text:
    Daniel W. Tallmadge et al, App'lts. v. Phineas Lounsbury Treasurer of the Republican League of the U. S., Resp't.

      (New York Superior Court,

      General Term,

      Filed January 3, 1893.)

    1. Principal and agent.
    The mere fact that certain members of a committee of the Republican League expressed satisfaction with certain blanks exhibited to them and said they ought to be printed.is not sufficient to authorize the person suggesting such forms to order the printing of the same.

      2. Same.
    The League cannot be held liable for work done on the ground that its president acted toward third parties as one clothed with full power to make any and all contracts on its behalf, where the order for such work was not received from the president, but from another person.
    3. Same—Ratification.
    The mere fact that the blanks were headed with the name and symbol of the League and were received and mailed from its headquarters is insufficient to show actual or constructive knowledge of the work which was done, in view of the fact that the League was merely to distribute literature furnished by the national committee; that the management of its affairs was in the hands of a committee, and that only two of the committee knew that the work was being done on behalf of the League.
    4 Same.
    There was no ratification of the unauthorized order, as plaintiff’s claim was never presented to the convention or the committee and it was not shown that the delegates knew of its' existence.
    Appeal from judgment dismissing complaint, entered on the report of a referee.
    The following is the report of the referee:
    Louis G. Raegener, Referee.—The plaintiffs, constituting the firm of Tallmadge & Martin, printers and. stationers, at the city of Hew York, claim that during the presidential campaign of 1888 they let certain premises at Ho. 64 Broad street, and that they furnished and distributed what has been termed herein “ Campaign .Literature ” and political printing, of the value of nearly $25,000 to the defendant, the Republican League of the -United States. All but $11,484.80, which is the amount here in suit, has been paid.
    The plaintiffs seek to maintain their claim upon several theories, the more important of which are; firstly, express authority received from the defendant through its campaign committee; secondly, the conduct of the president of the defendant, who, in his position, it is claimed, was allowed to hold himself out to the world as one in authority, and who, in such position, if not directly ordering the work, at least stood by, without protest, and with knowledge of the fact that plaintiffs claimed they were doing this work for defendant; and thirdly, ratification by the defendant of the acts of its campaign committee and president. We shall discuss these points in their order; and as, in our opinion, the issues involved are entirely questions of fact, it will not be necessary to discuss the law of the case.
    In order to intelligently understand the situation of affairs, it is necessary briefly to show the organization of defendant.
    The Republican clubs in each state belong to a state league; The state leagues compose the defendant, The Republican national League. The several state leagues send representatives to an annual convention of the national league and elect an executive committee, which is intrusted with the finances and general management of the affairs of the national league. In a general way the objects of the national league are stated to be the organization of clubs and leagues in the various states and territories and the dissemination of the principles of the Republican party.
    At a conference committee, held on July 11 and 12, 1888, it was deemed advisable that the executive committee appoint a campaign committee, and this was accordingly done, upon the following understanding or agreement with the Republican national committee. The national committee was to prepare and provide campaign literature, which the league was to distribute. The national committee guaranteed office expenses of the league to the extent of $1,000 per month. The campaign committee, from time to time, was to submit plans of organization and work, with the estimated cost thereof, and, if approved, the expense was to be paid by the Republican national committee.
    This campaign committee was accordingly appointed. It consisted of General W. W. Dudley, Wilbur A. Mott, W. W. Johnson and President James P. Foster and Secretary Andrew Humphrey, as ex-officio members. General Dudley was its chairman. He was also the treasurer of the national committee, but not a member of the league. This committee met but once, in the latter part of July, 1888. Ho minutes of its proceedings were kept. Ho resolutions were adopted, except it was agreed to meet on Wednesdays. After the formal meeting had adjourned, Ex-Senator Albert Daggett, who claims to have attended more or less to the details of political campaigns for about thirty years, showed some blanks and forms to some of the members, and an informal discussion took place concerning them.
    Mr. Daggett says he was directed to ll go ahead ” and have these blanks printed. This is not corroborated by a single person present at this meeting or at their informal discussion after the meeting had adjourned. President Foster says that he asked General Dudley to furnish the league with work and General Dudley replied that he would see that the blanks submitted were prepared and sent out. General Dudley, according to President Foster, further said that he had large quantities of literature at Washington, and would see that they were forwarded to the league. General Dudley says that the advisability and desirability of the use of these blanks were freely discussed, but that he desired no printing done for the league or himself at that time or any other time by plaintiffs’ firm or any other firm, and that he gave no orders to do any printing. One of the plaintiffs, Mr. Martin, testifies that he took all his orders from Mr. Daggett, whom he believed to be authorized by General Dudley, and in order to be certain that Mr. Daggett had the authority he claimed, he wanted to see something in writing from General Dudley. When, thereupon, General Dudley wrote to President Foster that Ex-Senator Daggett was authorized to represent him and that Mr. Foster might consult with him, this letter, on being shown to Mr. Martin, was satisfactory to him. General Dudley, called on behalf of plaintiffs, denies that he conferred any authority whatever upon Mr. Daggett, and swears that the latter acted merely as a messenger between Mr. Foster and himself.
    The executive committee held no meeting after July 12, 1888, and the sub-executive committee, to which the powers of the executive committee had been delegated, held but three meetings in 1888, one in February, one in June and one in September. In my view of the case, it is unnecessary to discuss the question whether the constitution empowered any executive or sub-executive committee or campaign committee to do this work. Suffice it to say that none of these committees ever exercised or pretended to exercise such power.
    •I am of the opinion that neither the campaign committee nor anyone else on behalf of the league authorized Mr. Daggett to have the work done by plaintiffs ; and even assuming that some one or several of the members of the campaign committee did say that these blanks ought to be printed, it would be preposterous to claim that this authorized Mr. Daggett to expend about $25,000 in the name of the league substantially as he saw fit. It is, therefore, evident that there was no express authority from the defendant to do this work.
    In discussing the second point, it is not necessary to argue the question whether or not President Foster did act toward third parties as one clothed with full authority to make any and all contracts on behalf of the defendant; nor is it necessary to argue the question whether the defendant, negligently or otherwise, allowed the president so to act. The undisputed testimony of one of the plaintiffs, Mi: Martin himself, is to the effect that he undertook this work upon the faitli of Mr. Albert Daggett, as the authorized representative of General Dudley, and that he relied upon General Dudley as the chairman of the campaign committee, as the treasurer of the national committee, and furthermore, as the representative, or, if I might use the term, as the paymaster of the Republican party. Therefore, from the plaintiffs' own testimony, it is very plain that they were not misled in any way by any appearance of power or authority on the part of the president of the league. In this connection, I am not unmindful of the fact that all the literature alleged to have been printed by plaintiffs for defendant had at its head the name and symbol of the defendant, and that quantities of it were received and mailed from defendant’s headquarters at No. 202 Fifth avenue, New York city. Yet, when we take into consideration that the league was merely to distribute literature furnished by the national committee, that the management of the league’s affairs was in the bands of an executive committee ; that this executive committee had legally or illegally delegated some' of its powers to the sub-executive committee, and possibly also to a campaign committee ; that these committees had no meetings after July, 1888, except the sub-executive committee, which met but once, in September ; that with the exception of President Foster and General Dudley there is no evidence that a single member of the executive, sub-executive or campaign committee knew of plaintiffs’ claim or knew that work was being done at No. 64 Broad street or elsewhere on behalf of the league, and that the president and secretary of the league were the only officers or committee men of the league who, after August 1, 1890, performed any active duties at league headquarters, it seems to me that the presumption of actual or constructive knowledge is overcome.
    A point was also made of the fact that the minutes of the sub-executive committee show that in February, 1888, $25,000 were appropriated for campaign work for the city of New York. It is claimed that this money was intended for such work as the plaintiffs did, and it is insinuated that this money could not have been raised by the league, except by just such work as that done by the plaintiffs. The evidence shows that the receipts of the league during 1888 were upwards of $20,000 outside of any income traceable to any work done by plaintiffs. It is true that the popular subscription blanks printed by plaintiffs brought upwards of $8,000 into the hands of President Foster, but all of this, and more too, was paid to plaintiffs. In a certain sense this might have been justifiable; yet Mr. Foster had no authority so to do and knew he had not, for he testified that he believed the Republican national committee owed this bill.
    Finally, assuming that Mr. Daggett, or possibly President Foster, were defendant’s agents and unauthorizedly contracted with plaintiffs, yet there cannot be a ratification by the principal without full knowledge of all the material facts. There is no evidence that plaintiffs’ claim was ever presented to the convention, the executive or sub-executive committee of defendant, which met after the work was begun and completed and before suit was commenced, nor even that the delegates to the convention of these committees were aware of the existence of such a claim.
    For the reasons stated, I am forced to the conclusion that whoever may owe the bill in suit, the defendant certainly does not, and I, therefore, believe the bill ought to be dismissed upon the merits with costs. Judgment accordingly.

