cherry, 12 Hun, 354; S. C., 76 N. Y, 441, and cases there cited. See 1 Phillips on Ins. (3d Ed.), § 349.

We do not see any ground upon which the plaintiffs have any claim whatever to this money.

The judgment should be reversed and a new trial granted, costs to abide the event, and the injunction against the bank dissolved.

Landon and Mayham, JJ., concur.


author: Mayham, J.

text:
    Mary McC. Hastings, Resp’t, v. John Claflin et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed May 21, 1891.)

    1. Debtor'and creditor—Preferences.
    A debtor has the right to prefer one creditor over another even though the effect be to prevent the other from collecting his debt.
    2. Indemnity—Liability of indemnitors.
    Indemnifying a sheriff to induce him to sell property upon execution is a sufficient participation in the act, if illegal, to make, the parties giving the bond liable to the party injured thereby.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the judge.
    The action was for trespass in wrongfully taking personal property. The defense sets up title in a judgment debtor of the defendant, and justified the seizure under an execution on the judgment and alleges that the transfers through which the plaintiff claims are fraudulent

      Michael A. Quinlan, for app’lts; S. W. Jackson, for resp’t.
   Mayham, J.

The plaintiff, at the time of the taking of the property, was in possession and claimed title to the same, derived by her through transfers as follows: On the 2d of April, 1889, Mary Linn, plaintiff’s mother, recovered a judgmént against James Hastings, plaintiff’s husband, for the sum of $1,755.87, which, on the 2d of April, 1889, was assigned by Mary Linn to the plaintiff, who, on the 11th of April, 1889, assigned the same to B. C. Van Zant, he being at that time the creditor of James Hastings for the amount of a $200' note held by Van Zant against Hastings. On the sane day James Hastings, to secure the amount of such indebtedness by judgment and note, executed to Van Zant a chattel mortgage on the property in question, which, on the 12th day of April, 1889, was duly filed in the proper town clerk’s office. On the 11th of September, 1889, Van Zant foreclosed this mortgage and sold the property and executed and delivered to the plaintiff a bill of sale of the same, who was the purchaser on such public sale, and on such sale the plaintiff took possession of the property and retained the same until taken by the sneriff by the directions of the defendants.

The evidence tends to show that the judgment recovered by Mary Linn against James Hastings was for money loaned by Linn to Hastings in May, 1877, and as it was assigned to Van Zant it became a demand in his 1 ands which, together with the indebtedness of Hastings to him on the note, constituted the consideration for the mortgage, and made that a valid instrument in his hands against James Hastings, and the property covered by it, under which he could as against Hastings seize and soil the property and the title acquired under that sale would be valid as against him, and also as against his creditors, unless the same was fraudulent and the various transfers were made without consider - ation, and with the fraudulent intent and purpose of hindering, delaying or defrauding the creditors of James Hastings. There was evidence offered on the trial tending to show that Mary Linn was the executrix of her deceased husband and the mother of the plaintiff.

That as such executrix she received into her own hands about $20,000 of the estate of her testator for distribution. By the residuary clause in the will the plaintiff was entitled to an equal share of the property devised for distribution with the other children of the testator, and that without paying the plaintiff her distributive share, the executrix squandered the bulk of the estate, and in part payment or indemnity for her share, her mother,-, the executrix, assigned to her the judgment obtained against her husband, James Hastings, which was for money loaned to him out of the funds held by the executrix belonging to the estate.

In consideration of the assignment of this judgment to her, the plaintiff released her mother, the exectitrix, from all claims against her as executrix or against the estate she represented.

On the 10th day of June, 1889, the defendants recovered a judgment against James Hastings, impleaded with Charles F. Linn and Mary Linn, for $1,049.35, the roll whereof was on that day filed in the office of the clerk of the city and county of New York, a transcript of which was duly filed and the judgment docketed in the office of the clerk of the county of Albany on the 6th day of August, 1889, on which an execution was on the 27th day of March, 1890, issued to the sheriff of the county of Albany, where the property in controversy was, under and by virtue of which the sheriff of Albany county levied upon such property, which he afterwards advertised, and on the 9th day of April, 1890, sold to satisfy the execution.

We think the facts in this case establish the legal title to the property in the plaintiff unless the transfers through which it was acquired were fraudulent and void as to creditors of James Hastings, and that the determination of the question of fraud from the evidence was one for the jury, and unless their determination was unsupported by the evidence, or was clearly against the’ weight of evidence, then the trial judge was right in refusing to set aside the verdict and grant a new trial upon the minutes. It is true that if the uncontradicted evidence had established a fraudulent transfer in law, so that by the undisputed facts the transfers through which the plaintiff acquired her title were fraudulent in law, then the court should have declared it void, as that would amount to a complete legal defense which the jury would not be at liberty to disregard, Algeo v. Duncan, 39 N. Y., 313,. but that is not this case.

The most that could be claimed for the evidence is that the jury might have so construed it as to raise an inference of fraud, and the jury having found for the plaintiff, that presumption is negatived. While it is the plain duty of the court, where the verdict is palpably against the law, applied to. the facts found, McDonald v. Walter, 40 N Y., 553, to set aside a verdict, the converse of the proposition is equally true that it is the plain duty of the court not to interfere where the law, when applied to the facts found, is in support of the verdict.

It is not denied that the court has the power where the verdict is against the weight of evidence, and in the judgment of the court justice requires that the case should be submitted to another jury, to set aside the verdict, Dickson v. Railroad, 47 N. Y., 509, but as it is peculiarly the province of the jury to consider and determine questions of fraud and intent, the court should not, without clear and controlling reasons, interfere with their verdict in that class of cases. The question of the existence of an intent to hinder, delay or defraud creditors, in making a sale or transfer of property, is a question of fact for the jury. 2 R. S., 137, § 4; Knapp v. Smith, 27 N. Y., 280; Kavanagh and Barron v. Beckwith, 44 Barb., 192.

The fact that James Hastings gave the mortgage in question to pay or secure Van Zant, while it may be considered by tibe jury upon the question of fraudulent intent, is not in itself evidence from which the jury or court are compelled to find fraud.

A debtor has the right to prefer one creditor over another, even though the effect be to prevent the other from collecting his debt Jewett v. Noteware, 30 Hun, 194; Billings v. Billings, 31 id., 68; Swift v. Hart, 35 id., 130. The fact that the defendants gave the sheriff a bond of indemnity to sell this property is a sufficient participation in the act, if a wrong, to make them parties to it, and answerable for the consequence in an action by the party injured. Giving a bond of indemnity to induce the officer to seize particular property on execution makes the party executing such bond a trespasser if the seizing be illegal. Davis v. Newkirk et al., 5 Denio, 92. Ror does the statement by the officer that he sold the right, title and interest of James Hastings relieve them from liability to the real owner if the property did not belong to him. The execution assumed to deal with the property and under it the property was sold, and passed into the hands of the purchaser. That was such an interference with it as to make the defendants liable to the plaintiff if the property belonged to her. It was not error, therefore, for the court to refuse to charge as requested by the defendant upon that subject We have examined all the exceptions taken by the learned counsel for the defendants to the rulings and decisions of the learned judge at the trial, and find no errors for which this judgment should be reversed.

Judgment affirmed, with costs.

Learned, P. J., concurs; Landon, J., not acting.


text:
    Peter Beaudin, App’lt, v. The Central Vermont R. R. Co., Resp't.

      (Supreme Court, General Term, Third Department,

      Filed May 21, 1891.)

