author: Follett, J.

text:
    Joseph K. Murray, Trustee, Resp’t, v. The Great Western Insurance Co., App’lt.

      (Supreme Court, General Term, First department,

      Filed October 13, 1893.)

      1. Insurance (Marine)—Constructive total loss.
    In determining whether a ship is so far injured as to become a constructive total loss, the rule in this state is that the value as stated in the policy controls.
    2. Same—Weight op evidence.
    In an action on such a policy there was evidence that the repairs would exceed the value of the vessel. It was also shown that she was not seaworthy; that although valued in the policy at $75,000, she was sold for about $1,000, and after some $6,000 was sold for $30,000. The policy provided that a constructive total loss could not be claimed unless the net cost of repairs should exceed half the value of the vessel. Held, that a finding of .a constructive total loss would not be disturbed as against the weight of evidence.
    3. Same—Evidence.
    Where evidence of a witness was introduced to show that the value of " the vessel after stranding was such that it could not be regarded as a constructive total loss, Held, that it was competent to show on cross-examination the amounts for which said vessel was sold, at dates subsequent to that of her stranding, for the purpose of enabling the jury to judge what weight should he given to such evidence as to value.
    4. Same—Abandonment.
    The owners of a ship procured insurance for the benefit of a mortgagee,. The vessel was stranded October 23,1878. On December 18, 1878, the owners notified the insurer of its abandonment. On March 12, 1879, the mortgagee also notified the insurer that said notification by the owners was given with his authority, and that he ratified and confirmed it. Held, sufficient to establish presumptively a legal abandonment.
    3. Same.
    An abandonment to be effectual, must be made within a reasonable time-It seems that what time is reasonable is a mixed question of fact and law. Held, that, as the defendant did not request to go the jury on the question whether the abandonment was made within a reasonable‘time, but asked the court to determine as matter of law that the abandonment was not made within a reasonable time, error cannot be predicated of the court’s finding against the defendant.
    8. Same—Appeal.
    The court could not on appeal consider the question whether reasonable efforts were used for the safety of the vessel, as such question presented an issue of fact, as towhich a determination had not been requested at the trial.
    V. Same—Proop op loss.
    The insurer cannot raise the question of defects in the proof of loss, where it had not given notice of alleged defects in season to have them corrected.
    -8, Same—Evidence—Letters.
    Where letters of the plaintiff to his agents in relation to the standing have been given in evidence by defendant, letters in relation thereto written by the agents to plaintiff and forming part of the correspondence, are competent.
    9. Same—Counterclaim—Premium notes.
    The amount of a premium note due the defendant when this action was begun, from the owners of the vessel, although not on the policy sued on therein, allowed as a valid counterclaim.
    Appeal from, a judgment entered on a verdict, and from an order denying a motion for a new trial made on the minutes.

      Evarts, Southmayd & Choate (Treadwell Cleveland and Prescott Hall Butler, of counsel), for app’lt; George C. Holt, for resp’t.
   Follett, J.

This action was brought to recover on a marine policy of insurance, by which the defendant insured the Cleopatra against perils of the sea for one year from September 16, 1878, for $9,000, under a policy in which the vessel was valued at $75,-€00. The policy was taken out by and in the name of the owners <of the ship ; but, by an indorsement, the loss, if any, was made payable to the plaintiff, as trustee for certain mortgage bondholders. The vessel was also insured by other underwriters for $38,-€00. The Cleopatra was a wooden steamship, of about 1,045 tons burden, built in 1865. In August, 1878, she was found to be considerably “ hogged,” both ends being lower than the centre; and in that month she was repaired, strengthened and supplied with new boilers. At this time, and at the time of the stranding, David Colden Murray, Lindley Murray Ferris, Jr., and EobertM. Ferris, constituting the firm of Murray, Ferris & Co., were the owners of 85-100, and Sophus Valentine, the master, was the owner of 15-100. To secure the payment of $20,000, the cost of the repairs, Murray, Ferris & Co., September 18, 1878, mortgaged their interest in the ship to Joseph K. Murray, as trustee, to secure the payment of forty bonds of $500 each.

The mortgagors stipulated in the mortgage to keep the vessel insured for $25,000 for the benefit of the trustee. There was a ptior mortgage of $6,000 on the ship, held by Joseph K. Murray, individually, which he stipulated should become the second lien. After the ship had been so repaired and insured, she made one round voyage between New York and Santiago de Cuba via Nassau and Cienfuegos without accident, and October 17, 1878, she left New York on a second round voyage between the same ports. October 23,1878, the vessel was stranded on a reef in Douglas channel, near Nassau, New Providence,— one of the Bahama islands. December 18,1878, the owners gave the defendant written notice of the stranding, and that they abandoned the vessel to the insurers; and March 18, 1879, the plaintiff, as trustee, gave a like notice, in which the owners also joined. It is conceded that the vessel was considerably injured by the accident, and the plaintiff asserts that he and the owners were justified in abandoning her, and that he is entitled to recover for a constructive total loss. Besides the question of damages, the only issue of fact submitted to the jury (neither party requesting the submission of any other) was whether the vessel was so injured that it became a constructive total loss. This issue has been three times tried—First, at special term, before Mr. Justice Donohue, where a judgment was rendered for the plaintiff; second, before a jury which disagreed; and, lastly, before the jury which rendered the verdict on which this judgment now under review was entered.

The policy provides : “ And it is further agreed that, in case a total loss shall be claimed for or on account of any damage or charge to the said vessel, the only basis of ascertaining her value shall be her valuation in the policy.”

The valuation clause in the policy is as follows:

Hull and apparel value at.......................... $37,500

Boilers and machinery valued at..................... 37,500

Total....................................... $75,000

“ The valuation of hull, tackle, and apparel being made separate from that of the boilers and machinery, it is agreed that no abandonment of one interest, as valued, shall be made unless there shall be a total loss of the other.”

It was further provided in the policy: “ And, lastly, it is agreed that, in case of any claim for loss or damage, a deduction of one-third from the cost of repairing or replacing the same shall be made, after deducting the value of the old materials, except in the case of anchors, and of sheathing of copper and other metal; a deduction of one-fortieth from the expense of repairing or replacing the metal sheathing, or any part thereof (after first deducting the value of the old metal and nails), shall be made for every month since the vessel was last sheathed until the expiration of forty months, after which time the cost of remetalling or repairing the same shall be wholly borne by the assured. If a technical total loss shall be claimed, similar deductions shall be made from the estimated repairs, and, unless the net cost thereof, would exceed a moiety ol: the value of the vessel after making such deduction, the loss shall be deemed partial only.”

The term “ technical total loss ” is used in the policy, which means the same as “ constructive total loss.” 2 Phil. Ins., 237; 2 Pars. Mar. Law, 336; 2 Pars. Mar. Ins., 110. Mr. Arnould, in his learned work on marine insurance, vol. 2 (6th ed.), 951, defines the term “constructive total loss” as follows: “ An absolute total loss takes place when the subject insured wholly perishes, or there is a privation of it and its recovery is hopeless. A constructive total loss takes place when the subject insured is not wholly destroyed, but its destruction is rendered highly probable, or the privation of it, though not quite irretrievable, is such that its recovery is either exceedingly doubtful, or too expensive to be worth the attempt. An absolute total loss entitles the assured to claim from the underwriter the whole amount of his subscription. A constructive total loss entitles him to make such claim on condition of giving notice of abandonment of all right and title to any part of the property that may still exist, or may still be recovered.”

This definition is approved by the courts and text-books. 3 Kent Comm., 318; 2 Phil. Ins., 237; 2 Pars. Mar. Ins., 107, and cases cited. The foregoing is the general rule, but in cases of injuries to vessels, and in the absence of stipulations in the policies on the subject, the courts of different jurisdictions do not agree as to the proportion which the cost of repairing must bear to the value of the ship, so as to justify an abandonment, and a claim for a constructive total loss. Dickey v. American Ins. Co., 4 Cow., 222; affirmed, 3 Wend., 658; Saurez v. Sun Mutual Ins. Co., 2 Sandf.,482 ; 2 Pars. Mar. Ins., 125 et seq. ; 2 Arn. Mar. Ins., 6th ed., 952; Irving v. Manning, 1 H. L. Cas., 287. And the courts do not agree, in the absence of stipulations on the subject, whether the valuation in the policy, if the vessel be therein valued, or the value of the ship just before the injury, or its value after reparation, should be taken as the basis in estimating the proportion of the cost of repairs to value. American Ins. Co. v. Ogden, 20 Wend., 287; Wallerstein v. Columbian Ins. Co., 44 N. Y., 204, 217; Patapsco Ins. Co. v. Southgate, 5 Pet., 604; Deblois v. Ocean Ins. Co., 16 Pick., 303; Peele v. Merchants' Ins. Co., 3 Mason, 27; Bradlie v. Maryland Ins. Co., 12 Pet., 378; 3 Kent Comm., 331; 2 Pars. Mar. Ins., 134; 2 Arn. Mar. Ins., 6th ed., 995, 1035, 1046, 1148. In the case at bar, it is provided in the policy that a constructive total loss shall not be claimed unless the net cost of repairs, after making the deductions specified in the clause, exceed one-half of the value of the vessel. In this state the rule is that, in determining whether a ship is so far injured as to become a constructive total loss, its value as stated in the policy controls. American Ins. Co. v. Ogden, supra; Wallerstein v. Columbia Ins. Co., supra; 3 Kent Comm., 331. This is also the rule in Massachusetts, Deblois v. Oceanic Ins. Co., supra, and in England, Irving v. Manning, supra; 1 Arn. Mar. Ins., 6th ed., 301. The supreme court of the United States holds that the actual value of the ship immediately before the accident is to govern. Patapsco Ins. Co. v. Southgate, supra; Bradlie v. Maryland Ins. Co., supra; 3 Kent Comm., 331. .The learned trial judge instructed the jury in accordance with the rule of this state, which was acquiesced in at the trial by the litigants, and the accuracy of the instruction is not questioned by counsel on this appeal. Whether the extent of the injuries sustained by the vessel was ■sufficient to justify its abandonment, within the rule of this state, was a sharply contested issue of fact, which the appellant insists was determined contrary to the weight of evidence.