      Nichols & Bacon, for appl’ts;

      Jas. A. Blanchard and Joseph G. Gay for resp’t.
   Per Curiam.

The judgment should be affirmed, with costs, for the reasons set forth in the memorandum of decision filed by the referee.

Freedman, Mo Ad am and G-ildersleeve, JJ., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    The People ex rel. Charles F. Allen, Resp't, v. Thomas E. Murray, Justice, App'lt.

      (New York Superior Court,

      General Term,

      Filed January 19, 1893.)

    1. Summary proceedings—Adjournment.
    A justice has no power to adjourn a summary proceeding to a future day on his own motion where an answer has not been filed by the tenant.
    3. Attorneys—Authority.
    The authority of an attorney to appear for a party in a district court is to be presumed.
    Appeal from an order entered October 17, 1892, under which a peremptory mandamus was issued, requiring the appellant, as justice of the district court of the city of New York for the eleventh judicial district, to make a final order in summary proceedings and to issue a warrant for the possession of certain premises.
    The following is the opinion of the special term:

      McAdam, J.—Assuming, for present purposes, that § 1382 of the consolidation act, Laws 1882, relating to actions in the district courts, applies to summary proceedings, and that an appearance by the landlord on the return day is necessary to prevent a dismissal of his proceeding, we must inquire whether the appearance by Mr; Secor was not sufficient to satisfy all legal requirements. Mr. Secor was an attorney and counsellor, admitted by the supreme court to practice law in all the courts of the state. In courts of record his authority would be presumed. Denton v. Noyes, 6 Johns., 296, followed as an authority in Vilas v. P. & M. R. R. Co.,, 123 N. Y., at p. 453; 34 St. Rep., 67. True, the rule never applied to justices’ courts, because there are no attorneys within the professional meaning of that term in these courts. Hughes v. Mulvey, 1 Sandf., 92; Fox v. Jackson, 8 Barb., 355; Sperry v. Reynolds, 65 N. Y., 179. There is another reason. Prior to the constitution of 1846, and the judiciary act of 1847 passed in aid of it, each court of record, even the old marine court, regulated the admission of its own attorneys, and had separate rolls on which appeared their honored names. In this manner the attorneys entitled to practice in each court were made known to its judges, see N. Y. Const. of 1777, art. 27, but these regulations never reached the justices courts, which seem to have been regarded as sort of “go-as-you-please” tribunals, in which anyone was entitled to practice, whether licensed to do so or not The power emanated from the client, not the court The cases cited, founded on the old rule, no longer apply to the district courts, in which attorneys are recognized as officers by force of express statute. The act of 1857, chap. 344, § 70, provides for an extra allowance of costs where an attorney is actually engaged in the prosecution or defense of the action, and by the Laws of 1862, chap. 484, it is not only a misdemeanor to practice in these courts without being admitted to the bar, but all the rules and regulations of the supreme court are made applicable thereto so far as the same can be made applicable, and those relating to attorneys and counsellors may well be so applied in all their rigor. This was evidently the legislative-intent, and effect must be given to it. See Newburger v. Campbell, 9 Daly, 102. The act of 1862, supra, was designed to effect a radical change by driving away from these courts a class of irresponsible, unlicensed practitioners, tolerated under the old rule, by substituting in their stead, under the new one, attorneys of the supreme court, whose office protected both court and litigants from all fear of imposition. It was an effort to elevate the tone, character and dignity of the district court by improving its surroundings. It was a much needed reform, and has worked well. When progress is made, its concomitants go with it; all look forward, not backward. Such being the present relation between the district court and supreme court attorneys, the justice, who knew Mr. Secor was an attorney, had no power to call upon him to produce a special authority to appear for Mr. Allen ; his office conferred that right. The tenant did not question Mr. Secor’s right to appear, and the justice was not called upon tq dispute it.

      The nature and extent of the remedy now applied for will next be considered. The distinction is, of course, to be observed between a direction to an inferior tribunal to act and a command by mandamus directing it how to act. Thus, mandamus may command the inferior tribunal to act and proceed to judgment, yet it will not, as a rule, prescribe what judgment to give. The mandate is that the officer proceed, adjudicate and exercise his judgment upon the questions of law and fact involved, leaving whatever error may be committed to be corrected on appeal after the decision is filed. While the determination of the inferior court upon the merits will not be controlled by mandamus, yet, if it has erroneously decided some question of law or of practice presented as a preliminary objection, and upon such erroneous construction has refused to go into the merits of the case, and there is no other remedy, mandamus will lie to compel it to proceed. Castello v. St. L. C. Ct., 28 Mo., 259. In People v. The Mayor, 10 Wend., 395, 397, Nelson, Oh. J., referring to mandamus, said that “ whenever a legal right exists, the party is entitled to a legal remedy, and when all others fail, the aid of this may be invoiced.” This case and others show that when a specific duty is imposed by statute on public officers, they may be compelled to execute it by mandamus. The office of the writ and its extent are well stated by Chief Justice Spencer in People v. Supervisors, 12 Johns., 415, and that is “to require the persons to whom it is directed to do some particular thing which appertains to their office or duty, and which the court issuing it supposes to be consonant to right and justice; and that if the party making the application has a legal right, and no other specific remedy, the writ generally goes.” The party aggrieved is bound to show as the foundation of the proceeding that the specific act sought to be coerced is the duty of the person against whom the writ is directed, and that such person has no discretion as to its exercise. The statute under which the original proceeding in this matter was taken provides that “ if sufficient cause is not shown upon the return day of the precept, * * * the justice must make a final order, awarding to the petitioner the delivery of the possession of the property.” Code, § 2249. The phrase “sufficient cause ” to the contrary, means some legal reason why the order should not be made, such as the filing of an answer creating an issue, or the discovery of objections fatal to the proceeding or the jurisdiction of the magistrate. In cases where no such impediment exists, the statute is mandatory that the justice “must” make the final order, and he has no discretion concerning it. While the justice had the right to take whatever time was needed to examine the papers to determine whether they followed statutory requirements, he had no power to unreasonably delay the proceeding, nor had he authority to adjourn it on his own motion, without the filing of an answer, or the consent of parties, Ahrens v. Burke, 63 How. Pr., 50, and all his proceedings taken after the return day of the precept are in consequence coram non judice and void, and the matter must be treated as if no such proceedings had followed. The writ of mandamus has been given to compel the entering of judgment where nothing remained but the mere ministerial duty of making the proper entry. Williams v. Saunders, 5 Cold., 60; Smith v. Moore, 38 Conn., 105. Indeed, in a case like the present, the signing of the final order might be considered as merely ministerial, corresponding in this respect with the duty of the clerk of a court of record in entering the judgment of the court, an act clearly enforceable by mandamus. Smith v. Moore, supra. The clerk could not, by adjourning the performance of the act for a week, or any other stated period, absolve himself from his statutory duty, nor could he then, by any act of his, declare the proceeding terminated and avoid his duty. There is no substantial difference between the case put and the one now before the court. The statute, as its title indicates, intended the proceeding to be “summary,” short, sharp, decisive, and the legislative purpose and intent must be respected. If an answer had been filed, or if objections had been made which necessitated an adjournment or required judicial examination, a case calling for the exercise of judicial judgment might have been presented, and a different question would have arisen; so in regard to motions to adjourn after issue joined. Code, § 2248. The tenant not having questioned Mr. Secor’s authority, there was no issue of that kind raised calling for decision, and the justice had no alternative but to obey the plain mandate of the law, by making the final order which the statute requires he shall make where no legal reasons exist to the contrary. The justice having neglected to perform the specific duty imposed by statute, the party making the application having a legal right to its performance, with no other remedy, and the question being one about which there was no discretion, mandamus, which is a remedial writ, will lie to compel the performance of the duty omitted, and this without infringing any of the elementary rules before referred to. Although of a quasi judicial nature, the act required was purely clerical or ministerial in its character, not calling for the exercise of judgment and admitting of but one result, which was that imposed and specifically pointed out by the statute conferring the authority to act, and as Judge Davies in People v. Willis, 5 Abb. Pr., at p. 212, held, the justice “not having performed a duty clearly enjoined upon him by law, a mandamus is the proper remedy to compel him to do so,” or otherwise there would be a complete failure of justice, the party aggrieved having no other remedy to obtain his legal rights. The relator is, therefore, entitled to a peremptory mandamus commanding the justice to sign the final order as of September 30, 1892, and to issue his warrant thereon in due form, Code, § 2251, that the relator may obtain the possession to which he is by law entitled.