    Negligence—Master and servant—Duty of master.
    A platform car belonging to a railroad was constructed with side sills, which projected at each end beyond the body of the car about four or five inches. When two such cars were coupled, the ordinary space by which bumpers separate cars being two feet, these two projections were within fourteen inches of each other. The same road which owned this car had several hundred similar ones in use. The plaintiff,, who was endeavoring to couple two cars in the day-time, was struck by one of these projections, and injured. The car was not out of repair. Held, that he could not recover; such a method of construction cannot be said to constitute negligence upon the part of the corporation.
    This is an appeal from a judgment entered upon the order of the judge of Eranklin county circuit, dismissing the complaint of the plaintiff at the trial, and also from an order denying a motion for a new trial upon the judge’s minutes. The action was for injury sustained by the plaintiff while engaged in the service of the defendant as brakeman on a freight train of defendant’s cars.
    The case discloses that the plaintiff had been in the defendant’s employ as brakeman about eight or nine months before the injury, and that a part of his duties required him to man the brakes and couple the cars on trains run on defendant’s railroad.
    At the time of the accident the plaintiff was engaged with an engineer and conductor in making up an extra freight train, composed of freight cars belonging to the defendant, and also to other railroads, the cars of which ran over the defendant’s line. Among the cars composing this extra freight train were six platform cars of the Delaware & Hudson Railroad Company.
    These cars were constructed with side sills on either side running lengthwise of the cars, and extending about four inches beyond the body of the car at each end, which sills were about four inches in width at the end. When these cars were coupled, the dead wood (so called) kept the bodies of the cars about two feet apart, and that brought the opposite ends of these sills about twelve or fourteen inches from each other.
    To couple these cars the brakeman passed between the ends of the same in the two feet space in adjusting the link and pin. At the time of the injury the Delaware & Hudson Company had five or six hundred platform cars of this description in actual use on its roads and connecting lines, and the proof shows that cars of this-build were in use on other roads, and that the cars in question by which the injury was produced were in good repair, and had been inspected by the defendant’s car inspector before they were attempted to be connected with the defendant’s trains on the day of' the plaintiff’s injury.
    The proof shows that these cars were inhabitual use on the defendant’s road, and that the plaintiff was in the habit of helping to make up these extra trains, and that that was a part of his business.
    Previous to the accident on the morning of the injury, the plaintiff had coupled one of these cars to the engine, and had a fair opportunity to see these projecting sills. At the time of the injury the plaintiff stepped between two. of these cars, to effect the coupling, placing one hand on the projecting sill with the arm in line with the same, and while attempting with the other hand to insert the link and pin, his elbow was struck by the end of the projecting sill of the other car, and his arm was broken.

      At the conclusion of the testimony, the trial judge on motion of the defendant dismissed the complaint, and the plaintiff duly -excepted and appeals from the judgment of non-suit and order denying a new trial.

      Kellas & Munsell (J. P. Pellas, of counsel), for app’lt; Louis Hasbrouck, for resp’t.
   Mayham, J.

We think the rulings of the learned judge were correct. Before the plaintiff could recover in this case it was incumbent on him to prove some negligent act or omission by the defendant from which the jury could legally find the defendant guilty of negligence.

This, we think, he failed to do. Construing the circumstances proved by the plaintiff in the most favorable light, in support of his contention, as we must on an application to set aside a non-suit, Sherry v. N. Y. C. & H. R. R. R. Co., 104 N. Y., 652; 5 N. Y. State Rep., 574, we fail to see any evidence from which the jury could legally find the defendant guilty of negligence for which a verdict in favor of the plaintiff could be upheld.

The cars which the plaintiff was asked to couple were those in -common and general use, and such as were approved by skilled mechanics and railroad men. This was all that could be required of the defendant. It owed the duty to its employes to furnish reasonably safe and suitable machinery and appliances for the performance of its work.

It was not required to furnish the very best that the nature of the employment was capable of, but simply to furnish such as was reasonably safe and suitable, and this duty is performed on the part of the employer by the exercise of reasonable care and prudence. Burke v. Witherbee, 98 N. Y., 562; Arnold v. D. & H. C. Co., 6 N. Y. State Rep., 369.

The undisputed evidence is that this build of cars was in general use and that no similar accident had happened, and that the cars in question had been examined by an examiner of the defendant and no defects existed in them unless the peculiar construction of all cars of that build rendered them defective. The law does not go to the length of holding employers liable for accidents to their servants under such circumstances. On the contrary, when the servant is furnished reasonably safe and usual appliances for the performance of the work he assumes the risk of the employment.

The structure and condition of these cars were equally open and accessible to the plaintiff and defendant, and each had an equal opportunity to know the protuberance of the sills beyond the body of the cars.

If that extension was dangerous the employe and employer were alike in a position to have discovered and avoided accident in its use. The coupling was done and the accident happened in daylight, and the ends of these sills were in plain view of the plaintiff at the time of the injury. It was his misfortune he did not at the time observe the danger until it was too late, but there is no principle of law requiring that misfortune to be visited upon the defendant in the absence of proof of culpable neglect on its part. If we are right in holding that the evidence fails to charge the defendant with negligence, then whatever may be said about the propriety of submitting the question of contributory negligence of the plaintiff as a question of fact for the jury, that question cannot arise. It is true that the plaintiff holds the affirmative, both upon the question of defendant’s negligence and the plaintiff’s freedom from contributory negligence; but if he fail to establish the defendant’s negligence, no matter how free he may be from negligence himself, he cannot recover.

It is urged on the part of the plaintiff that the court erred in receiving the conductor’s report, in writing, of the cars which constituted the train by which plaintiff was injured. Before the report was read it was verified by the evidence of the conductor, who testifies that it was made at the time on the same day when he went out with the train and contained the numbers of the cars, but he could not remember the numbers when he was sworn without looking at the report. If evidence of the. numbers of the cars in the train was material, and for the purpose of identifying the cars in question it probably was, then I do not see how this method of proof was not competent. The rule is now well settled that a witness who made a memorandum at the time of the occurrence and made it correctly may testify from the same although he has no recollection of the facts contained in such memorandum. That is substantially what was done in this case.

We see no error for which the judgment and order in this action should be reversed.

Judgment and order affirmed, with costs.

Learned, P. J., and Landon, J., concur.


text:
    Morris, Tasker & Co., Resp’t, v. Lee Chamberlin, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 21, 1891.)

    Pleading—Counterclaim must be described as such to require reply.
    An answer set up facts arising out of the contract or transaction set forth in the complaint which if described as a counterclaim would have been sufficient to constitute one. These facts, however, were only-stated in the answer as matters of defence. Held, that no reply was-necessary.
    Appeal from order denying motion made by defendant forudgment on the pleadings for want of a reply.

      Rufus M. Townsend, for app’lt; C. S. McChesney, for resp’t.
   Learned, P. J.

The action is for goods sold and delivered. A schedule of the items is annexed to the complaint, showing, the goods to be what are called “Ells and Fees.”

The answer set up for the defense a contract for the goods specified in the complaint, and also for other goods, being certain sizes and quantities of pipe, which were not delivered at the time specified, and a portion of which were afterwards tendered on condition of immediate payment of the price. It avers, also, that by this breach of contract defendant has suffered damages to a certain amount, which he “demands to recover from the plaintiff to the destruction of plaintiff’s claim in this action and to recover the balance.” The defendant did not state that this was a counterclaim.

The plaintiff did not reply.

The defendant noticed the cause for trial at the circuit to be held May 19 th.

He then moved for a judgment on the pleadings May 3d, on the ground that no reply had heen served. The motion was denied and defendant appeals.

How, it is true that the matter set up in the answer constituted a distinct cause of action arising out of the contract or transaction set forth in the complaint, and is, therefore, a counterclaim as distinguished from a defense. Code, § 501, sub. 1.

But in order that the plaintiff shall understand that the defendant so treats the allegations, the defendant must expressly state that they are averred as a counterclaim. This must be done so that plaintiff shall know that a reply is necessary. There is ho good sense in requiring the plaintiff to conjecture whether the defendant intends a counterclaim as a defense. The defendant must state this plainly. Otherwise the defendant is misled. If the defendant does not say that he intends a counterclaim no reply is needed. Eq. Life Ass. v. Cuyler, 75 N. Y., 514; Acer v. Hotchkiss, 97 id., 408; Avery v. N. Y. C. & H. R. R. R. Co., 6 N. Y. Supp., 547; 24 N. Y State Rep., 918; Wood v. Gordon, 13 N. Y. Supp., 595; 38 N. Y. State Rep., 455; Favilla v. Moretti, 13 N. Y. Supp., 707.

This is a plain rule which prevents any mistake. It is abundantly settled by precedent, and is reasonable.

Order affirmed, with ten dollars costs and printing disbursements.

Landon and Mayham, JJ., concur.


text:
    Edmund Deyo, Resp’t, v. Foster S. Morss, Ex’r, et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed May 21, 1891.)

    Stay—Injunction.
    A court of record cannot by order stay proceedings pending in another court of record. Such relief must be obtained by injunction when security can be required.
    Appeal from an order of the special term staying all proceedings in an accounting of an executor in the surrogate’s court of Greene county until the determination of the action or the further order of the court.

      Howard Chipp, Jr., and Sidney Crowell, for app’lts; John A. Griswold, for resp’t.
   Learned, P. J.