Two surveys were made of the Cleopatra by surveyors appointed by the United States counsel at Nassau. The first one was October 24, 1878, at Cochrane’s anchorage, the day after the stranding. This survey was made by James H. Gamblin, Henry C. Lightbourne and Charles Smith, assisted by two divers — Charles Sweeting and William Glinton. Gamblin testified that he was a merchant, and Lloyd’s surveyor; that he had been called on to net as such on several occasions, and that he was familiar with ships and shipping; that he had been the chief officer of a vessel for ten years, and was at one time chief officer of one of the Cunard steamships. He testified: “We found her sheer line hogged fully ten inches amidships, the upper deck waterway scarfs broken, butts open, joiner work in the cabin started, some of the bulkheads down, and with a general appearance of being badly strained. She had steam up in the starboard boiler to pump with the donkey •engine, which was constantly going; her rate of leakage being about eight inches an hour, she then lying in smooth water. All the signal wires were broken. Both of her boilers had shifted, starting the brace bolts, and breaking one brace entirely. The port boiler was crushed across the saddle bearing about ten inches an length. * * * The hogging of the vessel and the shifting of the boilers drew out the ship joints of the main steam pipe about twelve inches. The safety valve of the donkey engine was broken, the escape pipe crushed flat, the fire pipes broken, fire-room ventilating plates broken, worming of several screws and nut bolts broken. Holding-down bolts were some of them started and others broken. Her smoke-stack was started forward about ■twelve inches, the hurricane deck rails cut down, and the port life-boat damaged. We discovered that, by a-eason of the damages sustained, the said steamship was in a bad condition and unseaworthy, in reference to her pi-osecuting her voyage.”

Lightbourne, the other surveyor, testified that he was port officer of the port of Nassau, and that for thirteen years he had acted as surveyor of wrecked and injured vessels. He testified that he could not at that time describe the injuries to the vessel, but that they were accurately set forth in a report made October 25, 1878, which was not received in evidence.

Smith, who was an engineer, testified that he had been familiar with steamships for many years, and had been engaged in repairing their machinery. The following is his description of the condition of the machinery : “I found her at anchor, afloat. I discovered the main steam pipe ship joint drawn out, so far as I can now remember, ten or twelve inches. I found in the fire room that the leg of the port boiler had forced its way and cracked the boiler through about eight or ten inches, right under the front part of it. The safety-valve escape pipe was crushed flat against a beam of the upper deck. I also observed that the globe valve ■of the donkey pump was cracked in two. These were all the injuries pointed out to me in the machinery, engines and boilers by the chief engineer. I could see that the cracked boiler had started from its position. Q. What did you discover, by the said examination or survey, to be the condition and seaworthiness of the said steamship, with reference to her prosecuting her voyage ? A. I discovered that, from the injuries I have just explained, the ship was not in a fit condition, or seaworthy, for prosecuting her voyage.”

He further testified that the vessel could not have been permanently repaired at Nassau, for the lack of machinery, foundries, and facilities; that the boilers, engines, and machinery •could not have been repaired without taking them out; and that no facilities existed at Nassau for doing that work. He also stated that the marine railway at that port was not strong enough to take up the Cleopatra.

The divers testified that they found the keel ground down to the garboard streak for a long way amidships ; at one place forward it was cut nearly through, so far that they regarded her back as broken; and that they brought up pieces from the keel as large as one of their arms, and several feet long.

November 26, 1878, a second survey was made by Gamblin, Lightbourne and Finlayson, who were appointed by the United States’ counsel. Gamblin described the condition of the vessel as about the same as on the first examination, and testified that in his judgment the cost of making permanent repairs would be equal to her value when repaired. Lightbourne testified : “ On the second examination, we found, by the aid of water glasses, after the ship had been careened, that in several places the keel was cut down to the garboard. Divers were also sent down. The breast hooks were slightly started. The lodging and hanging knees were gaged, bolts being loose, and some of them broken. The between-deck stanchions had been moved, bending the iron straps and starting strap bolts. As far as I recollect, two beams were broken off in the clamps in the engine room on the starboard side, and a lower clamp short across the grain on the port side. Several tree nails had started inwards, and I recollect sending them out with a hammer. Twenty-second interrogatory: Was or was not the said steamship in a condition fit to prosecute her voyage ? Was she, or not, seaworthy ? What do you say as to whether or not the back was broken ? Defendant’s counsel objects to the last line of that interrogatory, as calling for a conclusion, and as leading. Objection overruled. Defendant excepts. Answer. I do not think she was seaworthy. She had the appearance of her back being broken.”

He also testified that the cost of making permanent repairs would have been almost equal to the value of the steamship after it had been repaired. Finlayson, the other surveyor, died before his evidence was taken.

George H. M. Allen, a ship carpenter for over forty years, who-had been employed by C. & P. Poillon, and had been their foreman since 1863, testified that he had assisted in repairing the vessel in 1878, and that in June, 1880, he examined her at Baltimore. He said the vessel was hogged about fourteen inches, and described at great detail many imperfections in the ship, and a result of his evidence is that the ship had been badly damaged and was of but little value. Mr. William D. Dickey, a mechanical engineer, who had been superintendent of a ship yard for eight years, testified that he had assisted in putting in the new boilers and machinery into the Cleopatra in 1878; that in June, 1880, he examined her, with Mr. Allen, at Baltimore. He describes with great particularity the defects of the boilers and machinery, and the result of his evidence is that the boilers and machinery were very greatly damaged, and not of much value. Gregory M. Mullen, a witness called in behalf of the plaintiff, testified: “I made a measurement with a rule of the exact hog of the vessel, when she was on the dry-dock in Baltimore, and I put it to be twenty-six inches, exactly. I measured from the garboard streak to the outer edge of the keel.”

The learned counsel for the appellant, in his brief, characterizes the evidence of Gamblin, Lightbourne and Smith, as willfully false and fictitious. We find nothing in the record to justify this. On the contrary, the agent of the defendant at Nassau, Mr. Samuel O. Johnson, who was called as a witness in its behalf, testified: “ I was acquainted with all of them. Lightbourne, Gamblin and Finlayson have been called by me, and at my suggestion, on surveys. ' I know nothing derogatory to their characters.”

Nor do we find anything in the testimony of Mr. George H. M. Allen, which justifies the assertion that he “ went to see the vessel in Baltimore for the sole purpose of finding her a subject for abandonment.”

As against the evidence of these witnesses, the defendant produced testimony to the effect that the vessel was not seriously injured, and that it might have been repaired by the expenditure of less than one-half of its valuation, deducting one-third from new for old. The subsequent history of the Cleopatra does not seem to be inconsistent with the theory that she was a constructive total loss. She remained in the harbor at Nassau until February 23, 1880, one year and four months after the stranding, when she was sold by public auction to Charles Winternitz & Sons, of Baltimore, Md., dealers in old iron and machinery. She was first offered for sale February 10, .1880, by the auctioneer, at $4,000, but no bids being received, the sale was adjourned until February 23d, when the ship was sold for 220 pounds. Between that date and May 18, 1880, she was temporarily repaired at Nassau at an expense of $858.06, and on the latter date sailed for Baltimore, where she arrived on the 25th of the same month. Between the latter date and December 15,1880, she was repaired at Baltimore, at an expense of $5,484.37, and on the date last named she was sold for $14,000, and a vessel valued in the trade at $6,000. The learned counsel for the appellant cites in support of his argument upon this branch of the case many English cases and authorities to the effect that a ship cannot be abandoned as a constructive loss unless it is so damaged that it cannot be rendered navigable again, except at a cost greater than her repaired value. It is only necessary to say of this class of authorities that they do not express the rule of this state, nor the rule to which these litigants bind themselves by the policy. Under this state of the evidence, the question was a fair one for the jury, and we are not inelined to disturb the verdict upon the ground that it is contrary to the weight of evidence.

The defendant called Nathan B. Ferrets, who was interested with Winternitz & Sons in the purchase and sale of the vessel. He testified to its condition in February, 1880, when lying at Nassau, and that he purchased her February 23, 1880, for the above-mentioned firm. He also testified to the amount expended at Nassau in repairs, and to the amount expended in Baltimore for the same purpose, and that “ the last I knew of her she was for sale in Baltimore.” Ou the cross-examination the plaintiff was permitted to show by this witness that he paid 220 pounds for the vessel at the auction sale, and that December 15,1880, Charles Winternitz & Sons exchanged her for a vessel called the Falcon, valued in the trade at $6,000, and for $14,000 in cash and notes. It is urged by the appellant that evidence of the price obtained for the vessel was not competent Undoubtedly it would not have been competent for the plaintiff to have given evidence of the price obtained for the vessel at a private sale made more than two years ago after the stranding. Roe v. Hanson, 5 Lans., 304; Flannagan v. Maddin, 81 N.Y., 623; Peo. ex rel. Mayor v. McCarthy, 102 id., 630, 639;2 St Rep., 546; 2 Whart Ev., § 1290. But the defendant had by this witness given evidence of the condition of the vessel when purchased at Nassau; of the amount expended on her in that harbor, and the amount expended in repairing her at Baltimore. The purpose of this evidence was to show that the vessel was of such value that it could not be regarded as a constructive total losa On the cross-examination it was competent to show the amount for which the vessel was sold at these dates, for the purpose of enabling the jury to judge what weight should be given to the evidence of this witness bearing upon the value of the ship. It may be noted in this connection that Samuel O. Johnson, sworn in behalf of the defendant on commission, testified, in speaking of the cost of the vessel and repairs at Nassau, “ The purchase and repairs, I was informed, amounted to about $5,000.