      William H. Secor, for resp’t;

      William Allen, for app’lt.
   Per Curiam.

The relator is the owner and landlord of premises No. 259 West Forty-seventh street, in the 11th judicial district in the city of New York. On the relator’s petition a precept was issued, requiring a tenant to remove from the premises, or show cause before tlie district court for said district, on the 30th day of September, 1892, why the possession of the said premises should not be delivered to the landlord. The petition and precept met the requirements of the statute in both form and substance; and the precept was duly served upon the tenant. The controversy arises over what occurred in the court at the time the precept required the tenant to show cause, to wit, the said 30th day of September, 1892. At that time, one William H. Secor, for many years a member of the bar of the state of ISTew York, a frequent practitioner in said court,and personally well known to the justice of said court, arose and stated to the court that he appeared as attorney for the landlord in the proceeding under consideration. The justice demanded of said Secor that he show some proof of his authority to appear. Said Secor refused and failed to show the justice any evidence of his right or authority to appear in said proceedings, and moved for judgment and the usual warrant to dispossess the tenant for nonpayment of the rent; the said tenant, although present, having failed to file an answer as required by § 2244 of the Code of Civil Procedure. The justice, thereupon, on his own motion, adjourned the proceedings to the following court day, which was the third day of October, 1892, for the purpose, as stated by said justice, “ of enabling said Secor to produce some proof of his authority to appear for said landlord in said proceedings."

At the adjourned day, on October 3d, the tenant appeared in person; Secor did not appear, nor was the landlord present or represented by attorney; and thereupon, the justice dismissed the proceedings.

Upon the application of the landlord, supported by affidavits, this court thereupon made an order requiring the said justice to show cause why a peremptory mandamus should not issue, directing the said justice to issue a warrant for the possession of said premises pursuant to the prayer of the landlord’s petition. The moving affidavits and the order lo show cause were served both upon the justice and the tenant, but the tenant failed to appear. The justice appeared, submitted an affidavit substantially charging Mr. Secor, upon information and belief, with misconduct in prior cases, and claiming this to have been sufficient to call upon him for proof of his authority to appear in the proceeding in question, and a hearing was thereupon had which disclosed the facts above stated, as well as the additional fact that Mr. Secor had been fully authorized by the landlord to appear as he did, and finally resulted in an order granting the landlord’s application and commanding the justice to make the proper final order and to issue a warrant in conformity therewith. From this order the justice alone appeals. On the appeal it was conceded that the mandamus has been complied with, that the warrant has been issued and executed and that the tenant has acquiesced.

The facts being as stated, the substantial question presented by the appeal is, whether the said justice had power to adjourn the proceeding to a future day on his own motion and without an answer having been filed by the tenant. The power to adjourn is conferred by statute, viz. : § 2248 of the Code, and is to be exercised only at the time when issue is joined, at the request of either party, and upon proof that an adjournment is necessary to-enable the applicant to procure his necessary witnesses. If sufficient cause is not shown on the return of the precept, which includes a case in which no answer is filed by the tenant, the justice-under § 2249 must make the final order, and under § 2251 must-issue his warrant. These sections constitute substantially an incorporation into the Code of Civil Procedure of the provisions of a former statute which had been enacted.for the express purpose of giving to a landlord a summary remedy against a defaulting-tenant The remedy thus provided is not an action, but a. summary proceeding.

In a case arising under the former statute, Boller v. The Mayor, 40 N. Y. Supr., 523, in which, by the way, a counter affidavit had been filed, it was expressly held by this court at general term that in such a summary proceeding there is no power or jurisdiction in the justice to adjourn the hearing, except upon the-request of either party, and for the purpose of enabling the party applying to procure his witnesses, if that should appear to be-necessary. '

In Kiernan v. Reming, 7 Civ. Pro., 311, the same rule was; laid down and enforced upon the authority of Boller v. The Mayor, supra, in a case which had arisen under the present Code.

In Ahrens v. Burke, 63 How. Pr., 50, decided in 1881, the general term of the court of common pleas, as the appellate tribunal for the determination of appeals from district courts, expressly held that even in an action the justices of the district courts in the city of Hew York have no power to adjourn the case' without an answer having been filed on the return day.

And' in Deutermann v. Wilson, 15 Civ. Pro., 411, decided in 1888, the general term of the court of common pleas, in passing-upon the power of the clerk of a district court to adjourn the-court in the absence of the justice, expressly stated that the justice cannot adjourn the hearing of a summary proceeding without, an answer having been filed.

These four cases have never been overruled by the court of appeals, and consequently we find ourselves concluded by authority,, at least as far as summary proceedings are concerned.

True there are some cases which seem to lend color to the contention of the appellant, but they can be readily distinguished. Merwin v. Rogers, 24 St. Rep., 496, and Horton v. Auchmoody, 7 Wend., 200, were actions, and not summary proceedings, and the-question involved related to the personal liability-of the justice. In Brown v. The Mayor, 66 N. Y., 385, there was a request by the sub-tenant and consent by the landlord.

Some other cases hold that where the parties consent or do not-object to an adjournment, the jurisdiction is not lost. But it is-not necessary to enlarge upon them, because they do not apply. In the case at bar the landlord appeared by a duly authorized attorney,, consented te nothing, waived nothing, and insisted upon his right, to the final order and warrant in default of an answer by the tenant..

We also fail to see how the decision of Boller v. The Mayor, supra, can be criticised, as was done in Goff v. Vedder, 12 Civ. Pro., 358, by a reference to the decision by the general term of the supreme court, fourth department in People ex rel White v. Loomis, 2 Civ. Pro., 278.

The case last referred to presented a question as to the time a justice of the peace had in summary proceedings to render his final decision "after the submission of the cause to him, and it was held, the statute being silent in regard to it, the provision applicable to an action in the court of such a justice applied, and that under that the final decision should have been rendered within four days after the submission of the cause to him, and in coming to that conclusion the general statement was made that where .summary proceedings are instituted before a justice of the peace, all the provisions in respect to the mode of procedure in actions in justice’s courts apply to such proceedings, except as otherwise prescribed by statute.

In Boller v. The Mayor, it was held that the statute did prescribe that no adjournment should be had except as authorized by its terms, and this construction of the statute has never been disapproved by the court of appeals.

Other questions involved in the application for the mandamus have been so fully discussed by the learned judge who made the order appealed from, that further elaboration is unnecessary.

Suffice it to say that the justice had no power to adjourn the proceeding in default of an answer on the part of the tenant, that the authority of Mr. Secor to appear for the landlord was to be presumed, and that under the circumstances it was the duty of the justice to make the final order and issue a warrant in conformity therewith. And it further appearing on the motion for a mandamus that Mr. Secor in fact had had ample authority to appear for the landlord as he did, and that the tenant had nothing to say in opposition to the motion, the case was a proper one for a ■mandamus commanding the said justice to do what on the 30th day of September, 1892, he ought to have done.

The order appealed from should be affirmed, with fifty dollars costs and disbursements.