This court and many other courts of record can stay proceedings by order in actions pending before them. But a court cannot by order stay proceedings in an action pending in another court of record. Belief of that general nature must be obtained, when proper, by injunction. The plaintiff cites us to no case to sustain his practice. 8 Pomeroy’s Equity, § 1371, speaks only of injunctions. German Savings Bk. v. Habel, 80 N. Y., 273, was the case of an injunction. So was Rogers v. King, 8 Paige, 210.

The distinction is plain and important. An injunction cannot "be granted without security. Code, § 620. And it is most important, where legal proceedings in another court are restrained, that the court granting the injunction should carefully consider what protection by way of security should be required. Special provisions are made in many such cases. Section 611 et seq.

Stays of proceedings are granted in the free discretion of the court. But injunctions are to be granted only when authorized by §§ 603, etc.

We do not decide whether in this case an injunction restraining the authority in the surrogate’s court would or would not be proper. It is enough to say that a stay of proceedings should not be granted to control the proceeding pending in that court.

Order reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs, without prejudice to any application for an injunction.

Landon, J., concurs; Mayham, J., not acting.


text:
    Sadie Strauss, Resp’t, v. David Strauss, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 21, 1891.)

    Divorce—Application for increased alimony.
    While the court has power to increase alimony in actions for divorce, such increase should not be granted unless new facts are shown which did not exist or were not known to the applicant when the former order was made; otherwise such an application is in fact an appeal from the discretion of one justice to that of another.
    Appeal from order increasing the alimony to be paid to plaintiff and allowing her an additional sum for counsel fee.

      Edward J. Maxwell, for app’lt; Westbrook, Borst & Perkins (Z. S. Westbrook, of counsel), for resp’t.
   Learned, P. J.

This is an action for limited divorce. An order was made in November, 1889, for thirty dollars per month alimony, by Justice Fish, together with $250 for counsel fees. An order was made in January, 1891, for an increase to fifty dollars per month and for further counsel fee of $100. From that part which allows additional alimony the defendant appeals.

There is no doubt of the power of the court to increase the alimony. .But an increase should not be granted unless new facts are shown which did not exist or were not known to the applicant when the former order was made. Otherwise the application becomes practically an appeal to another justice from the discretion exercised by the justice who granted the former order. In the former order in this present case the plaintiff asked for fifty dollai’s per month, but the justice held that thirty dollars would bs sufficient.

The affidavits on which the "second order was granted are those of the plaintiff and of her attorney. The latter only touches the question of counsel fee, which is not before us.

Looking, then, at the affidavit of the plaintiff, we find no facts stated which show any change of condition since the first order, except that defendant has repaid to plaintiff $3,000, property belonging to her. She states that she is in debt and needs clothing for herself and her child, and that she is unable to support herself out of the allowance. But assuming, as we must, that the alimony granted by Judge Fish was proper and sufficient at that time, no subsequent facts are shown to justify the increase. Indeed the possession of $3,000 has enabled the plaintiff, to some degree, to support herself.

We think that no additional alimony should be granted in such cases except on clear evidence that new or previously unknown facts require it

The part of the order appealed from is reversed, without costs to either party.

Landon and Mayham, JJ., concur.


text:
    In the Matter of the Application of John S. Maxwell for Admission as an Attorney.

      (Supreme Court, General Term, Third Department,

      Filed May 21, 1891.)

    Attorneys—Admission op.
    The rules of the court of appeals relative to the admission of attorneys are not invalid because they have not been published in the session laws and a copy filed in the office of the clerk of each county as required by Code Civ. Pro., § 57. The requirements of said section are directory-only.
    Application for admission as an attorney.

      John S. Maxwell, for motion.
   Learned, P. J.

Mr. Maxwell has been examined at this term and has shown himself to be qualified. The only difficulty is that he had not passed the regents’ examination as prescribed by rules 2 and 4 of the court of appeals respecting admission of attorneys and counsellors.

That court has held the filing of proof of such examination mandatory, and has refused to file such proof nunc pro tunc. Matter of Moore, 108 N. Y., 280 ; 13 N. Y. State Rep., 621.

We are now asked to admit Mr. Maxwell on the ground that those rules are invalid, because they have not been published in the session laws and a copy has not been filed in the office of the clerk of Montgomery county, as required by § 57.

Section 18 declares that a general rule of the court of appeals does not take effect until it has been published in the state paper for three weeks. But there is no similar provision in § 57. Therefore we think that the requirements of that section are only directory. If they were mandatory, a rule might be adopted, say in July, which could not take effect for nearly a year, since the next ensuing volume of the session laws might not be issued for a year afterwards.

The counsel refers us to Petition of Douglass, 46 N. Y., 42. But in that case the common council was prohibited from passing certain resolutions until after certain publication in newspapers. That was a very different provision from that contained in § 57 of the Code.

We must deny the application.

Landon and Mayham, JJ., concur.


author: Osborne, J.

text:
    Joseph Kellow et al., App’lts, v. William J. McCaw et al. Resp’ts.

      (City Court of Brooklyn, General Term,

      Filed April 27, 1891.)

    Appeal—Verdict.
    In an action on a promissory note, the defense was that the note was an accommodation note, which plaintiffs had agreed to have discounted and give the proceeds to the maker. It appeared that plaintiffs were first informed that it was business paper, but afterwards told that it was accommodation paper. The judge submitted the question as to whether the latter notice was given before or after plaintiffs had the note discounted at their bank as the only question in dispute. No exception was taken to the charge. Held, that as there was evidence to support a verdict for defendants, it would not be disturbed.
    Appeal from judgment in favor of defendants, entered on verdict, and from order denying motion for a new trial.

      George A. Mott, for app’lts; Charles Bradshaw, for resp’ts.
   Osborne, J.

Plaintiffs brought this action to recover the amount of a certain promissory note made by the defendant McCaw', to the order of, and endorsed by, the defendant Coombs.

The defense was that the note was an accommodation note, which plaintiffs had agreed to discount or procure to be discounted, and give the proceeds to the maker, which they have failed to do, and that plaintiffs had never parted with value for the note, and were not the legal owners and holders thereof.

It appeared from the evidence on the trial that the defendant Coombs was indebted to the defendant McCaw in the sum of $125 (the amount of the note in suit), and that McCaw gave the note to Coombs to get discounted and return to him the proceeds, Coombs to pay the note at its maturity. It further appeared that Coombs was also indebted to plaintiffs in about one hundred and twenty-eight dollars,and that he applied to them to discount the note. Plaintiffs were in the first instance informed by McCaw that the note was a good business note. McCaw, however, subsequently sent word to plaintiffs that the note was an accommodation note. Plaintiffs had the note discounted by their bank, and credited Coombs to the amount thereof on his account with them. The only question in dispute was as to whether plaintiffs were, notified that the note was accommodation paper before they procured it to be discounted. Counsel on both sides admitted, at the close of the evidence, that this was the only question left for the jury to determine. The learned trial judge accordingly submitted this question to the jury, charging them that if McCaw informed plaintiffs that the note was without consideration before they had put it to the credit of Coombs, plaintiffs could not recover, but that if such notice was not until after plaintiffs had credited the account of Coombs, the verdict must be in favor of the plaintiffs. Ho exception was taken to this disposition of the case by either counsel. The jury have found a verdict for the defendants, and there is evidence to sustain such finding. There is accordingly nothing left for us to review on this appeal.

The judgment and order denying motion for a new trial must be affirmed, with costs.

Van Wyck, J., concurs.


author: Van Wyck, J.

text:
    John A. Sopher, Resp’t, v. Gertrude W. Sargent, App’lt.

      (City Court of Brooklyn, General Term,

      Filed April 27, 1891.)

    Trial—Exceptions.
    Error cannot be predicated on an exception to a statement in a charge to the jury that certain questions were the only ones for them to determine, where the counsel in response to an inquiry stated that he did not think there was any question for the jury and made no request to submit any.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.

      Horace Graves, for resp’t; George C. Comstock, for app’lt
   Van Wyck, J.

After the trial judge had charged the jury, the defendant’s counsel stated to the court that he wished to except to the charge wherein the court had stated the only questions for the jury to determine were whether or not the husband of defendant was authorized to sign the contract for her, and the value •of the services. When the court asked the counsel what other question there was, he answered he did not think there was any question for the jury, and made no request of the court to submit any other question to the jury. Upon such an exception no error can be predicated. The testimony was sufficient to carry' the case to the jury, and therefore the motion for a nonsuit was properly denied. We discern nothing in the testimony which' calls upon us to disturb the verdict as against the weight of evi-, dence. ,

Judgment and order must be affirmed, with costs.