Was a legal abandonment effected? As before stated, the owners gave the defendant written notice of abandonment on the 18th of December, 1878, in which the plaintiff did not join. It is now asserted that the owners having mortgaged the vessel, and the insurance being payable by indorsement to the mortgagee, they were without power to make a legal abandonment. The mortgage is in the ordinary form, and contains in form an absolute convey» anee of the title, with a defeasance. It recites that it is made to secure the payment of forty bonds of $500 each, with interest, and that when they are paid the mortgage shall be void. The mortgage further provides : “ And, until default shall have been made by the parties of the first part in payment of said bonds, the parties of the fiz’st part shall be permitted to possess and use the said steamship and appurtenances, and to repair and renew the same, and to take and use the income thereof, and apply the same to the necessary current expenses and the purchase of necessary machinery and equipments, or dispose of the same for the legal uses of the mortgagors in any manner not inconsistent with this mortgage.”

It provides that, in case default shall be made in the performance of any of tlie mortgagors’, covenants, the mortgagee may .take possession of the vessel, and sell or dispose of the same at public or private sale. The mortgagors covenanted that they would take the ship insured for at least $25,000, and assign the assurances to the mortgagee as additional security. A legal ■abandonment cannot be effected unless the person who assumes to make it has at the time of the loss the power to make a legal transfer of the property abandoned. 2 Pars. Mar. Ins., 119; 2 Arn. Mar. Ins. (6th Ed.), 956. In Hunt v. Royal Exchange Assurance, 5 Maule & S., 47, it was held that, where an insurance was .effected by part of the owners, they might make a legal abandonment for all of the joint owners. In Chesapeake Ins. Co. v. Stark, 6 Cranch, 268, it was held that an agent who procured an insurance for his principal, and who abandoned the subject of the insuz’ance, must, in the absence of evidence that he was without authority, be presumed to have had authority to make the abandonment. In Gordon v. Massachusetts F. & M. Ins. Co., 2 Pick., 249, 260, a vessel was insured in the name of the plaintiff, who was the owner. Afterwards, he executed an absolute bill of sale of the ship, which contained no defeasance. By the instrument the title to the property was not to revest in the plaintiff upon the performance of any condition. It was shown, however, on the trial, that the bill of sale was intended as security for the payment of debts due from the owner to the transferee.. It was held that by virtue of the absolute transfer the plaintiff had divested himself of the legal title to, and dominion over, the property; could transfer none, and could not abandon it to- the izasurers. In Bidwell v. Northwestern Insurance Co., 19 N. Y., 179, the defendant insured a vessel on account of Crocker, the owner; the loss, if any, payable to Bidwell, the mortgagee. It was stated in the policy that there were no other liens upon the vessel. A loss occurred, and it turned out that there were two prior mortgages on the vessel. It was held that the insurance was of Crocker, the owner, upon the vessel, and not of Bidwell, upon his interest as mortgagee of Crocker’s equity of redemption, and that the mortgagee could not recover on the policy. In the case at bar the insurance was of the interest of the owners, not of the interest of the mortgagee.

In Younger v. Gloucester Insurance Co., 1 Sprague, 236; affirmed 2 Curt., 322, it was held that the master of the vessel has not, by virtue of his office, authority to abandon her to the underwriters. In all the cases the right to abandon turned on the power of the person tendering abandonment to transfer title to the subject of the insurance to the insurer. In the case at bar the owners had the undoubted right to transfer the vessel to the insurer, and therefore could effect a legal abandonment of her. In addition, the owners procured the insurance for the mortgagee, who subsequently, March 12, 1879, notified the defendant that the owner’s notice of abandonment, of .December 18, 1878, was given with his authority, and that he ratified and confirmed it. This brings the case within the principle of Chesapeake Insurance Co. v. Stark, supra. It appears in this case that June 20, 1878, the owners mortgaged the vessel to Joseph K. Murray to secure the payment of $6,000, and June 21, 1878, to Murray to secure the payment of $4,000, both mortgages falling due September 14, 1878. These mortgages are not in the case, and we are ignorant of their terms, nor do we know that they were unpaid when the vessel was stranded.

Was the abandonment timely ? November 26,1878, the second and final survey was made, and a notice of abandonment was served December 18, 1878. The case does not disclose how frequently mails were transmitted between Nassau and New York, nor whether there was telegraphic communication between those ports, although it appears inferenti ally from the letter of Murray, Ferris & Go., of November, 15, 1878, put in evidence by the defendant, that Savannah was the nearest and most convenient telegraph station. Chesapeake Insurance Co. v. Stark, Chief Justice Marshall, speaking for the court, said : “ The law is settled that an abandonment, to be effectual, must be made in reasonable time; but what time is reasonable is a question compounded of fact and law, which has not yet been reduced to such certainty as to enable the court to pronounce upon it without the aid of a jury. Certainly, the delay may be so great as to enable every man to declare, without hesitation, that it is unreasonable, or the abandonment may be so immediate, that all will admit it to have been made in a reasonable time; but there may be such a medium between these extremes as to render it doubtful whether the delay has been reasonable or otherwise. If it was a mere question of law which the court might decide, then the law would determine, to a day or an hour, on the time left for deliberation, after receiving notice of the loss. But the law has not so determined, and it, therefore, remains a question compounded of fact and law, which must be found by a jury under the direction of the court.”

The defendant asked the court to decide, as a matter of law, that the abandonment was not made within a reasonable time, but made no request that any question of fact involved in that issue be determined by the jury, thus leaving the court to determine all questions and inferences of fact arising from the evidence bearing on this question. The facts, and inferences from them, having been found against the defendant, it is not apparent that the question of reasonable time was erroneously determined by the court.

It is urged that the court erred in not dismissing the complaint because of the plaintiff’s failure to use all reasonable endeavors for the safety of the vessel. Whether the plaintiff and the owners used reasonable efforts for the safety of the vessel was an issue of fact, but neither the court nor the jury was asked on the trial-to determine this question either as one of fact or of law, and it cannot be raised for the first time on appeal.

We think the defendant is not in the position to raise the question that the proofs of loss served on it are insufficient. The following are the provisions of the policy:

“ Proof of loss to be authenticated by the agent of the company, if there be one at the place where such proofs are taken. * * * And, in case of loss, such loss to be paid in thirty days after proof of loss and proof of interest in the said-.”

When the proofs were served, the defendant did not object to them on the ground that they were not authenticated by its agent, nor for any insufficiency in their form, but the claim was disputed by the defendant on the ground that it was not liable for a constructive total loss. If the defendant then intended to stand on the defense that the proofs were defective, it should have given notice of the defects claimed, so that they could have heen corrected. Karelsen v. Sun Fire Office, 45 Hun, 144; 9 St. Rep., 831; 2 May Ins., § 469.

The defendant read in evidence three letters written by Murray, Ferris & Co. to their agents at Nassau, T. Darling & Co.,— one dated October 31, 1878; one dated November 2, 1878; and another dated November 15, 1878 ; also, two letters from Murray, Ferris & Co., to the captain of the Cleopatra—one dated October 31, 1878, and the other dated November 2,1878. The plaintiff was permitted to read in evidence, over the defendant’s objection that they were incompetent, irrelevant, and immaterial, two letters from T. Darling & Co. to Murray, Ferris & Co.,—one dated October 24, 1878; the other, October 25, 1878; and also a letter from the captain of the Cleopatra to Murray, Ferris & Co., dated November 5, 1878. The letters introduced by the respective parties all related to the circumstances of the stranding and the extent of the loss, and formed the whole of a connected correspondence between Murray, Ferris & Co., their- agent, and the captain of the lost ship, and they were competent. By reading these letters all together, and in the order of their dates, they explain one another, and furnish a clearer account of the situation than can be obtained by reading only a part of the letters. The letters received by Murray, Ferris & Co. disclosed what information they had when they wrote letters introduced by defendant.

The defendant pleaded in its answer, and proved on the trial, as a counterclaim, three promissory notes given by Murray, Ferris & Co. to the defendant, and held by it The first was for $301.25, given December 21, 1877, due December 24, 1878, for the premium on a policy on the steamer San Jacinto; the second, for $901.25, given September 16,1878, due' September 19, 1879, for the premium on the policy in suit; the third, for $721.25, given November 16, 1878, due November 19, 1879, for the premium on a policy on the steamer Herman. The policy provides: “And, in case of loss, such loss to be paid in thirty days after proof of loss and interest in the said-, (the amount of any note or notes ■given this company for premiums, if unpaid, and all other indebtedness, being first deducted.”)