Freedman and Gtldersleeve, JJ., concur.


author: Lewis, J.

text:
    Eugene Mc Entee, Jr., Ex'r, App'lt, v. William B. Aris et al., Resp'ts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    Attachment—Affidavit.
    An attachment was granted upon the ground that defendants were , removing their property from the state to defraud creditors. The affidavits used were made by plaintiff’s agent and one B. and alleged that affiants had visited the store of defendants two days before and found them engaged in packing their goods with a view of shipping them to Massachusetts, and that they announced their intention of closing their business; that the packing was done by salesmen and shipping clerks, instead of by the latter as usual; one affiant asked to see one of the defendants, was informed that he was not in, but when he told the clerk he wanted to see him about renting property, he was immediately found, and told affiant that he wanted to sell the property as he intended to leave the city. The plaintiff’s debt was only $287, while defendants’ stock was large and nothing appeared tending to show that they were embarrassed. No reason was given why an affidavit was not made by plaintiff, and the agent did not swear that he did not know of any counterclaim. Held, that the attachment was properly vacated.
    Appeal from an order of the special county judge of Monroe county, setting aside and vacating a warrant of attachment granted by him against the property of the defendants on the papers upon which the order was granted.

      C. D. Eiehel, for app’lt;

      Horace Me Quire, for resp’ts.
   Lewis, J.

The attachment was granted upon the affidavit of the plaintiffs agent, Eugene McEntee, Junior, and the affidavit of Charles H. Barrett. The material allegations of the affidavits are that the defendants were indebted to the plaintiff in the sum of two hundred and eighty-seven and ten one-hundredths dollars for goods sold to them by the plaintiff; that they had neglected and refused to pay the debt; that the defendants had been engaged for three months prior to the making of the application for the attachment in the business of jobbers in boots and shoes in the city of Rochester ; that the affiants had visited the place of business of the defendants a day or two before making their affidavits, and found them engaged in packing their stock of goods with the view of shipping the same to the state of Massachusetts, and that the defendants announced their intention of closing their business in the city of Rochester; that the packing was being done by salesmen and shipping clerks, while such work was ordinarily done by shipping clerks only. The affiant Barrett stated that he called at the defendants’ place of business two days before making his affidavit, and inquired of one of the employees of the defendants for the defendant Aris, and was informed by the employee that Aris was not in, and that he did not know when he would be in. That he informed the employee that he wished to see Mr. Aris personally about renting some property of him. The employee then said he thought he could find Mr. Aris, and went out and remained about one minute, when Mr. Aris appeared, and upon Mr. Barrett stating to him what his business was, Mr. Aris stated that he was very anxious to sell the property, for the reason that he intended to leave the city. The affidavits abound in inferences, from what the affiants saw and heard, that the defendants were engaged in removing their property from the state with the intent to defraud their creditors. The affidavits failed to disclose from whom they derived their information, or what their informants told them. We do not think the inferences were justified from the facts stated in the affidavits. From the description given by the affiants of the manner of packing the goods, the defendants evidently had a stock of considerable value. The entire indebtedness of the firm, so far as appears from the affidavits, was the amount of the plaintiff’s claim, $287.10. Aris, it appears from Barrett’s affidavit, was the owner of other property besides the stock of goods. It is hardly conceivable that a firm having such a stock would pack and ship it out of the state for the purpose of avoiding the payment of so small an indebtedness. There is nothing in the affidavits tending to show that the firm was embarrassed or had any occasion to ship their goods away for the purpose of avoiding the payment of debts.

The facts stated in the affidavits are entirely consistent with innocent intentions on the part of the defendants in removing their stock of goods. The affidavits were also defective in failing to show that the plaintiff was entitled to recover the sum stated therein over and above all counterclaims known to him. The agent does swear that he did not know of any counterclaims. No reason is given why an affidavit stating that fact was not made by the plaintiff. A counterclaim for the full amount of the plaintiff’s demand might have existed within the knowledge of the plaintiff for aught that appears in the affidavits. They did not justify the issuing of the attachment, and it was properly vacated.

The order appealed from should be affirmed, with ten dollars costs, and disbursements of the appeal.

Dwight, P. J., and Macomber, J., concur.


author: Dwight, P. J.

text:
    The Northeastern Permanent Savings Bank & Loan Association, Pl'ff, v. Hiram L. Barker, Resp't, and George W. Duncan et al., Impleaded, App'lts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    1. Assignment—Mechanic’s lien—Priority.
    B. held a mortgage on the property of S., and when the latter applied to plaintiff for a larger loan, B. agreed that if S. would apply sufficient of the proceeds of plaintiff’s loan to reduce his mortgage to §700, he would satisfy it, and plaintiff’s mortgage, which was larger than the amount advanced, should stand as his security, and S. should give him an order or assignment of the fund still to become due on his mortgage to plaintiff as his buildings were completed. All this was done. S. absconded when his buildings were practically completed. Mechanic’s liens were filed, and . plaintiff began foreclosure of his mortgage. Held, that B. was entitled to receive payment of his debt from the surplus arising from the sale before the subsequent lienors.
    2. Same—Evidence.
    In such case, the objection to evidence of the paroi agreement between S. and B. on the ground that it was merged in the written order or assignment was properly overruled.
    Appeal by the defendants, Duncan and Hall, from a judgment of the county court of Monroe county entered on the findings and decision of the court

      J. J. Snell, for app’lts;

      D. Hays, for resp’t
   Dwight, P. J.

The decree was rendered in an action for the foreclosure of a mortgage given by one Silliman and wife to the plaintiff to secure the payment of $2,300, to be advanced in accordance with the rules and regulations of the plaintiff association, and upon which the sum of $1,200 had been actually advanced at the time the action was begun. The only issue joined in the action was between the defendant, Barker, and certain of his co-defendants, in respect to the relative priority of their several liens, subsequent to that of the plaintiff; and, that issue having been determined in the county court in favor of Barker, the case is brought into this court by the single appeal of the defendants, Duncan and Hall, co-partners and holders of a mechanic’s lien on the premises covered by the mortgage.

There is no substantial dispute in respect to the material facts as found by the court upon which the controversy arises. They ' may be briefly stated as follows : The defendant Barker held a mortgage on the same and other premises when the mortgagor, the defendant, Silliman, applied to the plaintiff for a loan or advance under the practice and methods of the loan associations, for a larger amount, to be secured by separate mortgages on the three parcels of land which were covered by the mortgage of Barker.

The application was granted on condition that the mortgage of Barker should be first discharged. Silliman thereupon entered into negotiations with Barker, which resulted in an agreement by which Silliman was to apply sufficient of the proceeds of the plaintiff’s loan to reduce the amount due on Barker’s mortgage to $700, when Barker should discharge his mortgage in full, and that for the balance of $700 the mortgage .now in suit, upon which only $1,000 was to be presently advanced by the plaintiff, should stand as Barker’s security ; that the advance subsequently to be made thereon by the plaintiff, as the buildings being erected on the premises should progress towards completion, to the extent of $700, and interest, should be made to Barker instead of to Silliman, and that to ensure such application of so much of the fund, Silliman should give to Barker an order upon, or assignment of, the fund to arise upon two of the mortgages, including that in suit, to the extent of $700. This agreement was carried into effect on the 15th day of July, 1891, by the execution by Barker of the discharge of his mortgage, on the payment to him of the amount due thereon less $700, and the delivery to him by Silliman of the order or assignment mentioned above, by which payment was directed to be made of the $700 to Barker instead of to Silliman, said sum being described as “ a part of the loan to me (Silliman) on said mortgages retained by said association until the completion of the houses on said lots.”

Of this order or assignment Barker on the same day gave due notice to the plaintiff.

Subsequently, and on August 20, 1891,. the plaintiff made a further advancement on the mortgage in suit of $200 to Silliman with the consent of Barker, making a total advancement of $1,200 on the mortgage of $2,300, and no further advancement was ever made thereon. At that time the building on the premises covered by that mortgage was substantially completed, an outlay of from $50 to $75 only being necessary to its entire completion. At about the same time the mortgagor, Silliman, being “financially embarrassed,” absconded from Rochester, where he had been residing, and has ever since been insolvent.

On the 10th day of September, 1891, the appellants Duncan and Hall filed their notice of lien for materials furnished for the building on the premises described in the complaint to the amount of $314.05.