Osborne, J., concurs.


author: Clement, Ch. J.

text:
    Timothy Derrick et al. Adm’rs, Resp’ts, v. Mary Louisa Emmens, Impl’d, App’lt.

      (City Court of Brooklyn, General Term,

      Filed April 28, 1891.)

    1. Executors and administrators—May maintain action to set aside ASSIGNMENT MADE BY TESTATOR OR INTESTATE.
    An administrator stands in the place of his intestate, and may maintain an action to set aside an assignment of a fund in bank made by him on the ground of fraud or undue influence in procuring the same.
    2. Trial—Refusal to dismiss:
    A denial of a motion to dismiss cannot be claimed to be error calling for reversal where the defendant subsequently offered evidence and the case-was tried on its merits.
    3. Gift—Undue influence—Burden of proof.
    Plaintiff’s intestate, at the time of the execution of an alleged assignment of a fund in bank, was eighty years old and had been in a dying condition for a week, and his mind was weak. Held, that the burden of proof was on the party claiming under the assignment to show that there-was no undue influence.
    Appeal from judgment of special term adjudging a certain assignment in writing of moneys in the Seamen’s Savings Bank, made by plaintiffs’ intestate, to be a cloud upon plaintiffs’ title thereto.

      William Sullivan, for resp’ts; A. J. Morris, for app’lt.
   Clement, Ch. J.

The plaintiffs are the administrators of the-estate of Michael Morriss, who died in this city on October 11„ 1889. The defendant, Mary Louisa' Emmens, had in her possession, at the time of his death, a deposit book in the Seamen’s Bank for Savings, which account was opened by the said Michael Morriss, and on the book was endorsed an assignment to her by Morriss of the balance in the bank, $2,702.59. By the by-laws of the bank, it was provided that drafts could only be paid on the production of the book. The plaintiffs brought this action against Miss Emmens and the bank, and alleged that the assignment was -obtained by undue influence or was a forgery, and asked judgment that the assignment be canceled and that they recover of the bank the balance on deposit. The court at special term found that Morriss mechanically signed the instrument which ,was written on the pass-book, but that he was unconscious of the ¡nature of the act, and rendered judgment in favor of the plaintiffs, .""j.The counsel for the appellant insists that the motion to dismiss 'the case should have been granted. The plaintiffs could not draw jthejjmoney^unlesa they produced the book, which, at the com|mencenaént bf¿the- action, was in the possession of Miss Emmens, They had not seen the assignment, and only knew that she had attempted to draw the money, and had failed. They believed that fany draft which was held by the defendant was a forgery, or was’’obtained by undue influence, and, with such facts as they had, commenced the action. It was disclosed on the trial that Morriss had affixed his signature to an assignment of the fund-An action in equity to cancel the assignment was the proper remedy. Morriss, if he had lived, could have maintained such an action, and the plaintiffs are his personal representatives, and-stand in his place.

The plaintiffs offered no proofs, and rested; and a second motion to dismiss was made, which was denied. If the defendant had not offered testimony thereafter, it might be argued that the denial of the motion would havg been error, but the case was then tried on the merits. Certain admitted facts appeared which shifted the burden of proof in the action to the defendant. Morriss was, at the time of his death, about eighty years of age, and seven days prior to the date when he signed over the deposit had received the sacrament of extreme unction, which is administered to dying persons of the Roman Catholic Church, of which he was a member. When he executed the paper his mind was weak, as appears from the testimony of Miss Bmmens and her attorney. He did not recognize the attorney when he went into the room, though he had seen him twenty times before. He was confused, and thought that the attorney wanted him to make a will. On the conceded facts, the burden of proof was on the defendant to show that there was no undue influence. Green v. Roworth, 113 N. Y., 462; 23 N. Y. State Rep., 149, and cases there cited.

We have carefully reviewed the case, and conclude that the evidence fully justifies the finding of fact It appears by the testimony of Dr. Anderson, who was called by the defendant, that he saw Morriss on October 7th, and that he was then without the conveniences of a sick man, though the defendant lived in the same bouse, and though he had given her nearly $4,000 two days before. Morriss was at the point of death for at least a week before the date of the alleged gift, and was incapable of making a gift during that time, except on affirmative proof that there was no undue influence, and that the transaction was fair. The questions involved are purely of fact, and the decision at special term must .stand.

Judgment affirmed, with costs.

Osborne, J., concurs.


text:
    Morris L. Shillak, Adm’r, App’lt, v. Alfred T. White, Resp’t.

      (City Court of Brooklyn, General Term,

      Filed May 25, 1891.)

    1. Negligence—Landlobd and tenant.
    It is not the duty of the landlord of a tenement house to provide guard rails to the windows sufficient to sustain the weight of an adult person or to see that they continue to be strong enough to do so.
    2. Same.
    Plaintiff’s intestate was employed by a tenant of defendant to put in a pane of glass. In doing so he sat in the window with his feet inside and his back to two guard rails, which were fastened by screws to the sides of the window. A few minutes later he was seen lying in the yard dead with the rails and some of the screws beside him. Held, that the evidence was not sufficient to show negligence on the part of defendant or the freedom from negligence of the deceased.
    Appeal from judgment entered upon a dismissal of the complaint at the close of plaintiff’s case.

      Chas. E. Burke, for app’lt; Moore & Wallace, for resp’t.
   Osborne, J.

Defendant was the owner of a large tenement house known as the Tower Building, situate at the corner of Baltic and Hicks streets in this city. One Vandervoort was a tenant of certain apartments in said building on the first floor up from the_ street. On November 6, 1890, Mrs. Vandervoort employed plaintiff s intestate, a glazier, to put in a pane of glass in the upper sash of one of the kitchen windows; deceased had been similarly employed before by her. Outside of the window in question were 4wo iron bars or guard rails about five-eighths of an inch in diameter, each of which was fastened at the ends by two iron screws to the sides or hanging stiles of the window. Deceased was seen at work by one of the witnesses, sitting on the ledge of the window with his feet inside and his back to the bars; the next seen of him was about ten minutes after, when he was lying in the yard below, dead; both of the iron bars, with some of the screws "that held them in place, fell to the ground with deceased; the-space from the bars to the inside of the window sill was eighteen inches. This action was brought to recover damages on the ground that the death of plaintiff’s intestate was due to negligence-of defendant in consequence of the alleged carelessness and unsafe-condition of said guard rails, and that they constituted a nuisance.

On the trial plaintiff’s complaint was dismissed on the ground that there was no evidence of negligence on the part of the defendant, and that he owed no duty to the deceased, and plaintiff now appeals.

We think that this action was correctly disposed of by the learned trial judge. There is no evidence showing or from which it can be fairly inferred that deceased was himself free from negligence or without fault; whether he lost his balance while at., work, and with his whole weight coming suddenly against the guard rails they proved insufficient to stand the sudden strain thus imposed upon them, or whether he deliberately leaned his, body against the guard rails and so forced them out and then fell,, we are left entirely to conjecture. The learned counsel for the appellant takes the ground that it was the duty of the landlord to provide guard rails that.would sustain the weight of the deceased in leaning against them, or that, haying provided rails, the landlord was bound to see that they were in the first instance, and continued to be, strong enough to sustain the weight of an adult leaning on or against them. We do not think any such duty was imposed on the landlord of a tenement house. These rails are ordinarily attached to windows for the protection of small children, to prevent them from falling out, and the most that can be expected is that they should be reasonably fit for that purpose.. It appeared in evidence that the position of the deceased was one usually adopted in putting in glass; every day observation shows that the same position is adopted by bouse servants in cleaning windows, yet it has never been held, to our knowledge, that guard rails were a necessary accompaniment to insure the safety of persons so employed. It also appeared in evidence that it would take a pressure of about forty pounds to force out the screws bolding these rails in place. It seems to us that long before that, amount of pressure could have been applied by deceased, he should have felt the pressure of the rails on his back and been warned thereby that he was leaning out too far.

There is nothing in the case going to show that defendant knew, or should have had reason to suppose that these rails would be used as deceased would appear to have used them ; we certainly can not assume that they were put on the window as a back rest for glaziers or other persons having occasion to sit on the window sill; the space of eighteen inches between the rail and the inside of the-window sill would seem to have afforded ample room for deceased to do his work without relying on the rails for a support.