The plaintiff consented on the trial to the deduction of the amount of the note given for the premium on the policy in suit, and it was deducted, but the court refused to allow either of the ■other notes as a counterclaim. The first note was due when this •action was begun, and we think it should be allowed, as against the claim. The plaintiff is an assignee of Murray, Ferris & Go., and stands in their shoes, and has no right to recover any amount beyond that which Murray, Ferris & Go., could have recovered on the policy. The third note was not due when this action was begun, and was not a counterclaim. The amount due on the second note at the time of the trial was $542.25, and it should have been ■deducted from the amount due on the policy as found by the jury. The judgment should be reversed, and a new trial ordered, with ■costs to the appellant, to abide the event, unless the plaintiff stipulates, within twenty days after service of notice of the order to be entered on this decision, to deduct from the verdict $524.25 ; but if the stipulation is given the judgment is affirmed, without costs in this court to either party.

Van Brunt, P. J., and O’Brien, J., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Leo Stirn, App’lt, v. Hans Hemken et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed October 13, 1893.)

    Partnership—Limitation op bight op cbbditob to accounting by pirm.
    Where a firm is dissolved and a new one, formed by some of its members, ■continues the business, in the absence of evidence that the new firm assumed the obligations of the old firm or reaped any benefits under a contract made by it, an accounting under such contract should only be allowed ■up to the time of the dissolution of the old firm.
    Appeal from interlocutory judgment directing an account to be ■made by the defendants to the plaintiff relative to the importation •and sale of goods named in a certain contract made by defendants with the plaintiff in January, 1888.

      Charles Strauss, for app’lt; Blumenstiel & Hirsch, for resp’ts.
   Per Curiam.

This action was brought to compel - defendants ■to account under an agreement by which they, under the firm name of Hemken, Slayton & Go., bound themselves to pay commissions on certain goods to be imported and sold. The agreement was for a term of five years, and was dated January 30, 1888. The defendants, having immediately thereafter imported and sold the goods therein mentioned, rendered an account in March, 1888, for plaintiff's share of the profits, and paid him the •amount, informing him at the same time that the firm would discontinue dealing in such goods. Subsequently, and in September, 1889, the firm dissolved by the retirement of Toepken, one of its members, and thereafter the remaining partners formed a new firm under the name of Hemlcen & Slayton, and continued the business until 1890, when Slayton retired, and the defendant Hemken thereafter conducted the business in his own name. Upon such facts, the trial judge decided that plaintiff was entitled to an accounting, but limited the date of the accounting to September, 1889, which was the date of the dissolution of the firm with which the contract was made; and it is from such limitation that, this appeal is taken, the appellant contending that he was entitled to have an accounting from each and all of the defendants for the entire period of five years. The difficulty with this contention, however, is that there is no proof in the case that subsequent to. March, 1888, any of the articles mentioned in the contract were imported or sold by the defendants. But, apart from this, we think the trial judge properly limited the account to the date-when the firm was dissolved. The fact that another firm was-organized did not impose upon such firm all the obligations of a former firm with which some of its members may have been connected. Of course,, there are cases which are authority for the position that had the new firm assumed the obligations of the-contract, or if it had been proven that they continued the importation and sale of these goods, thus reaping the benefits under the-contract, some basis might have been laid for an accounting beyond the date of the dissolution of the first firm; but, in the absence of such evidence, we think that the conclusion reached by the trial judge was as favorable to the plaintiff as the facts warranted.

The judgment appealed from should therefore be affirmed, with costs.

O’Brien, Follett and Parker, JJ., concur.


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    In the Matter of the Application of The Metropolitan Elevated Railway Co.

      (Supreme Court, General Term, First Department,

      Filed October 13, 1893.)

    Condemnation proceedings—Default.
    After several adjournments of the hearing before commissioners in condemnation proceedings on account of the failure of the landowner to. appear, the commissioners proceeded to take testimony on the statement of the company’s counsel that he had informed the landowner’s counsel that the matter had been adjourned to that afternoon and the company would then proceed with its proof, and that no answer was returned, and a nominal award was thereafter, made. Held,, that under these circumstances a motion to open the default was properly denied.
    Appeal by Hyman Israel from an award and report of commissioners, awarding six cents compensation for the easements taken from the property, No. 694 Sixth avenue, for the use of the. respondent’s elevated railroad in Sixth avenue, and from order confirming said report.

      Kurzman & Frankenheimer (Esek Cowen and John Frankenheimer, of counsel), for app’lt; Edward C. James, for resp’t.
   Follett, J.

This proceeding was begun September 16, 1889, and July 7, 1890, an amended petition was filed. December 2, 1890, the appellant filed an answer, and March 12, 1891, an order was granted, appointing commissioners to appraise the compensation which the respondent should pay to the appellant for the property taken, from which order no"appeal has been taken. On March 21,1891, the date fixed in the order for the first meeting of the commissioners, they met, and took the oath prescribed by the statute, at which meeting the appellant was represented by counsel. The hearing of this and other like proceedings was adjourned to March 26,1891, with the understanding that the commissioners, would hear the proceedings in numerical order, and that, when they were ready to proceed with the respondent’s case, both sides should have notice. September 28, 1892, the commissioners gave the attorneys for the respective parties notice that they would hear the appellant’s case October 3, 1892. On that date the commissioners met, and the counsel for the respondent attended, but the counsel for the appellant did not attend, but sent a note requesting the adjournment until December. The commissioners adjourned the proceedings until the next day, and one of them notified the appellant's counsel, who agreed to be present, but he did not appear. The respondent appeared by counsel. The commissioners then adjourned until October 5th, when the counsel for the respondent appeared, but no one appeared in behalf of the appellant. It was then stated that an agreement had been made between the counsel that the matter should be adjourned until October 11th, to which date an adjournment was had, on which day counsel for the respondent appeared, but there was no appearance for the appellant. The hearing was then adjourned to October 13th. When the commissioners met, counsel for the respondent appeared, but there was no appearance by the appellant. The matter was then adjourned until the afternoon of that day. It was then proved before the commissioners that in the morning of that day the counsel for the respondent gave the counsel for the appellant notice that the matter had been adjourned until half past one of that day, and that the railroad would then proceed with its proof, and that the counsel for the appellant made no reply. On that date the commissioners took the evidence, and on the 18th of October, 1892, signed an award that the appellant was entitled to receive six cents. Thereafter, a motion was made for the confirmation of the report. On the hearing of this motion, counsel for the appellant appeared, and asked to have his default opened, and that he be permitted to try the case before the commissioners. The special term refused to open the default and confirm the award. On looking over the record, we are unable to find any valid excuse for the appellant’s numerous defaults, and we think that he made no case for being allowed to open his default, and try the case before the commissioners. Unusual facilities were offered by the commissioners to the landowner to present his evidence, if he had any, but this he refused to do. We think the special term correctly held that the landowner had not excused his default. There is no evidence in the record which shows that the appellant sustained more damages than were awarded. e The award and order should be affirmed, with costs.

O’Brien and Parker, JJ., concur.


author: Merwin, J.

text:
    Samuel W. Davis et al., App’lts, v. Seth Howard et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 8, 1893.)

    1. Fraudulent conveyance.
    In an action by judgment creditors to set aside as fraudulent against creditors a deed of real estate and a bill of sale of personal property, both dated November 38, 1887, from defendant S. to his son E., and also a general assignment for the benefit of creditors from S. to F. dated December 4, 1888, it appeared that the deed included S’s “home farm,” and nearly all his other land, but the larger portion of this last was reconveyed to S. on November 1, 1888, and passed to the assignee. E. was an only son and prior to 1873 had been in his father’s employ several years, his father owing him $1,300; he wished to move west, but his father, who was then rich, wished him to stay and it was agreed between them that E. should stay, move on the home farm, and assist in carrying on all the farms as long as needed, and that S., in consideration thereof and of the $1.300, would convey him the home farm and personal property thereon. E. fulfilled his part of the agreement and claimed that the conveyances to him were given in payment thereof. The deed was not recorded until December 4, 1888, through neglect of E’s attorney. Defendants claimed that the land, other than the home farm, was conveyed to E. in trust, for the purpose of raising money thereon for S. and that because of his failure to do so, he reconveyed it. Held, that a judgment dismissing the complaint should be sustained,
    2. Trial—Findings.
    Where a request to find presents more than one proposition, the court is not bound to analyze it and pass upon the several parts separately.
    Appeal from a judgment entered in Madison county on 27th June, 1892, dismissing the complaint, with costs.

      M. J. Shoecraft and C. H. Dunning, for app’lts ; John E. Smith, Joseph Mason and A. N. Sheldon, for resp’ts.
   Merwin, J.

This is an action in the nature of a creditor’s bill, brought by thé plaintiffs as judgment creditors of the defendant, Seth Howard, to set aside as fraudulent against creditors a conveyance of real estate from Seth Howard and wife to the defendant, Edwin A. Howard, dated November 28, 1887; also a bill of sale of personal property from Seth Howard to Edwin A. Howard, dated November 28, 1887; also a general assignment for the benefit of creditors from Seth Howard to the defendant, Franklin I. Howard, dated December 4, 1888. It was alleged in the complaint that each of these transfers was made with intent to defraud creditors. It was found at special term that there was not any such intent

The deed of November 28, 1887, included the home farm so called of 110 acres and two swamp lots and five acres from a lot known as the Lily lot, and also included about two hundred acres of other lands, being substantially all the real estate Seth Howard then held. This latter part, however, was reconveyed by Edwin A. to Seth on November 1, 1888, and passed to the assignee. That left in the hands of Edwin, the home farm and accompanying small lots and the personal property, which the plaintiffs, by this action, seek to reach. Their judgments were recovered after the assignment.