Upon findings embracing the facts above stated the court below based conclusions of law to the effect that by virtue of the arrangement between the mortgagor Silliman and the defendant Barker, of July 15, 1891, the latter “ obtained an equitable lien on the premises described in the complaint,” second only to the lien of the plaintiff’s mortgage and superior to the liens of the other defendants herein, and that, after satisfying its own mortgage debt, the plaintiff holds the said mortgage as trustee for the defendant Barker, to the extent of his claim. Judgment was directed for a sale of the premises described in the complaint and the application of the proceeds of sale, first, to the payment of the plaintiff's mortgage debt with interest and costs; second, to the payment of the debt due to Barker, with interest; and third, if any surplus should remain, that it be paid into court to be distributed between the subsequent lienors as their several rights should be made to appear on the usual application for surplus moneys. It was the defendants Duncan and Hall, alone, among several subsequent lienors, who appealed from the judgment entered upon such direction.

We think the judgment was entirely correct, and upon the grounds substantially embraced in the conclusions of law of the trial court. There can be no doubt, we think, of the right of the defendant Barker, under the agreement with the mortgagor by which he relinquished his own mortgage security, to be subrogated to that of the plaintiff after the debt of the latter should be fully satisfied; and this right did not depend upon any contract or consent of the mortgagee. 1 Jones on Mortgages, §§ 874 et seq.; Gans v. Thieme, 93 N. Y., 225, 232; Barnes v. Mott, 64 id., 397; see also Griffin v. Burtnett, 4 Edwards, Ch., 673.

This last was a case in which the mortgagee took his mortgage for the full amount of moneys which he was to advance to the mortgagor in instalments as building on the property should progress ; he failed to make the later advancements, and they were made by a stranger to the mortgage, relying upon the same security, and he was allowed to be subrogated to that security even as against a subsequent mortgage which was given before the last mentioned advancements were made. In the present case the subsequent liens were acquired after the equity of Barker had been fixed, and the security offered by those liens was no less than it would have been if the loan association had advanced the whole amount covered by its mortgage, and the claim of Barker had been satisfied from the advancements so made, as would have been his undoubted right

The objection to evidence of the paroi agreement between Silliman and Barker, on the ground that it was merged in the written order or assignment, was properly overruled. The giving of that order was only in furtherance or part performance of the paroi agreement.

The objection that the order had never become operative because not payable, by its terms, until the building on the premises covered by the mortgage was completed, is of no avail to the appellants under the finding that the building was substantially completed. Glacius v. Black, 50 N. Y., 145; Woodward v. Fuller, 80 id., 312; Heckmann v. Pinkney, 81 id., 211.

The objection that by consenting to the advancment of $200 on the mortgage in suit to Silliman himself, Barker waived his equity as against the appellants, is not tenable, because there still remained a margin on that mortgage more than sufficient to secure his claim.

We find nothing in the case which impugns the right of Barker to assert, as against the appellants, his equity to be indemnified out of the avails of this mortgage for the surrender of his prior lien.

The judgment should be affirmed.

Judgment of the county court of Monroe county appealed from affirmed, with costs.

Macomber and Lewis, JJ., concur.


text:
    William T. Long, Resp't, v. William Long, App'lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    Guardians—Sale op infants’ real estate—Payment of judgment WITHOUT ORDER OF COURT.
    In an action upon the bond of a special guardian, given in proceedings for the sale of infants’ real estate, it appeared that plaintiff and his sister, the infants, some twenty years previous, had petitioned, by their general guardian, for the sale of the land, alleging that there were encumbrances thereon consisting of a judgment of $10,000 and a legacy of $4,000 ; the referee reported in favor of the sale, the report was confiimed, a portion-of the land was conveyed, the guardian received the money, paid the legacy and a portion of the judgment without an order directing him so to do, and thereafter died. ' Plaintiff claimed that such payment of the judgment was a conversion, because no order directing the same had been obtained. Held, that as plaintiff had the benefit of such payment it would be unjust to compel the surety to pay the money, and judgment against him should be reversed.
    Appeal from a judgment entered upon the report of a referee.

      Abbott & Abbott, for app’It;

      J. B. Adams, for resp’t
   Lewis, J.

This action was brought upon the bond of a special guardian given in proceedings in this court for the sale of infants’ real estate, plaintiff being one of the infants, and the defendant, William Long, and one George W. Root uniting as sureties with Duncan McIntyre as principal. McIntyre was the special guardian of the plaintiff and his sister for the purposes of such sale. Plaintiff and his sister, by Duncan McIntyre, their general guardian, made and presented to this court their petition, dated February 1, 1868, for the sale of their lands. The petition was in due form, and alleged that said infants were entitled to certain lands, describing them, but there were encumbrances thereon consisting of a judgment in favor of said William Long for the sum of $10,245, no part of which had been paid, and that they were also encumbered by a legacy of $4,000, and other liens, and prayed that the lands might be sold to pay said encumbrances. There was the usual reference to ascertain the truth of the facts stated in the petition, and whether a sale of the premises, and what part thereof, would be beneficial to the infants, and the reasons therefor. The premises sought to be sold consisted of several pieces of land. The referee reported that the encumbrances on the premises by a judgment, mortgages and a legacy amounted to the sum of $24,245, he reported in favor of a sale, fixing the value of each of the several parcels of land, and the price at which they should be sold.

The report was duly confirmed and an order entered directing said guardian to contract for the sale of the lands at the prices fixed by such report. The guardian reported to the court that he had entered into a contract to sell the “ Gilmore Farm,” that being one of the parcels described in the petition, for $9,150. An order was granted April 20, 1868, confirming said report and ordering the guardian to convey the infants’ interest in said premises on payment of such purchase money. The guardian conveyed and received the money therefor, and applied a portion of said money towards the payment of the Long judgment, and with said moneys also paid a $4,000 legacy, which was by the will made a charge upon the land. The special guardian died more than twenty years ago and his estate has been settled and distributed. After the death of the special guardian the mother of the infants was appointed special guardian in the proceeding in his stead, and other parcels of the land were sold, and the proceeds used in paying other claims against the estate. No question as to the propriety of the payment appears to have been raised for more than twenty years after it was made. This action was brought against the defendant, William Long, as one of the sureties of the special guardian, to recover the infants’ interest in said money so paid upon the judgment. It is the plaintiff’s corn tention that such payment by the guardian was a misappropriation and conversion of the funds, for the reason that an order of the court was not previously obtained directing such payment to be made. He further claims that no such order could have been made for such payment, because the judgment was void. The learned referee declined to pass upon the question of the validity of the judgment entered in favor of Long, but put his decision on the ground that it was a misappropriation of the money to pay it out without an order of the court, for the reason that a rule of the court required the special guardian to bring the fund into court.

Whether the judgment was void or voidable is not material, because it is conceded that the claim of William Long against the estate was a valid one for the amount of the judgment. The court could have ordered the claim paid if no judgment had been entered thereon. The only question is as to whether the payment of the claim under the facts and circumstances presented in this case must be held to have been a misappropriation and conversion of the money by the special guardian.

The proceeding was instituted to sell these particular lands to pay the Long judgment It was a debt the estate was liable to pay. All of the proceedings were regular, except that the money was used to pay this debt without an order of the court having first been obtained directing the payment so to be made. Had the facts appearing upon this record been presented to the court at any time after the special guardian had applied the money, a nunc .pro tune order would unquestionably have been granted directing its payment The guardian neglected to apply for such order, perhaps for the reason that there were other parcels of land thereafter to be sold. If such order had been obtained, it would be a perfect protection to the guardian, and to the defendant as his surety. The money was paid without the order, and in violation of a rule of this court; but the estate owned by this plaintiff and his sister has had the benefit of such payment, as they were the residuary legatees of the estate. Had not the property been sold in this proceeding, some other proceeding would have been instituted by the defendant, Long, to subject the land to the payment of his debt, and the other debts of the estate. It is certainly a great injustice to compel the surety now to pay this claim. The plaintiff is not equitably entitled to it, because he has had the benefit of the fund.

Had the plaintiff made application after the guardian had paid the money for an order requiring him to pay the money into court, would not the court have refused it, under the circumstances.

The surety is entitled to make the same defense that the principal could have made. Hughart v. Spratt, 78 Kentucky, 313. Plaintiff charges the guardian with the conversion of the money, when in fact he applied it to the discharge of plaintiff's estate from liability for a debt.

Clearly plaintiff was benefited; then what is the extent of his injury by the wrongful act of the guardian.

This is. not a case of a voluntary payment made by a stranger, giving him no right of action or claim against the debtor; but it , was made by the guardian in good faith in legal proceedings instituted for the sale of the estate for the purpose of discharging it of the debt.