We think that the decision in Edwards v. N. Y & H. R. R. Co., 98 N. Y., 245, is authority sustaining the ruling dismissing the complaint.

For the reasons stated, the judgment dismissing the complaint should be affirmed, with costs.

Van Wyck, J., concurs


text:
    James Donohue, Adm’r, Besp’t, v. The Brooklyn City R. R. Co., App’lt.

      (City Court of Brooklyn, General Term,

      Filed May 25, 1891.)

    1. Master and servant—Negligence.
    Plaintiff’s intestate, a boy seventeen years old, had been employed as brakeman two weeks, when, in attempting to couple an engine to certain cars he was crushed between them. It appeared that the bumper or drawhead of the engine was lower than that of the car, thus allowing them to come within four inches of each other. Held, that on all the evidence the questions of defendant’s negligence and of the contributory negligence of the deceased were for the jury to determine, and that a motion to dismiss was properly denied.
    2. Same—Negligence op co-servants. ’’
    It is only where the master has done his duty in providing suitable appliances that negligence of a co-servant will exonerate him from liability.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.

      Chas. J. Patterson, for resp’t; Morris & Whitehouse, for app’lt.
   Osborne, J.

Plaintiff brought this action as administrator of his son’s estate, to recover damages for the death of Ms son, alleged to have been caused by the negligence of defendant.

Defendant operates a steam railroad from Twenty-fourth street in this city to Fort Hamilton. Deceased, a boy of seventeen years of age, was in the employ of defendant as a brakeman, which position he had held for about two weeks prior to the injuries which resulted in his death. On August 17, 1890, deceased started to couple the engine to a train of two cars at Fort Hamilton for the return trip to Brooklyn; as the engine was moved toward the car to be coupled, deceased went between the engine and car, and took hold of rhe draw-bar which was attached to the drawhead of the engine, and attempted to guide it into the draw-head of the car; the engine temporarily in charge of a brakeman, as it neared the car, moved a little faster than it had been going, deceased missed the coupling, the engine came in violent contact with the car, and deceased was so badly crushed between them that he died in two days afterward.

It appeared from the evidence on behalf of the plaintiff that it was usual to have bumpers on the car and on the engine, and that these bumpers were as well for the protection of the brakeman as of the car, in case the coupling was missed. The car in question was .furnished with a bumper extending out four and a half to five inches; the drawhead on the engine extended about six inches out from the engine, and served as a bumper, it also having a slot in it for the drawbar to fit into. When Donohue missed the coupling, as above stated, and the car and engine came in contact, it "was shown that by reason of the engine bumper or drawhead being three or four inches lower than the car bumper, the engine bumper passed under the car bumper, and, instead of there being a space of ten or eleven inches between the engine and the car on coming together, as would have been the case if the bumpers had met, there was only a space of four or five inches left for deceased to stand in, and he was consequently crushed. Plaintiff claimed that the failure of the defendant to provide bumpers .properly placed so as to meet each other, and thus keep a space open between the car and engine for the safety of the brakeman, con-" stituted negligence on its part which caused the death of his in testate.

Plaintiff had a verdict, and from the judgment entered thereon and the order denying motion for a new trial, defendant now appeals. Q

At the close of plaintiff’s case, the learned counsel for the defendant moved to dismiss the complaint on the grounds:

1st. That the evidence failed to establish negligence or failure of duty on the part of the defendant towards the deceased.

2nd. That the evidence established the fact that the injury was caused by the negligence of a co-servant.

3rd. That the evidence showed contributory negligence on the part of the deceased.

The motion was also renewed after all the evidence had been put in. Both motions were denied by the learned trial judge, and the denials were excepted to. The exceptions so taken are the only points to which the learned counsel for the appellant has addressed himself on this appeal.

It was unquestionably the duty of the defendant to take all reasonable precautions to insure the safety of its servants while in the performance of their duties, and if the death of the intestate in this case was due to the failure of the defendant to take such precautions, it will not be seriously disputed, we apprehend, that the defendant is liable. As already stated, the negligence of the defendant here complained of was in not having its car and engine so arranged that the bumpers would meet, instead of one passing under the other.

In Ellis v. N. Y., L. E. & W. R. R. Co., 95 N. Y., 546, the court of appeals held that it was a duty the defendant owed its employes to provide cars with buffers appropriately placed. The same proposition was again enunciated in Gottlieb v. The Same, 100 N. Y., 462, and cases there cited, and in Goodrich v. N. Y. C. etc., Co., 116 N. Y., 398; 26 N. Y. State Rep., 767.

The learned counsel for the appellant claims that these decisions are not applicable in the case at bar, as they applied only to freight cars; that in the case of coupling an engine to a car, no such precautions are necessary, because the engineer can see the brakeman, and can keep his engine under control, so rendering it perfectly safe to make the coupling. The fact that deceased lost his life in the present case would seem to he the strongest possible argument as to the fallacy of this contention. Plaintiff’s evidence went to-show that it was usual to have these bumpers for the protection of the brakeman, and defendant, by its evidence, sought to show the contrary. The learned trial judge charged the jury on this point as follows: “ You have heard the testimony on both sides, and it is for you to determine whether the negligence of the defendant in respect to the arrangement of these bumpers, as plaintiff contends, in their not coming together, whether that was negligence on the part of the defendant, and whether that negligence brought about the death of this young man.” This was certainly, on all the evidence, a proper question to leave to the jury to-determine, and the verdict indicates that the jury deemed the defendant negligent.

As to the second ground of the motion to dismiss, viz: that the injury was caused by the negligence of a fellow servant, defendant sought to show that the engine was backed by the brakeman in charge of it at an undue rate of speed, and that he was negligent in so doing. It is a well settled rule that the application of this proposition presupposes that the master or employer has done his duty in providing suitable appliances. As was said by Judge Danforth in Ellis v. N.Y., L. E. & W. R. R. Co., supra, p. 552, “ This rule, however, has no application if the company has at the same time disregarded its obligation to provide either a suitable road bed or engines, cars or other necessary appointments of the railroad, so that the injury is not entirely caused by the negligence of the fellow servant, but, in part, at least, is the result of that omission of duty. In such a case the negligence of the co-servant will not exonerate the company from the consequences of its own default. ” It seems to us that this is a conclusive answer to the second ground of the motion to dismiss.

As to the third ground, that the evidence showed contributory negligence on the part of the deceased, this was clearly a question for the jury; it was submitted to them by the learned trial judge, and the jury have found against the defendant We can see no ground, on any of the points stated, for interfering with the verdict.

The judgment and order denying motion for a new trial should be affirmed, with costs.

Clement, Oh. J., concurs.


text:
    Frederick W. Davis, App’lt, v. George W. Evans, Resp’t.

      (City Court of Brooklyn, General Term,

      Filed May 25, 1891.)

    Witness—Impeachment—Exclusion op evidence.
    It is not error to exclude evidence of statements made by defendant, offered for the sole purpose of affecting his credibility, where the offer is made before the defendant has presented himself as a witness.
    Appeal from judgment dismissing the complaint and from order denying motion for a new trial.

      Action to recover damages to plaintiff’s foundry, alleged to have been caused by the pressure upon its wall of a large heap of gravel piled against it on defendant’s adjoining land.
    The question referred to in the opinion was as follows :
    “Assuming the gravel piled up against the brick wall such as has been named to you, and the wall thrown down into the factory, what significance, if any, has the place where the gravel flowed in and the slope of its flow as regards the fall of the wall ? ”

      Alex. McKinney, for app’lt; J. Stewart Boss, for resp’t.
   Van Wyck, J.

Plaintiff’s counsel offered in evidence certain statements of defendant, for the express purpose of solely affecting his credibility, by showing that he had made conflicting statements, and the learned trial judge excluded them on the ground that counsel had better defer this offer till the defendant had presented himself as a witness, for till then his credibility was not involved.

Upon such an exclusion we do not think error can be predicated. Even if it was error it was cured by plaintiff’s opportunity to offer the statements in evidence after defendant was made a witness and by the actual offer and admission of the statements afterwards. It seems to us that the exclusion of the question at folio 92 was proper. It called upon the witness to express his conclusion that the pile of gravel pushed the wall down, and it did not assume correctly the facts and circumstances sworn to by any of the witnesses.