Edwin A. was the only son of Seth, and prior to 1872 he'had been in his father’s employ for several years, and his father then owed him for services and property purchased about the sum of $1,800, and he was contemplating moving with his family to a western state. This, his father and mother did not want him to do. His father was then abundantly solvent, and owned several farms besides the home farm. Thereupon, as the evidence tends to show, and as the special term in substance finds, it was verbally agreed between them that if Edwin would give up his arrangements to move west and would remain at home and go on to the home farm, and live in the house thereon, and with his wife would assist the father in carrying on all the farms as long as he should desire, or should need their services, performing such services as they could, in and about the management of the farms and boarding the help, he, the father, in consideration of such services and of the indebtedness then existing to the son, would convey to the son free from incumbrances the said home farm and accompanying small lots, and sufficient, stock, tools and other personal property to properly cany it on ¡ that in pursuance of this arrangement Edwin gave up his western plans, moved with his family into the house on the home farm, and he and his wife performed the services as required by the agreement from the spring of 1872 to the fall of 1887, and in all things upon their part performed the agreement; that said Seth up to the fall of 1887 received the avails of all the farms, except what was furnished for the support of Edwin and his family; that the deed in question, so far as it covers the said real estate, and the bill of sale, were given and received in performance of said agreement. It is also found that such services and indebtedness were full consideration for the property so transferred. There is evidence that tends to sustain this conclusion.

The deed was not recorded until December 4, 1888. It however appears that the fact of the conveyance was not concealed by Edwin, but was known to many persons; that he left it with the attorney who drew it and directed him to place it on record, but through his neglect it was not done. He was all the time in the occupancy of the property, and Seth from the time of the deed ceased to receive the proceeds or control the management. The failure to record the deed was a circumstance to be considered on the question of intent, but was not conclusive.

The fact that the debt to Edwin standing alone might, to some extent, be barred by the statute of limitations, does not make its payment fraudulent. Livermore v. Northrup, 44 N.Y.,107; Hale v. Stewart, 7 Hun, 591.

It has been held in cases somewhat similar to this, that the owner of real estate could be compelled to specifically perform a parol agreement which had been fully performed by the other party. In Kenyon v. Youlen, 53 Hun, 591; 25 St. Rep., 299, decided by this court, a parol agreement between the owner of a house and lot and the defendant and another party, by which the owner, in consideration that the defendant and her associate would move onto the premises and take care of the owner during the remainder of her life, agreed to convey or devise to them the premises1 was held to be enforceable, the same having been fully performed by the defendant and her associate. A similar doctrine was held in Dill v. Harbeck, 17 St. Rep., 607. If Edwin was equitably entitled to the property, the creditors of the father have-lost nothing by the transfer. If the services and prior indebtedness were substantially the equivalent of the property .transferred, and there was no intent to defraud, the creditors have no good ground for complaint.

The plaintiffs further claim that the deed of November 28, 1887 was wholly void as against creditors upon the ground that, as to the balance of the real estate not covered by the agreement of 1872. It was made in trust for the grantor Seth Howard and so within the provisions of § 1 of title 2, chap. 7, part 2 of the-Revised Statutes, 4 R. S., 8th ed., 2590. The facts upon which his claim is based are those alleged in the defendants’ answer. It is there stated that the health of Seth Howard was at the time of the deed impaired from age and sickness and he was liable to-attacks of sickness during which he would be unable to transact business ; that the lands other than those covered by the agreement of 1872 were conveyed to Edwin in trust to enable him if he could, to negotiate a loan on mortgage of the property and which he agreed to endeavor to do, and out of the moneys so obtained pay a mortgage of $1600 which was then upon the lands covered by the agreement of 1872 and which as between said Seth and Edwin said Edwin was bound to pay, and the balance of the moneys so to be loaned he would pay over to Seth or apply them upon the debts of Seth as he should direct; that if he could not procure such loan he would reconvey the premises to Seth, and if he did obtain the loan would reconvey subject to the loan mortgage and until such reconveyance he would manage the premises gratuitously for said Seth; that Edwin was unable to make the loan referred to and reconveyed the premises to said Seth. This reconveyance was on November 1, 1888. The claim of the- appellant is that the deed as to the property in trust was void, and that the deed being void as to part of the property, was void as to the whole.

Taking the trust as alleged, it was for the purpose of raising money to pay the debts of Seth. The latter had a right to raise money if he could by mortgage for that purpose. It has been held that if a voluntary grantee of an insolvent grantor in_ pursuance of a verbal understanding at the time of the deed give a mortgage to secure the payment of specific debts of the grantor the mortgage is good. Rover Wheel Co. v. Fielding, 101 N. Y., 504.

In Russell v. Winne, 37 N. Y., 591, which is relied on by appellants’ counsel for the proposition that the deed, if void as to part of the property was void as to. the whole, a chattel mortgage had been given to secure one debt, and the dealings of the parties as to one class of chattels covered by the mortgage were of such a character as to indicate an intent as to those to hinder and delay creditors, and it was held that a fraudulent, intent as to a part of the instrument vitiates the whole. The court, however, recognizes the existence of a class of cases where it has been held that a part of an instrument, of itself valid, and not depending upon •other parts which are invalid, may be enforced. In the present case that part of the deed complained of had no necessary connection with the rest; the transactions were distinct and independent of each other. The trust, if any, was abandoned, and the property restored before the general assignment and before the plaintiffs obtained their judgments.

In the complaint no issue is presented or allegation made as to any trust. The issue there tendered is- upon the intent in making the several instruments. That question is by statute a question of fact and not of law. Sec. 4, title 3, chap. 7, part 2 of ¡Revised Statutes ; 4 ¡R. S., 8th ed., 2593. Whatever, therefore, there is in the case on the subject of a trust is to be considered as evidence simply on the issue of intent. It should not, under the circumstances of this case, be said as matter of law that the trust, if improper, made the whole deed void.

There are in the case some circumstances which, taken by themselves, are of somewhat doubtful character. Taking, however, the evidence as a whole, and in view of the better opportunity which the trial court had for determining the proper weight to be given to much of the evidence, we are not prepared to say that the conclusion of the trial court upon the issues presented is not sustained by the evidence.

As to the general assignment, the appellants claim that upon the undisputed .evidence it was made for the purpose of preventing parties, whoo were then bringing suits against the assignor, from getting their pay in full upon j udgment and execution, and that, therefore, it was made with the intent to hinder and delay creditors and therefore void. Admitting the promise, the conclusion does not follow. The assignor had a right to make an assignment and that would necessarily operate to prevent parties from enforcing judgments subsequently obtained. It has been held in numerous cases that threats by an insolvent to make a preferential assignment did not charge him with an intent to defraud his creditors. Farwell v. Furniss, 67 How. Pr., 188 and cases cited. Stamp v. Heroich, 8 St. Rep., 446; Evans v. Warner, 21 Hun, 574. The cases in regard to threats by a solvent debtor do not apply. Here the assignor was insolvent and the assignment was without preferences. The conclusion of the special term that it was not made to defraud creditors is sustained by the evidence and should not be disturbed.

Our attention is called to the action of the court upon numerous requests of the plaintiffs for findings. The remarks of the court in Davis v. Leopold, 87 N. Y., 620, would seem to apply, that where a request to find presents more than one proposition, the court is not bound to analyze it and pass upon the several parts separately. We find no material error in the refusals to find. The main question was one of fact and that was fully met Ho sufficient reason is apparent for disturbing the result It follows that the judgment should be affirmed.

Judgment affirmed with costs.

Hardin, P. J., and Martin, J., concur.