And besides the acquiescence for so many years without instituting proceedings for an accounting, and requiring the money to be paid into court, is. strong evidence, under the circumstances, of plaintiff’s assent to the payment of the money.

Courts have frequently, in the settlement of guardians’ accounts, allowed them credit for advances made from their own funds for the making of permanent improvements to the estate of their wards, when they had no authority so to do without a previous order of the court, if the expenditures were made in good faith, believing that what they did was for the wards’ benefit, if it be made to appear that the court, upon presentation of the facts, would have granted the requisite order. Waldrip v. Tulley, 48 Ark., 300; Kingsbury v. Powers, 22 N. E. Rep., 482.

Should the defendant be compelled to pay this judgment, he would probably be entitled to subrogation, and could reclaim the amount paid from the estate, if a sufficient amount thereof in value could be found in the possession of the plaintiff. But it seems to us that, as the judgment has nothing to rest upon but the absence of the order, justice demands, under the circumstances, that the rule requiring the entry thereof should not be enforced.

There are authorities holding that the supreme court may disregard one of its rules, where to adhere to a strict compliance therewith will work an injustice. This, we think, is such a case.

In the case of Hunt v. Hunt, 58 N. Y., 666, referred to in the referee’s opinion, the special guardian applied the money to the payment of the debts of the father of the infants. The court held there was no authority for such an application without the express authority of the court, but adds the significant remark, “ as such was not the purpose for which the sale was ordered; ” the inference being that, had the money been paid as in the case at bar, the court would probably have held the payment proper.

The judgment appealed from should be reversed and a new trial granted, with costs to abide the event; and the same disposition should be made of the case of Francis A. Dike, against the same defendant, which was argued at the same time and presents the same questions.

Dwight, P. J., and Macomber, J., concur.


text:
    Alonzo Halliday, Resp't, v. Hannah White, App'lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    Contract—Reformation—Mistake.
    Defendant by a written agreement sold to plaintiff all the standing' timber on one hundred acres of land, The defendant thereafter entered upon the premises described in the contract and cut and carried away a number of trees from a certain portion thereof, and plaintiff brought an action for their conversion. The defense was that by a mutual mistake the contract did not express the real agreement, that the land upon which the trees were cut, was not intended to be included. Defendant heard the contract read, understood that it included one hundred acres, the contract was plain and easily understood. Held, that defendant failed to make a case for reformation of the contract.
    Appeal from a judgment entered in Chautauqua county, February 13, 1891, on the report of a referee.

      A. G. Wade, for app’lt;

      Bootey, Fowler & Weeks, for resp’t.
   Lewis, J.

The defendant, by a written agreement, bearing date October 13, 1879, sold to the plaintiff all the standing timber on 100 acres of land in the town of South Valley, Cattaraugus county, belonging to the defendant. The premises were described in the contract as bounded west by what is known as the Jones lot, south by land owned by one Butts, on the north by land owned b}"- one Burch, and extending east equal widths far enough to include 100 acres. After the execution and delivery of the contract, the defendant entered upon the premises described in the contract and cut and carried away from the easterly portion thereof 139 trees, and this action was brought against the defendant for the conversion of these trees. The referee found for the plaintiff for the amount of the value of the trees, $234.56. The making of the contract was admitted in the pleadings. It is conceded that the trees were upon the land included within the boundaries of the lot as described in the contract, but it is the contention of the defendant that by the mutual mistake of the parties the contract did not express the real agreement; that more land was included within the boundaries as described in the contract than was intended to be by the parties thereto. The defendant claims that the real agreement and understanding of the parties was, that the trees that were on the land south of the Burch lot were to be sold, and that the sale did not include any of the trees upon the land easterly of the Burch lot; and that, by the mutual mistake of the parties, the land was incorrectly described in the contract, and the defendant asked in her answer to have the contract reformed so that it would express the real agreement made by the parties. The trees taken away by the defendant concededly came from land lying east of Burch’s east line extended southerly. The negotiations leading up to the making of the contract were mainly conducted on the part of the plaintiff by his brother, Samuel Halliday.

The evidence on the part of the defendant tends to show, and it may be assumed that it fairly establishes, that defendant supposed when executing the contract that the timber on the land directly south of the Burch lot, and no more, was being sold. She understood and believed that 100 acres or more of her land lay south of Burch’s land. Her husband had informed her that there were 112 acres in that piece, and, when she consented to the description as written in the contract, she did not suppose it would include any of the land lying east of the Burch line. She understood, however, that she was selling, and that the plaintiff expected to obtain the timber on 100 acres of land. She was present when the contract was written, and testified that she heard it read; that she heard the following clause read: “ The said first party sells, transfers and conveys unto the said second party the timber on 100 acres of land.” She says that she knew the words “ one hundred acres ” were used three times in the contract, and that she heard read and understood that portion of the contract which spoke of the land extending east far enough to include 100 acres, when she signed it. She met the plaintiff at the office of the attorney when the contract was drawn; she testified that there was a conversation in the presence of herself and plaintiff, and that so far as she knew all that was said in plaintiff’s presence was that he was purchasing all the timber on 100 acres of land. The evidence tends to show that the plaintiff’s brother, when negotiating for the purchase of the timber, understood from conversations with the defendant and others that there were 100 acres of land lying south of Burch’s lot, but the evidence does not show that either he or the plaintiff had any knowledge how far east the 100 acres would, in fact, extend. Both the plaintiff and his brother, Samuel, testified that there was no understanding or agreement fixing the location of the east line of the lot at any other place than that mentioned in the contract, that it was the understanding and agreement that the plaintiff was to have all the timber on 100 acres, and that the contract correctly expressed their understanding of what the agreement in fact was.' They deny that there was any mistake in the contract on their part.

The contract is plain and easily to be understood. There is no ambiguity in the description of the land. It transfers the timber on 100 acres. The land is bounded upon the north and west and south by the lands of other owners, and extends far enough east to include 100 acres. Defendant’s farm contained over 200 acres, and extended farther east beyond the 100 acres sold to the plaintiff. The presumption is that the contract expresses the agreement of the parties. The burden to show that it does not is upon the defendant. To succeed she must establish her contention by plain, convincing and satisfactory evidence, not only that there was a mistake upon her part, but that the mistake was mutual. Devereaux v. Sun Fire Office of London, 20 St. Rep., 587; Stryker v. Schuyler, 20 id., 452; Howland v. Blake, 97 U. S., 626.

Plaintiff’s brother, Samuel, by an arrangement with the plaintiff, was to have an interest in any profits which might accrue out of the purchase and sale of the timber, but the plaintiff was the owner of the timber, and was the only one entitled to maintain the action.

The defendant failed to make a case for a reformation of the contract. We find nothing in the defendant’s exceptions justifying a reversal of the judgment. The judgment appealed from should be affirmed, with costs.

Dwight, P. J., and Macombeb, J., concur.


text:
    William Roades, Resp't, v. Elias T. Larson, App'lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    Assault—Damages.
    In an action to recover damages for an assault and battery, it appeared that at the time of the assault the parties occupied adjoining lots; that a bad feeling had arisen between them; that plaintiff had entered defendant’s lot to fix his cellar window, after having been refused permission so to do; that as defendant sat in his window plaintiff, in a taunting manner, told him to remove 'Some rubbish, simply to irritate him; that defendant had been drinking, which fact was known to plaintiff, and became angry and struck plaintiff on the head several times with an iron pipe, injuring him so that, while not confined to his bed, he suffered pain continuously and his general health became impaired, but defendant’s witnesses testified that he worked a short time after the assault as usual, and seemed quite as well. Held, that a verdict of $5,000 for. plaintiff should be set aside as extravagantly large.
    Appeal from a judgment entered upon the verdict of a jury in Monroe county, October 23, 1891, and from an order denying the defendant’s motion for a new trial on the minutes.