The counsel should have described the pile of gravel, its shape and size, and asked his mechanical expert the weight of pressure on the wall, and then described the wall and asked him what weight of pressure the wall would resist. But he, in fact, wanted this witness to decide the very question that the jury alone should have decided. These are the only exceptions referred to in the points.

We do not think the verdict contrary to or against the weight of evidence, after a careful consideration of the testimony.

Judgment and order affirmed, with costs.

Osborne, J., concurs.


author: Per Curiam.

text:
    Nathan May, Resp’t, v. Bertha Hammerschlag, App’lt.

      (City Court of Brooklyn, General Term,

      Filed May 25, 1891.)

    Appeal—Verdict.
    Where in an action for goods sold and delivered there is a direct conflict in the testimony as to whether there was a sale or only a consignment of the goods, the verdict of the jury should he sustained.
    Appeal from judgment in favor of plaintiff, entered on verdict, *,and from order denying motion for a new trial.
    Action to recover a balance alleged to be due upon a sale by plaintiff’s assignor to defendant of butter and eggs. Defendant claimed that the goods were received by her on commission ; that she sold the same and had accounted therefor except to the extent of $1.40.

      Anthony Barrett, for app’lt; Ira Leo Bamberger, for resp’t.
   Per Curiam.

It is not stated in the appeal book that it contains all the evidence. Cheney v. N. Y. C. & H. R. R. R. Co., 16 Hun, 419. But, on the assumption that it does, we have considered the question pressed on the argument that the verdict was against the weight of evidence. We have carefully read and weighed all the testimony in the case. The conflict is direct between the witnesses as to whether there was a sale or consignment of the goods to defendant There áre circumstances tending to weaken the force of their testimony. But, on all the evidence, we are of the opinion that the decision of the jury who heard and saw these witnesses should be respected and upheld.

Judgment and -order affirmed, with costs.

Van Wyck and Osborne, JJ., concur.


text:
    Mary A. McMurray, Adm’rx, Resp’t, v. Teresa Ennis, App’lt.

      (City Court of Brooklyn, General Term,

      Filed May 25, 1891.)

    Evidence—Code Crv. Peo., § 829—Waiver.
    In an action by an administrator to recover moneys paid after the death of Ms intestate to the latter’s daughter on checks drawn by him, a question put to the defendant as to whether her father ever promised to repay certain money to her is inadmissible under § 829 of the Code, and the plaintiff’s .right to object thereto is not waived by failing to object to her testimony that her father owed her such money.
    Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial on the minutes, on the exceptions taken, and on the ground that the verdict was contrary to the evidence and contrary to law.
    Action to recover moneys paid to defendant after the death of plaintiff’s intestate on checks drawn by him in favor of defendant, who was his daughter.
    Defendant was called as a witness by plaintiff, and testified that she received the checks about two weeks before her father’s death, and further stated that she did not know the checks were in existence till she got them, and that she gave her father nothing for the checks, and had never asked him for them. On cross-examination by her counsel, she testified that at the time the checks were delivered to her her father owed her $2,500. Plaintiff then examined her as to the transaction out of which this debt arose, and she was then asked by her counsel: “ Did your father ever promise to repay that money to you ?” This was objected to and excluded.

      L. B. Bunnell, for resp’t; Stimson & Williams, for app’lt.
   Van Wyck, J.

This case has been before us on appeal twice heretofore, and reported in 10 N. Y. Supp, 698; 81 N. Y. State Rep., 976, and 12 N. Y. Supp., 904; 86 N. Y. State Rep., 93. The only question requiring our special consideration on this appeal, not disposed of on the former ones, is that raised by the exception to the exclusion of the question: “Did your father ever promise to repay that money to you?” The objection to its admission was that it called for a conversation with a deceased party. It was not admissible unless the plaintiff’s right to such objection had been waived. The defendant had brought out that the deceased owed her $2,500. The plaintiff’s failure to object to this did not constitute a waiver of her right to object to further or other conversations between defendant and the deceased.

Judgment and order appealed from must be affirmed, with costs.-

Osborne, J., concurs.


text:
    August Immig, App’lt, v. John Hoesloop, Resp’t.

      (City Court of Brooklyn, General Term,

      Filed May 26, 1891.)

    Depositions—Examination before trial.
    An order for the examination of a plaintiff before trial to enable the defendant to prepare his answer and prove his defense should not be granted where it is apparent from the affidavit that the answer will be a general denial, and the only information of any value can be obtained through a bill of particulars.
    Appeal from order denying motion to vacate an order for the examination of the plaintiff before trial.
    Action to recover upon an alleged promise by defendant to guaranty the payment of sales of goods that might be made to. one Fritz Schnatmeyer, not exceeding $600.
    The affidavit on which the order for examination was obtained stated that defendant had no knowledge of any such promise, for none was made or intended to be made, and that he could not imagine on what circumstance or in what way such promise was inferred, and that he had no knowledge of the state of the accounts between plaintiff and Schnatmeyer.

      Ayres & Walker, for app’lt; Barnum & Rebhann, for resp’t.
   Per Curiam.

This is an appeal from an order denying a motion to vacate a prior order for the examination of the plaintiff before trial. The application for the examination was made by the defendant before issue was joined, in order to prepare his answer and to prove his defensa It is apparent from the affidavit of the defendant that the answer will be a general denial, and that any information given by the plaintiff will in no wise help him in preparing his answer. If the defendant desired a statement of the account he could obtain a bill of particulars. We think that the application was premature, and that the examination was not necessary.

Order reversed, with ten dollars costs and disbursements, and motion granted.

Clement, Ch. J., and Osborne, J., concur.


text:
    Frederick Gans, Resp’t, v. James Hughes, App’lt.

      (City Court of Brooklyn, General Term,

      Filed June 22, 1891.)

    1. Lease—Bakery.
    When premises are leased. “ to be used as a bakery ’’ the lessee acquires thereby such appurtenances as usually belong to and are necessary to enable him to carry on the bakery business, including the use of water.

      2. Same—Permission to connect with water main not a license in such CASE.
    There was no water in the portion of the premises leased to plaintiff for a hakery, but defendant consented that he should connect with water pipes in other parts of the building at his own expense, which was done. Held, that such water connection was an appurtenance of and implied in the lease and was not the subject of a license, and that defendant could not thereafter remove the same during plaintiff’s occupancy.
    Appeal from j udgment of special term in favor of plaintiff.
    Action to enjoin defendant from interfering with the water pipe in the bakery leased by him to plaintiff during the continuance of plaintiff’s tenancy.

      Julius Klamke, for resp’t; Magner & Hughes, for app’lt.
   Osborne, J.

By indenture bearing date October 20, 1887, defendant leased to plaintiff “ all that certain store and the rooms in the rear thereof comprising the ground floor, and the front part of the cellar of the premises known as No. 82 Berry street, to be used as a bakery for the term of three years to commence on the 1st day of November, 1887,” at the yearly rent of $360, “ with the privilege to the party of the second part, of renewing this lease for a further period of three years, at the yearly rental of four hundred and twenty dollars.” The lease further provided that the plaintiff, the tenant, should, at his own expense, put in the part of the cellar thereby, demised a first class oven, of such dimensions as should be agreed on by the parties, keep the same in good condition, and leave it in the premises on the termination of the lease.

Under this lease plaintiff entered on the premises in October, 1887, and proceeded to build the oven in the cellar, as covenanted. It appears from the evidence that, while the oven was being built, and prior to November 1, 1887, when the demised term was to commence, plaintiff told defendant that he would need water in the bake shop in the cellar, and defendant consented that plaintiff could connect the water pipes from that part of the cellar which was not leased to plaintiff, but it must be done entirely at plaintiff’s expense. Plaintiff testifies: “ He (defendant) told me I could do what I liked to carry on my business.” The plumber employed by plaintiff to make the connection also testified that he asked defendant, while in the cellar : “Is this where to put the pipe? ” And defendant replied: “ You know best; connect it right in the rear where the main pipe comes in,” and the connection was accordingly made.

Plaintiff occupied the premises leased, including the water connection, through the original term of three years named in the lease, and having availed himself of his option for the further term of three years, as stipulated in the lease, continued his occupancy up to February 26, 1891, when defendant, without any notice, cut off the water supply in the cellar used as the bake shop; plaintiff reconnected said pipe; thereupon defendant again cut off the water. Plaintiff accordingly brought this action to restrain defendant from interfering with the water pipes and from cutting off the water supply.