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    James T. Watson, Resp’t, v. Elizabeth P. King, surviving executrix, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 8, 1893.)
    1. Contract —Construction.
    In an agreement between executor and A., who claimed an interest in certain lands held by deceased in his own name, it was provided “ that the party of the second part (A.) is to be equally interested with the parties of the first part, in the avails of any sales hereafter made of the lands now unsold, and one half of the money that may be received on the sale of the lands unsold, after deducting all charges on said property, is to be equally divided between the parties thereto,” and it was subsequently provided that A. should make no charge for time or services in making sales of any part of the property, or for taking care of the same. Held, that the expression “ avails of any sales ” was intended to include all the proceeds of the property, including rents.
    2. Same—Parties.
    In an action on such agreement brought by the assignee of A. against the surviving executor, the defendant claimed that the administrator of G., a deceased executor, was a necessary party defendant, because she, in her individual capacity, had a debt against A. before the transfer under which plaintiff claims, and that such debt might be held within the cause of the agreement, which provided for the deduction of “ all taxes and assessments and ail liabilities to the parties of the first part, or either of them, as executors or otherwise, and charges on said property.” Held,, that the liabilities referred to included only those arising out of the management of the joint estate, and did not include an individual debt to one executor, and that the administrator of G. was not a proper party to the action.
    Appeal from a judgment entered in Oswego county on 29th August, 1892, upon the report of a referee in favor of the plaintiff for $691.10 damages, besides costs.
    Action for an accounting.
    The controversy in this case is over an agreement made the 14th July, 1873, between the executors of the last will and testament of Abraham P. Grant, deceased, of the first part, and John W. P. Allen, of the second part. The plaintiff is the owner of whatever rights John W. P. Allen had on the 15th June, 1877. The defendant is the sole surviving executor of’ the will of Grant.
    Grant died in December, 1871, leaving a will, in and by which he devised all his property, real and personal, to his three children, Mary B. Grant, Josephine L. Hosmer and Elizabeth P. King, in equal shares, and appointed them, together with William F.. Allen, his executors, with full power to sell and convey, lease exchange or otherwise dispose of any of his real estate upon such terms and conditions as they might deem proper at public or private sale. John W. P. Allen had business relations with Grant during his lifetime, and after his death differences arose between Allen and the executors of Grant relative to the interests of Allen in certain real estate, the title to which was in Grant at the time of his death, and in which Allen claimed to have an interest. Thereupon, after some negotiations, the agreement in question was executed. It is under seal, and it was conceded at the trial that the executors as such had full power to make it
    By the first clause of the agreement, the parties of the first part released and discharged the party of the second part from all claims which they as executors had against him, or which was due from him to Grant in his lifetime for money lent or advanced to him or for his benefit, including all accounts and notes against him and also the amount due on a certain real estate contract. By the second clause, the party of the second part released and discharged the executors and the estate of Grant from all claims and demands of every name and nature and released all his interest in a certain mortgage given to Grant and in certain real estate. The third clause was as follows :
    “ Third. It is mutually understood between the parties hereto, that the said parties are equally interested in the following contracts, executed either by the parties of the first and second part, or by the said Grant in his lifetime and the said party of the second part, to the following parties, to wit: describing fifteen contracts.
    “ And it is further understood and agreed, that the said party of the second part is to be equally interested with said parties of the first part, as executor and executrices and as aforesaid, in the avails of any sales hereafter made of the lands now unsold of the Murray property so-called, being property deeded to Abraham P. Grant by Hamilton Murray, and being in lots one and two, Hamilton’s Gore, East Oswego.
    “ One-half of the moneys received upon the said contracts, and one-half of the money that may be received on the sale of the lands unsold and above referred to, after deducting all taxes and assessments and all liabilities to the parties of the first part, or either of them, as executors or otherwise, and charges on said property, is to be equally divided between the parties hereto share and share alike.”
    It is then provided that certain other specified real estate, the title of which was held by Grant, is the property of the party of the second part; also that the latter is to have part of a certain block without being liable to pay anything therefor, and in consideration thereof releases to the executors a certain other portion of said block. It is also provided that “the party of the second part is to make no charges for time or services in making sales of any part of the Murray property herein referred to, or for looking after and taking care of the same.
    Immediately after the execution of this agreement the executors opened an account with John W. P. Allen, containing upon the one side entries of all moneys received by them on the joint contracts referred to in clause three and for sales of the Murray land as well as rents and profits of said lands between the date of the agreement and the commencement of the action, and upon the other side entries of all moneys paid out by them in connection with the property represented in the account. The referee finds that from the date of the agreement to the commencement of the suit, the executors of the Grant estate received on joint account under the agreement the sum of $6,154.75; also certain items on a contract and bond and mortgage not charged in joint account to the amount of $216.76, making a total received of $6,371.51; and that the executors under and pursuant to said agreement paid out on joint account the sum of $3,881.30, leaving a balance to the credit of joint account of $2,490.21, one-half of which as he finds belongs to the plaintiff and the other half to the defendant. From the plaintiff's half the referee deducts the sum of $792.90 for payments received by Allen, and this leaves a balance of $452.10, for which, with interest, judgment is ordered in favor of plaintiff. The evidence shows that in the entries making up the sum of $6,'371.51 above referred to, there are items for rent or income from the Murray property, referred to in the third clause of the agreement, to the amount of $830.75.
    At the request of the defendant, it is found that, on the same day the present action was commenced, the plaintiff brought another action against the said heirs of A. P. Grant, for the partition of the property mentioned in clause three of the agreement of July 14, 1873, in which the plaintiff claimed to be a joint tenant with them of said property, and that said last mentioned action was based upon said agreement of July 14, 1873 ; that said action was duly brought to trial and a judgment rendered therein dismissing the complaint with costs, which judgment was duly docketed in Oswego county on June 16, 1886 ; that in said action the court held and decided that said John W. P. Allen under said agreement of July 14, 1873, acquired an interest in the land contracts named in clause three and an interest in the avails of sales that might thereafter be made of the Murray property, but no direct interest in and no title whatever to the said lands.
    It also appears that on the 26th August, 1873, John W. P. Allen "gave to Mary B. Grant his note for $185 on a business transaction wholly outside and independent of the agreement of 14th July, 1873, and for a personal matter between them. Upon this note the administrator of Mary B. recovered a judgment against Allen’s executors on the 28th February, 1883, for $286.93.
    By stipulation between the parties it is agreed that the only questions to be reviewed are, first, the plaintiff’s right to rents and profits of the Murray lands, and second, the right of the defendant to have the administrator of Mary B. Grant brought in as a party defendant.

      John C. Churchill and George W. Parkhurst, for app’lt; J. B. Higgins, for resp’t.
   Merwin, J.

1. It is evident that by the agreement of July 14, 1873, all the controversies between the parties up to that time were designed to be adjustéd. Mutual releases were given as to prior transactions. The title to a quantity of real estate had been taken by A. P. Grant in his own name, m which Allen claimed an interest, and the agreement recognizes the fact that Allen had an interest Divers items are declared to be the property of Allen, and as to other items Allen releases all his interest to the executors. Besides these, there remained the contracts and the Murray property, specified in the third clause of the complaint. All the contracts had been executed- by Allen, together with Grant, in his lifetime or with his executors thereafter. It was declared that in these contracts Allen and the estate of Grant were equally interested.

In the same connection it was stated that Allen and the estate of Grant were equally interested in the avails of any sales thereafter made of thedands then unsold of the Murray property. A division of the moneys is then provided for, “ after deducting all taxes and assessments and all liabilities to the parties of the first part, or either of them, as executors or otherwise, and charges •on said property.” The manner of dividing the balance is not disputed. It is subsequently provided that Allen should make no charge for time or services in making sales of any part of the Murray property, or for looking after and taking care of the same. It was, therefore, contemplated .not only that Allen might make sales but would be interested in the care and management of the property, which would not ordinarily be the case unless he was also interested in the rents or income depending largely upon the care and management. It is also to be noticed that the deductions to be made from the gross amount of receipts were, to a large extent, such as would ordinarily be first payable from the rents or income. It is hardly to be presumed that the pai'ties intended that the estate should have credit for all the current expenses without accounting for the current income. The fact that the executors opened a joint account and entered therein, as part of the joint fund, the rents, is a significant circumstance on the question of the intention of the parties. If Allen was entitled to one-half of what the property sold for, no reason is apparent for excluding him from any interest in the income prior to the sale, •or for giving him any different interest in the Murray property from that which he had in the land contracts. Taking all the provisions of the contract together, in the light of the surrounding circumstances, we are of the opinion that the expression “ avails ■of any sales ” was intended to include all the proceeds of the property. The finding of the referee that the rents were received on joint account under the agreement, as part of the common fund, and to be accounted for as such, should not be disturbed. It is not claimed that the judgment in the partition suit is a bar. It was between different parties.

2. The defendant claims that the administrator of Mary B. Grant is a necessary party defendant because she in her individual capacity had a debt against J. W. P. Allen, before the transfer under which plaintiff claims, and that such a debt, although having no connection with the property, is, or might be held to be, within the clause of the agreement in question which provides for the deduction of “ all taxes and assessments and all liabilities to the parties of the first part, or either of them, as executors or otherwise, and charges on said property.” It was held by the referee that the liabilities there referred to included only liabilities arising out of the management of the joint estate, and did not include an individual debt to one of the executors arising out of an entirely distinct and -independent transaction. This construction seems to be quite reasonable. It may well- be said that the liabilities designed to be included were only those that were “ charges on said property.” Besides, the deductions there specified were to be made from the gross receipts before division. So that, if the construction suggested by the defendant is correct, the individual debt of Allen would be paid from the gross fund, thus making the Grant estate pay one half of Allen's individual debt. This would seem fatal to the defendant’s theory of construction.

It is not alleged or proved that the administrator of Mary B. Grant makes any claim on this fund or under the agreement. There would therefore be no basis for an interpleader. Crane v. McDonald, 118 N. Y., 654; 30 St. Rep., 98. The parties to the first part in the agreement were the executors as such. It is so alleged in the complaint and admitted by the answer. If by virtue of some provision of the agreement, some one of the executors was to be individually benefitted, it would.be the case of a contract made in the name of one for the benefit of another. By § 449 of the Code, an executor or administrator or a trustee of an express trust may sue without joining with him the person for whose benefit the action is prosecuted. In Mead v. Mitchell, 3 Abb. Pr., 106, it is said of the case of a trustee of an express trust, that “ if he can sue, it follows that he may be sued, and that the cestui que trusts are before the court by representation. ”

The subject matter of the agreement was the estate of A. P. Grant, and the property it held for the benefit of Allen. The right of action of Allen, or of his successor in interest for an accounting, was only against the executors as such. There is no controversy with the administrator of Mary B. Grant as he makes no claim. In the absence of any such claim by him, I fail to see how he can be said to be a necessary party.

It follows that no error is apparent and that the judgment should be affirmed.

Judgment affirmed, with costs.

Hardin, P. J., and Martin, J., concur.


text:
    The People ex rel. LeRoy J. Brooks, Resp’t, v. Charles H. Watts, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 8, 1893.)