      Thamas Raines, for app’lt;

      F. Chamberlain, Jr., for resp’t.
   Lewis, J.

This action was brought to recover damages sustained by the plaintiff from an assault and battery committed by the defendant on the 15th day of May, 1889. The plaintiff recovered a verdict for $5,000. The parties at the time of the assault were occupying adjoining lots in the city of Rochester. They had so occupied their lots for many years. A had state of feeling had arisen between the parties a short time before the assault was committed, caused by the defendant having moved upon the rear of his lot, adjoining the plaintiff’s land, an old wooden building. The plaintiff charged the defendant with having moved the building upon the lot in violation of the city ordinances, and a quarrel ensued between the parties. On the day of the assault the plaintiff had entered upon the defendant’s lot for the purpose of constructing a curbing around his cellar window. He had asked permission of the defendant to occupy his lot for that purpose, the request was refused, but notwithstanding such refusal, the plaintiff entered upon the defendant’s lot, and while engaged in the work the defendant ordered him off from his lot. The plaintiff refused to go, and angry and abusive words passed between the parties. About the time the plaintiff had completed the work, he walked in between his house and the defendant’s house upon defendant’s land, and seeing the defendant sitting in his house by a window, spoke to him in a taunting manner, and told him to come out of the house and remove some barrels and rubbish which were upon the defendant’s lot between the two houses, and which so obstructed the way as to make it inconvenient fór a person to pass by the rubbish.

The defendant was addicted to the use of liquor, and had been drinking for some days immediately prior to the assault, and he was at the time under the influence of liquor, which facts were known to the plaintiff. The plaintiff testified that he requested the defendant to remove the rubbish not because he cared to have it out of his way. His testimony tended to show that he made the request to irritate and annoy the defendant. The defendant became very angry, and again ordered the plaintiff to leave defendant’s premises, and threatened that if he did not do so he would come out and kill him; and he immediately came out of the house and approached the plaintiff and struck him upon his head two or three times with a piece of iron pipe. The plaintiff was partially dazed by the blows, but he- immediately seized the defendant, forced him back several feet and pushed him through a window, and the parties were thereupon separated. The plaintiff’s testimony tended to show that he was quite seriously injured. The wounds upon his head bled freely. He testified, however, that finding that his hat was bloody he immediately after the assault proceeded to wash it. He testified that while he was not confined to his bed to any great extent in consequence of his injuries, that he was for mpnths unable to work, and had from that time down to the time of the trial suffered pain continuously, and that his general health was impaired in consequence of the assault. His physician, Dr. Moore, describing his injuries, said he found four cuts upon his head, varying in length from two to three inches, and extending through the scalp to the skull; that they bled quite freely; that he found the plaintiff pale and excited; that he sewed up the wounds, and at the end of ten days or two weeks he removed the dressings, and the wounds were all healed up. Other witnesses were called by the plaintiff whose testimony tended, to show that after the assault the plaintiff was pale and did not work as he had before he received the injuries.

The defendant called a large number of witnesses, who testified that they resided in plaintiff’s neighborhood; knew him, and saw him immediately after the assault; that he was around his house and lot the day of the assault with his head bandaged, and was talking to his neighbors, giving them an account of the affray ; that from time to time thereafter they saw him, and that he commenced working a short time after he was injured, at his business of manufacturing shoes, and seemed quite as well as he did before he was injured.

It was, undoubtedly, an aggravated and serious assault, and was made without any legal adequate cause ; but a careful reading of the evidence has satisfied our minds that the verdict was altogether too large. The facts and circumstances developed upon the trial did not justify so large a verdict. The plaintiff knew when he told the defendant to come out and remove the rubbish that the defendant had been drinking for a number of days, and was at the time intoxicated; he knew he was in a condition to be easily irritated, and might, if provoked, do acts that he would not do when sober. The plaintiff’s conduct was well calculated to annoy and provoke even a sober man, and much more so one whose brain was excited with liquor. While the defendant’s intoxication was not an excuse for the assault, it should have been taken into account by the jury on the question of punitive damages. Punitive damages must have largely entered into the verdict, for certainly plaintiff’s actual damages did not warrant so large a verdict. While the amount of damages in such a case is for the decision of the jury, when their verdict is unreasonably and extravagantly large, it is the duty of the appellate court to interfere and set it aside, and grant a new trial, unless the plaintiff consent to reduce the verdict to a proper amount.

The judgment and order appealed from should be reversed, and a new trial granted, unless the plaintiff stipulates to reduce the damages to the sum of $2,000; and if the stipulation be so given, the judgment so modified should be affirmed, without costs of this appeal to either party.

Dwight, P. J., and Macomber, J., concur.


text:
    Frank B. Martin, App'lt, v. The New York Central & Hudson River Railroad Co., Resp't.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    Negligence—Contributory.
    Where a person is driving a gentle horse at such a rate of speed that he is unable to stop in time to avoid a collision with an engine at a railroad crossing, he is guilty of negligence and, in an action to recover damages for his injuries, should he nonsuited.
    Motion by the plaintiff for a new trial upon exceptions directed to be heard in the first instance at the general term after a non-suit at the Cayuga circuit.

      A. W. Shurtleff. for app’lt;

      Camp & Dunwell, for resp’t.
   Lewis, J.

This action was brought to recover damages for injuries sustained by the plaintiff, caused by his coming in collision with one of the defendant’s engines at a highway crossing.

Defendant’s negligence was established. The plaintiff was non-suited because he failed to show himself free from negligence contributing to his injuries.

The undisputed evidence showed that the plaintiff approached the crossing upon the highway in an open wagon drawn by a gentle manageable horse, in the daytime; he stopped at the distance ■of one hundred and eighty feet from the crossing and looked and listened, and not seeing or hearing an approaching train, he started up his horse and drove on to the place of collision at a speed of from six to eight miles an hour.

He saw the approaching engine just before the collision, and tried to stop his horse, but was not able to do so in time to avoid the collision.

In explaining why he did not stop in time to avoid the accident, plaintiff testified: “ A man going on a good road gait cannot stop in a minute.” While he testified that he continued to look and listen up to the time of the accident, and did not see the ■engine until it was too late to avoid the collision, it is apparent that his own negligence contributed to his injuries ; had he been driving his horse at a proper rate of speed he could have stopped him in time to have avoided the accident. The jury would not have been warranted in finding otherwise upon the evidence.

The nonsuit was proper, and the plaintiff’s motion for a new trial should be denied and judgment directed for the defendant ■on the nonsuit.

Dwight, P. J., and Macomber, J., concur.


text:
    Ira M. Ackley, Ex'r, App'lt, v. John Ackley, Resp't.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

      1. Executors and administrators—Action to recover assets—Evidence.
    Plaintiff, as executor, brought an action to recover the value of a span of horses, contending that they belonged to his testator at the time of his death ; that he found them in defendant’s possession, demanded them, and was refused. The defense was that testator had sold the span to A., of whom defendant had hired them, and the latter relied to establish A.’s title upon the declarations of testator that he had sold them to A. Held, that such evidence was competent.
    2. Same—Costs.
    In such case, plaintiff’s complaint being dismissed, it was proper to charge him personally with the costs, as the cause of action, if any, arose after testator’s death, and the action could have been maintained in plaintiff’s individual name.
    Appeal from a judgment entered in the clerk’s office of Cattaraugus county upon a referee’s report dismissing the plaintiff’s •complaint and awarding costs against the plaintiff personally.

      W. iS. Thrasher, for ajpp’lt;

      William Woodbury, for resp’t.
   Lewis, J.

This litigation is about the ownership and right of possession of a span of horses. The plaintiff contends that the horses were the property of the testator, Ira W. Ackley, at the time of his death, and thereby became a part of the assets of the estate. That he, as the duly appointed and qualified executor of the estate, found the horses in defendant’s possession. That he demanded possession of them, which was refused, and that thereupon as such executor he brought this action to recover their value of the defendant.

The defendant answered admitting that the testator was once the ■owner of the horses, but alleged that during his lifetime he sold and delivered them to one Anson Alverson, that Alverson was the owner of them at the time of the testator’s death, and that at the time the plaintiff demanded them the defendant was rightfully in possession of the horses under Alverson. The action was referred and tried and the referee dismissed the plaintiff’s complaint and charged the defendant personally with the costs of the action. The defendant relied to establish Alverson’s title upon the declarations of the deceased that he had sold the horses to Alverson and had received his pay for them. This evidence was objected to by the plaintiff as incompetent. It was unquestionably competent evidence ag£T"st the plaintiff, occupying, as he did, the position of a representative of the estate.

The appellant contends that the referee erred in charging him personally with costs of the action. The alleged cause of action occurred after the death of the testator, and at a time when the plaintiff was acting as the executor of the estate. It is so alleged in the complaint. Mo cause of action existed in the testator’s lifetime; at the death of the testator the personal property vested in his executor.