On the trial it appeared, and the learned judge has found, that water was necessary and incidental to the use of said cellar as a bakery, and that the city does not permit more than one connection of the water main with one house.

Plaintiff had judgment below for the relief sought, and defendant appeals.

The contention of the learned counsel for the defendant upon this appeal is substantially that the right to use the water connection in the cellar was not included in the lease, and that the permission from defendant to plaintiff to make the connection in the cellar was a mere license, which defendant had a right to revoke at his pleasure. We do not think this contention can be maintained.

Leases, like other agreements, are to be construed so as. to carry out the intention of the parties. When premises are leased for an expressed purpose, everything necessary to the use and enjoyment of the demised premises for such expressed purpose must be implied where it is not expressed in the lease. Kelsey v. Durkee, 33 Barb., 410; McAdam on Landlord and Tenant, 114. It follows, therefore, that when plaintiff leased the premises in question “ to be used as a bakery,”'he acquired also such accompaniments and appurtenancés as usually belong to and were necessary to enable him to carry on the bakery business. It .appears here from the findings, supported by evidence, that water was necessary and incidental to the use of the cellar as a bakery; indeed, defendant seems to have conceded this, when, in October, before the demised term began, and while the oven was being built, he consented to the water connection being made, only stipulating that plaintiff should bear the expense thereof. For defendant, at this late day, to seek to sever the water connection is an interference with the same use of the premises for the purpose for which they were hired, and equity will intervene to prevent such interference.

We do not think that the numerous authorities cited by the learned counsel for the appellant, to the effect that a licensor has the right to revoke a mere license at his pleasure, have any bearing on the case now before us, for the reason, as we have' endeavored to show, that the water connection was not the subject of a license, but was an appurtenance of and implied in the lease itself; but even if it was the subject of a license, it was attached to a valid grant of real property, and, being coupled with an interest, it could not be revoked during the existence of the grant Wood’s Landlord and Tenant, 557.

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

Clement, Oh. J., concurs.


text:
    Frank Baylis, an Infant, Resp’t, v. The Schwalbach Cycle Co., App’lt.

      (City Court of Brooklyn, General Term,

      Filed June 22, 1891.)

    1. Assault—Liability of cobpobatiohs fob acts of employes.
    When the employe of a corporation, in the discharge of his duties, makes a mistake and exceeds his powers, the corporation is liable if he acts within the line of his duty.
    2. Same.
    Defendant let a tricycle for a specified time to one D., and the same was returned some hours later by plaintiff. One S., who was at the store of defendant, told plaintiff to go in and sit down, and then demanded payment for the use of the tricycle and detailed plaintiff until the same was paid. While so detained plaintiff , was struck and kicked by S. several times. Held, in the absence of proof to the contrary, that S. was in charge of defendant’s store; that he was acting in the line of his duty, and while doing so overstepped his authority, and that defendant was liable.
    Appeal from judgment in favor of plaintiff, entered upon ver•dict, and from order denying motion for a new trial.
    Action for assault.

      A. Simis, Jr., for resp’t; Dailey & Bell, for app’lt.
   Clement, Ch. J.

On July 20, 1890, Walter C. Denike hired a tricycle from the defendant at its store in Bedford avenue for one hour. The charge was one dollar, and Denike paid on account sixty cents. He turned over the machine, after using it for fifty minutes, to one Kingston, who rode upon it to Coney Island, and he then turned it over to plaintiff, who took it back to the -.store of defendant. When plaintiff reached the store he met Alexander Schwalbach on the sidewalk, who told plaintiff to go inside of the store and sit down. Schwalbach demanded four dollars and fifteen cents of the plaintiff for the use of the cycle, and would not allow him to leave the store until it was paid. The plaintiff paid two dollars and fifteen cents, which was all the money he had, and afterwards his father paid the balance, two dollars. While plaintiff was detained, Schwalbach struck plaintiff a dozen times, and kicked him. When the father arrived, the plaintiff's nose was bleeding and his face was bruised. It was admitted in the answer that Schwalbach was in the employ of the defendant, but there was no direct testimony as to his duties. The defendant offered no testimony at the trial.

It would appear, by inference from the case, that Schwalbach was in charge of the store of the defendant when the plaintiff returned the machine, and had a right to demand of the plaintiff pay for its use. The fact that the plaintiff did not hire the cycle would not prevent the defendant from collecting a charge for its use, certainly for the time that the plaintiff did use it. It follows that Schwalbach, while in charge of the store, in endeavoring to collect money due the defendant, detained the debtor, and while so detained brutally assaulted him.

Corporations act by their officers and employes, and when an employe in the discharge of his duties makes a mistake, and exceeds his powers, the employer is liable, if he acts in the line of his duty. In this case the employe received four dollars and fifteen cents, and the presumption is that" he turned over the money to the defendant. In other words, the defendant has received the money which was extorted from the plaintiff, and its officers were not called to prove that the same was received without their knowledge as to the method of collection, or to prove that the defendant offered to return the money when knowledge came to them.

We think the plaintiff made out a case which, unexplained, required the submission of the same to the jury. In Lynch v. The Metropolitan R. R. Co., 90 N. Y., 77, 86, Judge Earl says: “It matters not that he exceeded the powers conferred upon him by his principal, and that he did an act which the principal was not. authorized to do, so long as he acted in the line of his duty or, being engaged in the service of the defendant, attempted to perform a duty pertaining, or which he believed to pertain, to that-service.” It is true in that case that the employe was authorized to detain a passenger until he gave up his ticket, but he was not authorized to arrest or to make a complaint at the police,station. In the case before us the employe was authorized to collect money for his employer, in its place of business, and while so doing overstepped his authority. He collected the money and paid the same to his employer, the defendant, without objection on the part of its officers to the method of collection.

Judgment and order denying new trial affirmed, with costs.

Osborne, J., concurs.


author: Peckham, J.

text:
    The People ex rel. Emmet Meters, Resp’t, v. The Masonic Guild & Mutual Benefit Association, App’lt.

      (Court of Appeals,

      Filed June 2, 1891.)

    1. Benefit societies—Mandamus to compel assessments.
    Where the certificate issued by a mutual insurance association provides that on the death of a member a certain sum is to be paid, or such proportion thereof as is provided for in the by-laws, and these direct the making of a fixed assessment on members for a death loss, such certificate is a contract with the members which limits their liability, and after one assessment has been levied and paid mandamus cannot lie to compel the levying of another assessment, although the sum realized was less than, the sum fixed in the certificate.
    2. Same.
    Even though the assessment resulted in raising enough to pay the full amount of the certificate, or if it so resulted in connection with the surplus funds of the defendant, the members were no insurers of the proper application of the fund to the payment of the certificate by defendant’s officers.
    Appeal from judgment of the supreme court, general term, second department, affirming order directing a peremptory mandamus-to issue against appellant, directing it to make a call and continue making and calling an assessment upon its members to pay a judgment recovered by respondent.
    The defendant, a corporation organized under the laws of this state as a mutual benefit association, issued to one Isaac Meyers a certificate, payable to the relator or his legal representatives, in the nature of a policy of insurance for $3,000, or for such proportion of the said sum as was provided for in the bylaws of the association. The consideration for such certificate was the representations made by the party insured in his application for insurance and the payment of a certain sum as admission. fee, and the further payments provided in the by-laws. Printed on the back of the certificate was a copy of article 6 of the bylaws, providing for making an assessment on members, as therein stated, to pay death losses. But one assessment, under the by-laws, could be levied for any one death loss. Isaac Meyers died while the certificate was in force and while he was a member in good standing in the company. The certificate then became due and payable to the relator. One assessment was made upon the members in conformity with defendant’s by-laws and regulations, and the relator was paid a certain proportion of the amount -of the certificate, which he acknowledged as payment in full of his claim by reason of the death of said Isaac Meyers. Subsequently the relator brought an action against the defendant to recover the balance alleged to be due on such certificate, and that action resulted in a judgment against the defendant for the recovery of such balance. The findings of the court made upon the trial of such action are contained in the record herein, from which it appears that an assessment was made for the purpose of providing a fund with which to pay the amount named in the -certificate, and such assessment had been paid, and the defendant had on hand, or should have had, as the court found, the moneys derived therefrom, which were sufficient to pay the amount stated in the certificate, but which payment had only been made in part. It was further found that the defendant had sufficient surplus funds in its possession for the payment of the plaintiff’s claim in full, and which claim would have been fully paid and satisfied therefrom, and the defendant had promised to pay the claim from such surplus fund in its possession. The company failed to pay, however, and judgment for the balance was given, which was duly entered, and no appeal was taken. The plaintiff in the action duly issued execution upon the judgment, and it was returned wholly unsatisfied.
    The relator then commenced these proceedings to compel the •defendant by mandamus to make another assessment upon the members holding certificates in the defendant company and to continue making them to an amount equal to the sum of the j udgment until it was fully paid and satisfied. The special term granted the writ substantially as asked for and its order was affirmed at general term, and from the order of affirmance the defendant has appealed here.