    1. Excise—Test oath.
    The provision of § 3, chap. 163, Laws of 1890, that the test oath should he taken “before an officer duly authorized to take the acknowlment of deeds,” was directory and did not prevent its being taken before any officer authorized to administer oaths.
    3. Same—Defects in bond or oath of commissioners.
    The defect or omission, if any, in regard to the bond or oath required of an excise commissioner, at most, makes such commissioner’s title defeasible and affords cause for forfeiture of the office, but does not cretae a vacancy.
    3. Same.
    Statutes requiring an oath of office are usually directory in their nature, and unless the failure to take the oath by the time prescribed is expressly declared ipso facto, to vacate the office, the oath may be taken afterwards, if no vacancy has been declared.
    Appeal from a judgment entered in Chenango county on March 20, 1893, upon a verdict at the Chenango circuit directed by the court in favor of the relator and against the defendant; also from an order denying a motion on the minutes for a new trial
    The action is brought to oust the defendant from the office of excise commissioner of the town of Norwich. The relief granted by the judgment is that the defendant “is guilty of usurping and intruding into and unlawfully holding and exercising the office of excise commissioner of the town of Norwich, Chenango county, N. Y., and that he be ousted and excluded therefrom.”

      John W. Church and W. B. Leach, for app’lt; Howard J, Newton, for resp’t.
   Merwin, J.

At the annual town meeting of the town of Norwich on the 17th day of February, 1891 the relator, LeRoy J. Brooks was duly elected to the office of commissioner of excise. This was shown by the record of the proceedings of the town meeting signed by the officers who presided at the meeting and by the town clerk and filed in the office of the town clerk. 2 R. S., 8th ed., 885, § 19. Matter of Baker, 11 How. Pr., 431; People v. Zeyst, 23 N.Y., 141.

On the 23d February, 1891, the relator took and filed with the town clerk the constitutional oath of office. He also at same date executed and filed a bond in accordance, as he claims but which defendant disputes, with the provisions of chap. 444 of the Laws of 1874 as amended by chap. 459 of the Laws of 1886. On the 13th July, 1891, the relator filed with the town clerk an oath in form as required by § 3 of chap. 163 of the Laws of 1890. This was sworn to before the town clerk. The defendant claims that the town clerk did not have authority to administer the oath and that it was filed too late. Another oath sworn to before a notary public was filed on the 3d June, 1892. This, the defendant claims, is in form defective and was filed too late.

The relator, upon filing his oath and bond on the 23d February, 1891, entered upon the duties of the office and so continued until the 6th June, 1892. On the 4th June, 1892, the town board passed a resolution appointing the defendant excise commissioner in the place of the relator. The defendant under the resolution qualified and on the 6th June took possession of the office and was so in possession at the time of the commencement of this action.

The resolution of the board recited that the relator was elected in February, 1891 and “thereon took the general oath and filed his bond as required by law, but failed to further qualify by making and subscribing the test oath as required by'g 3, chapter 163, Laws of 1890 ;” that the oath filed July 13, 1891 was not taken “before ah officer duly authorized to take acknowledgment of deeds,” as in the act of 1890 provided; that the oath filed June 3, 1892 was not in time. It was then resolved, that, the office being vacant by reason of the failure of the relator to qualify to said office as by law provided, the board appoint the defendant to fill the vacancy occasioned by such failure.

By the judgment appealed from, the relator is not declared entitled to the office. The only question here therefore is whether there was then any vacancy existing which the town board had a right to fill. The relator was in fact in possession of the office and in the performance of its duties and had been for a year and upwards.

The defendant claims that a vacancy existed because 1, the test oath required by § 3 of chap. 163 of the Laws of 1890, was not filed in time and was not taken before the proper officer, and 2, because the bond filed in pursuance of the provisions of chap. 444 of the Laws of 1874, as amended by chap. 459 of the Laws of 1886 was not in sufficient an amount. The oath was taken before the town clerk and he was authorized to take it. Ohap. 172 of Laws of 1838.' Chap. 569 of Laws of 1890, § 56. The provision that the oath should be taken “ before an officer duly authorized to take the acknowledgment of deeds ” was directory and did not prevent its being taken before any officer authorized to administer oaths. Ex parte Heath, 3. Hill, 49 ; Canniff v. Mayor, etc., 4 E. D. Smith, 430; People v. Stowell, 9 Abb. N. C., 456; 19 Am. & Eng. Encyl., 144. The act did not specify any particular time within which the oath should be filed by officers thereafter elected. It provided that “ a failure to take the oath in this section prescribed shall disqualify any one from h'olding or debar any one from continuing to hold, any office or position mentioned in this act.” The oath in proper form was in fact filed long before any proceedings were taken to declare a vacancy. In Dillon on Municipal Corporations, 4th ed., § 214, it is said, “ statutes requiring an oath of office and bond are usually directory in. their nature ; and unless the failure to take the oath or give the hond by the time prescribed is expressly declared ipso facto, to vacate the office, the oath may be taken or the bond given afterward, if no vacancv has been declared.” See also Matter of Taylor, 25 Abb. N. C., 143.

The bond was in the sum of $2,000. The defendant claims that if should have been in the sum of $2,205, that being double the amount of the excise moneys of the previous year as indicated by the report of the supervisor. This objection to the bond is not raised in the order appointing the defendant and no vacancy is declared on this account. On the contrary it is there stated that the relator “filed his bond as required by law.” The bond as given appears to have been accepted by the supervisor and filed. It ran to the supervisor in accordance with the statute and presumptively he fixed the amount.

According^ to the current of authority in this state, the defect or omission, if any in regard to the bond and oath, at the most made the relator’s title defeasible and afforded cause for forfeiture of the office but did not create a vacancy. That, it is said, could only be effected by a direct proceeding for that purpose. Cronin v. Stoddard, 97 N. Y., 274; Horton v. Parsons, 37 Hun, 45; People, etc., v. Board, etc., 59 id., 206; People, ex rel. etc., v. Criney, 91 N. Y., 635.

Ho authority is cited showing that in such a case as this the town board had authority to make an adjudication of vacancy.

But it is urged that the rule upon the subject of vacancies has been changed by the provisions of § 51 of the “ town law,” which provides that the officer elected shall, before he enters upon the duties of the office, and within ten days after he shall be notified of his election, take the constitutional oath of office and such other oath as may be required by law, and that a neglect or omission to take and file such oath, or a neglect to execute and file within the time required by law arn^ official bond or undertaking, shall be deemed a refusal to serve, and the office may be filled as in case of vacancy.

By the statute in force before the passage of the town law, it was provided that every office should become vacant by refusal or neglect to take the oath of office within the time required by law, or to give or renew any bond within the time prescribed by law. 1 R. S., chap. 6, title 6, § 34. 1 R. S., 8th ed., 402. It may be doubted whether there was any design to change the rule on the subject in the revision of 1890.

The town law did not take effect until March 1, 1891. That was after the relator was elected and had entered upon the duties of the office. It is not to be presumed that the town law was designed to be retroactive. Goillotel v. Mayor, etc., 87 N. Y., 443.

In view of the fact that the proper oath was filed long before the town board acted, and that no question was made about the bond, I fail to see any good reason for disturbing the judgment.

Judgment and order affirmed, with costs.

Hardin, P. J., and Martin, J., concur.


author: Newburger, J.

text:
    William Ottman & Co., Resp’t, v. Joseph E. Hoffman, App’lt.

      (City Court of New York, General Term,

      Filed November 27, 1893.)

    1. Boards of trade—Liability of trustee—Pleading.
    A complaint which alleges that the defendant is a trustee of a domestic corporation organized under chap. 228, Laws of 1877; that such corporation had no capital stock; that plaintiff sold goods to said corporation, and that there was still due therefor a specified sum, states facts sufficient to constitute a cause of action.
    3. Same—Statutes.
    Chap. 228, Laws 1877, as to the liability of trustees, was revived by the Stock Corporation Act of 1892.
    Appeal from judgment in favor of plaintiff.

      M. A. Kursheedt, for resp’ts; Leo. G. Rosenblatt, for app’lt.
   Newburger, J.

The complaint herein alleges, that the Importers and Traders Club was a domestic corporation, carrying on business in the city o$ Rew York, and organized under chap. 228, of the Laws of 1877, and that said corporation was organized without and never had any capital stock.

That the defendant was a trustee of said corporation, and that the plaintiff sold to the said corporation goods,' and that there was still due and owing to the plaintiff the sum of $3,110.51.

The defendant demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action.

The demurrer was properly overruled.

The complaint stated sufficient facts to constitute a cause of action against defendant, as a trustee.

The revival and reinstatement of § 3, of chap. 228, of the Laws of 1877, is not precluded by § 31 of the Laws of 1892.

Chapters 577 and 688 were both passed and took effect on the same day, namely May 18¡- 1892, and must be considered as simultaneous statements, and as no law was passed subsequent, affecting the question, the law of 1877, as to the liability of trustee was revived by the stock corporation act of 1892.

For these reasons, the judgment appealed from must be affirmed, with costs.

Van Wyck and McCarthy, JJ., concur.


text:
    Nina H. Dearing, Resp’t, v. Alma Y. Pearson, App’lt.

      (City Court of New York, General Term,

      Filed November 27, 1893.)

    Appeal—Case—Settlement.
    The action of the trial justice in settling a case on appeal, upon conflicting affidavits as to the facts cannot he reviewed.
    Appeal from order denying motion for a resettlement of a proposed amendment to a case on appeal.

      Smith, Bowman & Close, for app’lt; David Leventritt, for resp’t.
   Newburger, J.

This is an appeal from an order made by the trial justice herein, denying the defendant’s motion for a resettlement of a proposed amendment to the case of appeal from the judgment.