      Adolphus D. Pape, for app’lt; John W. Lyons, for resp’t.

       Reversing 34 N. Y. State Rep., 333.

   Peckham, J.

The certificate was the contract entered into by the defendant. Its liability to pay a death loss, and the manner in which it should do it, were provided for in the by-laws. By the liability which the members assumed must they be judged. It appears that they are liable to pay but one assessment for each death loss, and that one has been already made pursuant to the provisions of the by-laws, and the members upon whom it was made have paid the same. By the affidavit of the secretary of the defendant it would seem that an amount only equal to three-fifths of the certificate had been the result of such assessment, while the findings of the court in the action brought by the relator against the defendant show the defendant to have collected enough therefrom to pay the full amount of the certificate, or enough to pay it in full with the aid of the surplus which the court finds it had on hand. We think in neither event does there remain any liability on the part of holders of certificates of defendant to pay any further assessment If that be so. of course none should now be ordered.

One assessment having been paid, the members discharged their whole duty in the premises which they had contracted to perform. If the assessment did not result in enough to pay the certificate in full, that was no fault of theirs; they fulfilled their contract and could not be asked to perform any more. If the-assessment resulted in raising thereby enough to pay the full amount of the certificate, or if it so resulted in connection with the surplus funds of the defendant, the members were no insurers of the proper application of the fund to the payment of the certificate by defendant’s officers. Mandamus is no remedy to. compel them to pay any further assessment, for they are under no liability in the premises. How the relator shall collect his -judgment against the defendant is a question not before us. Ho case for a mandamus has been made out, and the orders of the general and special terms should be reversed and the motion denied, with costs in all courts.

All concur.


author: O’Brien, J.

text:
    Lanie M. Petrie, Resp’t, v. Morgan Petrie et al, App’lts.

      (Court of Appeals,,

      Filed June 2, 1891.)

    Evidence—Code, § 829. .
    Upon the trial of an action to partition real estate, defendantset up a wilP alleged to have been executed, by which all the land was devised to him. The jury found specifically that the deceased was not mentally competent to make a will, and that the alleged will was made through fraud, duress and undue influence. Plaintiff was allowed to testify to a conversation' which she heard between the defendant and her deceased father, which related to making a will and to her share in the estate. Held, that as the deceased had been found to be incapable of making a will, the testimony was immaterial and not affect the result.
    Appeal from judgment of the supreme court, general term, • fourth department, affirming order of Oneida ’circuit, denying a motion made upon the minutes for a new trial.

      Edwin J. Brown, for app’lts; C. D. Prescott, for resp’t.

       Affirming 25 N. Y. State Rep., 309.

   O’Brien, J.

The purpose of this action was to partition certain real estate of which ¡Nicholas H. Petrie died seized May 23,1885. The plaintiff is his daughter and the defendants are his other children and heirs-at-law. The complaint proceeds upon the assumption that the father died intestate, but Morgan Petrie, the son, in his answer, set up a will alleged to have been executed and published by his father on the 30th of April. 1877, and admitted to probate on the 9th of December, 1884, by which all the land was. devised to him, subject to a small legacy to the plaintiff, and two other small legacies to her sister and mother. The validity of this will was the only controverted question involved in. the trial. Upon the application of the plaintiff, the court directed that two specific issues or questions of fact, which were stated in writing, should be submitted to the jury. These questions were whether the deceased was, at the time it was claimed that the paper purporting to be his will was executed, mentally competent to make a will, and, secondly, whether the paper so purporting to be his will was made through fraud, duress or undue influence.

The jury answered the first question in the negative and the-latter in the affirmative, thus determining both questions in favor of the plaintiff and against the validity of the will. The deceased at the time of the execution of the instrument was eighty-one years of age. His acts and declarations and numerous facts and circumstances, occurring at or about the time the paper was signed, were given in evidence, indicating a weak and enfeebled condition of the mind. The impression which his acts and declarations had made upon his neighbors and acquaintances was also shown. The proof upon this issue was conflicting, but of such a character as to require the trial court to submit it to the jury. The rules by which the jury should weigh the evidence and determine the fact were stated by the learned trial judge in a very fair and impartial charge, and we are concluded by the finding. The finding that the deceased was incapable of making a will rendered the further question, whether there was fraud, duress or undue influence, immaterial though that question, as we have seen, was also determined in plaintiff’s favor. The plaintiff was sworn as a witness in her own behalf and, without any objection, testified as follows: “Have heard father and Morgan talking together when I had no personal connection with the transaction. Have heard them talking often during the ten years previous to father’s death. Heard them talking frequently prior to 1877 for the last two or three years before that. * * * I remember a time when Morgan and father went to Oneida together. They had not been there together, to my knowledge,' for a long tima I hadn’t seen them start off together for as much as five or six yeara It was. m the morning when they started; nearly nine o'clock. It was in the spring. Before they started I heard conversation between Morgan and father, and in which I had no part. * * * They were in the barn. . I went to the cistern to get some water. I was only a short distance from the barn. I couldn't say how many rods. The barn is very near the house.”

Q. Were you in sight of them so that they saw you, or were-they in the barn out of your sight? A. I could see them there and hear them talk.

Q. They could see you ? A. I think they could if they had looked that way.

Q. What conversation did you hear between Morgan and your father that morning ?

This question was objected to by the defendant’s counsel on the ground, among others, that it was inadmissible under § 829 of the Code of Civil Procedure. The objection was overruled and the defendant’s counsel excepted.

A. “ They were talking about making a will. I heard Morgan ask him how he was going to make it I heard father say that he wanted to give me my home there and support, and Morgan said, Give her some money. I did not hear any more. They started for Oneida in a short time. I don’t think they were in the house after that before they went to Oneida. When this took place they were standing in the barn. They were doing nothing there: Perhaps ten minutes after that they started right off and went to Oneida. They returned about noon.”

It appeared by other testimony in the case that the deceased and his son Morgan went to Oneida together, and that the will was drawn by an attorney at that place on the day it bears date. The ruling of the trial court upon the objection to the above question would present a somewhat important point under the construction which this court has given to § 829 in recent cases, if it could be held that the answers in any degree affected the result. Holcomb v. Holcomb, 95 N. Y., 326; Matter of Eysaman, 113 id., 62; 22 N. Y. State Rep., 136; Matter of Dunham, 121 N. Y., 575 ; 31 N. Y. State Rep., 858.

But we think that the answers to the question as the case now stands were immaterial. If the issue of undue influence and fraud had, as already observed, been found the other way and in favor of the defendant, the result must be the same, so long as it was found, by a separate and independent finding, that the deceased was incapable of making a will. The testimony objected to was not intended to apply to the issue of incapacity, and could not have had any effect whatever upon that question. Indeed, so far as that particular issue is concerned, the testimpny was rather favorable to the defendant than otherwise, as it tended to show that the deceased, when about to start for Oneida to procure his will to be drawn, seemed to understand what he was about to do and talked intelligently enough with his son about it, so far as appears from this testimony. With the issue of fraud and undue influence out of the case this testimony might, very prudently, have been given by the defendant. The plaintiff sought to show by this conversation in the barn that the deceased intended to provide a home for the plaintiff on the farm, but, through the influence of Morgan, he was induced to make the will without any such provision and a small money legacy was substituted in accordance with Morgan’s suggestion “ to leave her some money.” For the same purpose it was shown by plaintiff that for many years prior to about the time the instrument was drawn Morgan and his father were on bad terms; that they frequently called each other names and swore at each other, but a better state of feeling was established between them about the time of the conversation in the barn. As the finding upon the issue of undue influence became wholly immaterial, so the testimony applicable and directed to that issue only could not, even if objectionable, prejudice the defendant.

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

All concur.