This court held in Greene v. Shute, 26 St. Rep., 114, that the action of the trial justice in settling á case on appeal cannot be reviewed where there is a dispute as to the facts.

In this case it appears that there were a number of conflicting affidavits as to the facts and the trial justice determined it.

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

Van Wyck and McCarthy, JJ., concur.


text:
    William Frankfurter, Resp’t, v. The Home Insurance Co., App’lt.

      (City Court of New York, General Term,

      Filed November 27, 1893.)

    1. Insurance (mrb)—Waiver.
    An agent or manager who has the power to issue and cancel policies and indorse consents has power to waive any condition in the policy.

      .3. Same—Other insurance.
    Where the agent or manager of an insurance company, upon proper application, declines to indorse on the policy the statement that other insurance has been procured, on the ground that it was not necessary, this constitutes a waiver of the company's rights under a provision of the policy that it should be void if additional insurance was procured.
    3. Pleadings—Amendment on trial.
    The court has power to amend the complaint so as to increase the amount to that proven on the trial.
    Appeal from judgment in favor of plaintiff, entered upon verdict.

      David Leventritt, for resp’t; Richards & Heald, for app'lt.
   Newburger, J.

This is an appeal from a judgment of the lower court entered upon a verdict of the jury rendered by direction of the court, at the close of plaintiff’.s testimony, and after defendant’s counsel stated that he should not put in any testimony.

It is conceded that a policy of insurance was issued to the plaintiff’s assignor; that fire destroyed the property which was covered by the policy; that the company received and retains the premiums paid by the insured.

It is claimed by defendant, however, that other insurance having been obtained without defendant’s consent endorsed upon the policy, the policy is void and the plaintiff is not entitled to recover.

Whatever rights the defendant had under the provision of the policy which provided that the policy should be void “if any additional insurance was procured on the property covered by the policy,” were waived by the defendants.

It appears that one of the "plaintiff’s assignors called on the manager of defendant and requested the said manager to endorse on the policy that other insurance bad been procured, when .said manager replied that it was not necessary.

This, under the rule laid down in Pechner v. Phœnix Ins. Co., 65 N. Y., 195, was clearly a waiver.

An agent or manager who has the power to issue and cancel policies and endorse consents certainly has the power to waive any condition in the policy.

The proof clearly shows a compliance on the part of the plaintiff’s assignors with the terms and conditions of the policy.

The court had a perfect right to amend the complaint so as to increase the amount to that proven on the trial.

The defendant did not object to the motion on the ground of surprise, and as the amendment did not change the cause of action, the motion was a proper one.

The judgment must therefore be affirmed.


text:
    Abey Gundlin, App’lt, v. The Hamburg American Packet Co., Resp’t.

      (City Court of New York, General Term,

      Filed November 27, 1893.)

    Jurisdiction—Residence.
    An action against a foreign corporation was contested on the ground that plaintiff was a nonresident. The only, evidence as to his residence-was a statement in his deposition that he resided two months in this city before going to Milwaukee, and the testimony of his counsel that plaintiff was in Hew York when the action was brought. Meld, that the question of residence was properly submitted to the jury, and their decision would not be disturbed.
    Appeal from judgment in favor of defendant, entered upon verdict.

      Abraham H. Sarasohn, for app’lt; Wheeler, Cortis & Godkin., for resp’t.
   Newburger, J.

This is an action brought to recover damages for the loss of one of six bundles of baggage which the plaintiff claims he brought over on one of the defendant’s steamships.

On the trial it was contended on the part of the defendant, first, that the goods when lost were in the custody of the "United States custom officers; and, second, that the plaintiff was a nonresident at the time the action was commenced, the defendant being a foreign corporation.

On the trial plaintiff did not appear, but his testimony taken under a commission was read.

The only evidence as to this residence was his own statement, that he had resided two months in Cherry street prior to going to Milwaukee, and that of his counsel, who testified that the plaintiff was in New York when-the action was brought.

The trial justice properly submitted the question of residence to the jury, and there are no exceptions in the case that would warrant us in disturbing the verdict.

The judgment appealed from must be affirmed, with costs.

McCarthy, J., concurs.


text:
    Bernard B. Christ, Resp’t, v. Bradbury C. Chetwood, App’lt.

      (City Court of New York, General Term,

      Filed November 27, 1893.)

    Hew trial—Newly discovered evidence.
    A new trial on the ground of newly discovered evidence will not be granted after the judgment has been affirmed by two appellate courts.
    Appeal from order denying motion for a new trial on the-ground of newly discovered evidence.

      Herman G. Loew, for resp’t; John G. Ritter, for app’lt.
   Newburger, J.

This action was brought against the defendant for the receipt, conversion and wrongful detention and withholding from plaintiff of moneys received and collected by defendant as an attorney belonging to plaintiff which he, defendant, appropriated to his own use.

In 1877 the plaintiff, who was then about fourteen years of age, with his sister, were the owners of a bond and mortgage on real estate in the city of New York.

In that year defendant was retained as attorney to institute-foreclosure proceedings, and he brought such an action, and in that action the property was sold and bought in by the sister of the plaintiff.

In 1879 the property was again sold and the purchase price was received by the defendant as attorney.

The answer of the defendant admits the receipt of the money, but sets up a number of defenses, including statute of limitations, settlement with the plaintiff’s sister and a counterclaim for services rendered.

This case was tried in April, 1892, and resulted in a verdict for the plaintiff, and against the defendant, for the sum of nine hundred dollars ($900).

An appeal was then taken to the general term of this court, which affirmed the judgment entered upon the verdict

The defendant then appealed to the general term of the court-of common pleas, which affirmed the judgment April 5, 1893,

Subsequently, and in May, 1893, defendant moved for a new trial on newly discovered evidence.

This motion was heard and denied, and from the order entered therein, this appeal is taken.

This motion comes too late. It would be a great injustice to the plaintiff.

It is not the practice to grant new trials, upon newly discovered evidence, after the judgment has been affirmed by two appellate courts.

Independent, however, of the practice there is no merit in the application.

The' motion was properly denied, and the order appealed from must be affirmed, with costs.

McCarthy, J., concurs.


text:
    John Duggan, Resp’t, v. The Third Avenue Railroad Co., App’lt.

      (City Court of New York, General Term,

      Filed November 27, 1893.)

    Witness—Credibility—Charge.
    In an action for negligence the court charged the jury as follows: “ You have a right to believe or disbelieve the plaintiff entirely, unless he is corroborated; if he is corroborated you have a right to disbelieve him." Held, error; that the credibility of a witness is a question for the jury, and th, charge took from them the right to determine whether his conduct brought him within the rule as to an interested witness.
    Appeal from judgment in favor of plaintiff, entered upon verdict.

      Louis J. Grant, for resp’t; Hoadly, Lauterbach & Johnson, for app’lt.
   Newburger, J.

The plaintiff, on the night of April 18,1888, while in the employ of defendant and while engaged in his duties, tripped on a rail, and broke his wrist, which injury plaintiff’ claimed was caused by defendant’s negligence.

The defendant denied any negligence on its part, and claimed that plaintiff’s injuries were Caused by his own negligence.

The case was submitted to the jury and resulted in a verdict for the plaintiff in the sum of $500.

From the judgment entered thereon, and an order denying a motion for a new trial, this appeal is taken.

In his charge to the jury, the learned trial justice said, “ You have a right to believe or disbelieve the plaintiff entirely, unless he is corroborated; if he is corroborated, you have a right to disbelieve him,” to which portion of the charge an exception was ■duly taken.

The credibility of a witness is a question for the jury, Honegger v. Wettstain, 94 N. Y., 252; Ct. N. Bank v. Diefendorf, 123 id., 200; 33 St. Rep., 389, and therefore the charge of the judge took from the jury the right to determine as to whether his conduct was such as to bring him within the rule that the jury were at liberty to accept or reject the testimony of an interested witness.

Without examining any of the other questions submitted by appellant’s counsel, we think the judgment for the reason above stated should be reversed and a new trial granted with costs to abide the event

Yah Wyck and McCarthy, JJ., concur.


text:
    Frederick Lyster, Resp’t, v. Alma Y. Pearson, App’lt.

      (City Court of New York, General Term,

      Filed November 27, 1893.)

    1. Service—Designation oe person to receive.
    A general designation, authorizing a person named to receive service of summons or process for one year from its date, is sufficient to authorize service on such person, notwithstanding any secret limitations on his authority.
    2. Default—Conditions.
    On opening a judgment taken by default the court has the right to impose the payment of costs as a condition.
    Appeal from order opening a default and vacating judgment on conditions.

      Secor & Page, for resp’t, Smith, Bowman & Close, for app’lt.
   Newburger, J.

This is an appeal from an order opening a •default, and vacating the judgment entered thereon on condition that defendant pay plaintiff's attorney fifteen dollars costs and serve his answer within six days.

It is contended on the part of the appellant that the judgment ■should have been absolutely set aside without any conditions, for the reason that there was no personal service on the defendant

It appears that service of the summons herein was made on one Mortimer, a person who had been designated by defendant for that purpose.

It is claimed, however, by defendant that said Mortimer was not to use such designation, nor file the same with the county clerk, unless the defendant was travelling out of the United States.

The designation, however, is general, and it authorizes Mortimer, for one year from its date, to receive service óf summons or ■process in any action or proceeding in any court, and the service having been made under such designation, the judgment was properly entered herein.

It was, therefore, a judgment by default, and the justice at special term in opening such default had a right to impose the conditions he did.

The order appealed from must be affirmed, with costs.

McCarthy, J., concurs.