The cause of action arose when the defendant refused to surrender the property on demand.

The action could, therefore, have been maintained in the plaintiff’s individual name. In such a case it is proper to charge the plaintiff personally with costs. Lyon v. Marshall, 11 Barb., 248; Ketchum v. Ketchum, 4 Cow., 87; The People v. Judges, 9 Wend., 486.

The findings of the referee are fully sustained by the evidence.

The judgment appealed from should be affirmed, with costs of the appeal against the plaintiff personally.

Dwight, P. J., and Macomber, J., concur.


text:
    Ludwig Herbst, Resp't, v. The Vacuum Oil Company, App'lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    Costs—Taxation.
    Plaintiff recovered a verdict, which was set aside at special term as excessive. He appealed from the order to the general term, which court affirmed the order, “ with costs of 1he appeal to abide the event.” On the new trial plaintiff asrain recovered a verdict, and the clerk upon taxation of costs taxed the general term costs for plaintiff. Held, that such costs were properly allowed.
    Appeal by the defendant from an order of the special term denying a motion for retaxation of costs.

      Marcenus H. Briggs, for app’lt;

      Q. & S. 0. Truesdale, for resp’t.
   Lewis, J.

The plaintiff recovered a verdict in an action in the-supreme court. It was set aside at special term because the damages were excessive. The plaintiff appealed from the order setting aside the verdict to the general term. That court made' and filed its decision affirming the order of the special term, “ with costs of the appeal to abide the event” A new trial of' the action was thereafter had, the plaintiff again had a verdict,, but for a smaller amount. The clerk, against the objections of the defendant, taxed the general term costs for the plaintiff. This appeal is from an order of the special term denying the defendant’s motion to strike out of the costs as taxed the costs-of the appeal to the general term. The allowance of the costs-in the general term was discretionary with that court. It might, have limited the costs of the appeal to the defendant to abide the event of the action, or, as was done here, allow the costs of the appeal to abide the event of the action. That court, having-all of the facts before it, determined that the appeal was not so-devoid of merit as to justify the refusing to the plaintiff costs of the appeal if he should be finally successful in the action, so-the court concluded to allow the costs of that court to abide the-event of the action. Proceedings are not unfrequently taken in the prosecution of actions which are finally ascertained to have-been unnecessary and fruitless of any good, but they may be taken in good faith, with the belief on the part of the appellant, that the order or judgment appealed from is erroneous, and should be reversed. Courts, when denying motions, sometimes-allow costs of the motion to abide the event of the action; it has-been the practice to allow the successful party to tax such costs.

It was held by the court of appeals in the case of the Union Trust Co. v. Whiton, 78 N. Y., 491, that it is the province of the general term in such a case to give construction to its own order. A like construction was given by the court of appeals-to-a similar order made by that court in the case of First National Bank of Meadville v. Fourth National Bank of New York, 84 N. Y., 469. Judge Andrews, speaking for the court, said: “The order did not limit the recovery of costs to the prevailing party on the appeal in case he should finally succeed in the action. Appeals are often taken for technical errors which do not affect the merits, and although the appellant is successful, the effect of such appeals in many cases is simply to protract and increase the expense of the litigation. There is generally no injustice in awarding costs on the appeal to the party who shall finally recover. It is-conceded that the plaintiff is entitled to tax the costs of both trials. This is the undoubted practice although the first judgment in his-favor was erroneous. In analogy he should be allowed to tax the costs of the appeal. We have often limited the recovery of costs on appeal to one of the parties, but where an order reversing the judgment and granting a new trial is made with costs to-abide the event without other limitation, we understand that the-party finally succeeding in the action is entitled to tax them."

, We are referred to a reported ease where a different construetian was given to a like clause in an order by the general term in the first department. That court in construing its own order announced what it intended by the terms of the order. We are here required to give construction to an order made by this court. The construction given to our order by the special term court meets with our approval.

The order appealed from should be affirmed, with ten dollars ■costs and disbursements of the appeal.

Dwight, P. X, and Macomber, X, concur.


text:
    Hannah Prentice, Adm'rx, Pl'ff, v. The Village of Wellsville, Def't.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    Villages—Negligence—Liability for injuries to employees^*'
    The president of a village directed that stumps be removed from its park by means of a well known and highly approved explosive, operated by a person selling the same, and directed that two of the village employees assist in the work, and on the third day of such work a premature explosion occurred, killing such employees. In an action against the village for damages, brought by the administratrix of one of the employees, Held, that a non-suit was properly granted.
    Motion by plaintiff for a new trial on a case and exceptions ordered to be heard in the first instance at the general term, after a non-suit at the circuit, Allegany, June, 1890.

      O. H. Brown, for motion ;

      O. A. Farnum, opposed.
   Dwight, P. J.

The plaintiff brought her action for damages resulting from the death of her intestate, Thomas Prentice, caused, as alleged, by the negligence of the defendant.

The deceased was in the employ of the defendant engaged in clearing up a plot of ground for a village park. There were stumps to be removed, and the president of the village hired a man by the name of Irish, who was selling an explosive preparation known as “ Van Campen’s Compound,” to blast them out. The process required the insertion of cartridges of the compound under the stumps and their explosion by means of a fuse and cap. Irish required assistance in his operations, and the president of the village directed the foreman in charge of the work on the park to furnish him the help he required. The foreman permitted the deceased and one Rooney to go to work with Irish, and it was only on the third day of the blasting that a premature explosion took place, by which the deceased and Rooney were killed.

The explosive, known as “Van Campen’s Compound,” had a local reputation as a safe and efficient preparation for the purpose for which it was used. The cartridges employed by Irish were manufactured by a firm at Eldred, Pa., who had purchased the formula from the inventor, and had a license to manufacture and sell the compound; and these cartridges were sold under the name of Van Campen’s Compound. Mr. Van Campen, the inventor, naturally jealous of the reputation of his compound for safety, examined one of the same stock of cartridges, sometime after the accident, and expressed the opinion that its contents were not compounded in all respects like the genuine Van Campen’s Compound. His evidence is not very satisfactory on that question, but it is of no materiality on the question of the defendant's negligence. It is undisputed that the cartridges in question were manufactured and sold as Van Campen’s Compound by the people who for several years had been the accredited manufacturers of that article, and if they had ceased to manufacture according to the original formula there is no pretense that the president of the defendant knew, or had any reason to suppose, that they had made any change in the composition of the product which was sold under the same name. It is impossible to charge the defendant with negligence on account of any such change if it had, in fact, been made.

IlMeed, we are unable to find evidence in the case which chargePfche defendant with negligence in any respect. There was, no doubt, a measure of hazard involved in the use of an explosive for the purpose of removing stumps. But it was a hazard incident to the process and was as well known, so far as appears, to the deceased as to the president of the village ; it was, therefore, a hazard assumed by the deceased himself. Burke v. Witherbee, 98 N. Y., 562; Webber v. Piper, 109 id., 496; 16 St. Rep. 423; Cullen v. Norton, 126 N. Y., 1; 36 St. Rep., 359. • Moreover it is to be observed that the deceased was not required to assist in the work in which the hazard was involved, but that he was virtually a volunteer. Rannister, the foreman, testifies that when the president of the village directed him to furnish Irish what help he needed, Rooney, who was present, said “ that will be a job for Tom (Prentice) and me,” to 'which no objection was made, and that when Irish went to work, in the absence of the foreman, Rooney and Prentice went to work with him.

But even if he had been directed to go to work at the blasting, and even on pain of losing his employment, he would have had the option to do the latter, and if he did the former it would have been at his own risk of. the hazards which were incident ' to the employment, and were as well known to him as to his employer.

The evidence shows that the president of the village had every reason to suppose that the explosive to be employed was a well-known compound, highly recommended and approved both by scientific analysis and by long use for safety in its use. There was no evidence of negligence on his part in failing to discover, if such was the fact, that the compound was not precisely what it purported to be. All other risks than that were incident to the employment in which the deceased voluntarily engaged, and, so far as they related to him, were assumed by himself.

There seems to have been no evidence which would have supported a verdict for the plaintiff, and, therefore, the nonsuit was properly granted.

Plaintiff’s motion for a new trial denied, with costs, and judgment ordered for the defendant on the nonsuit.

Macomber, J., concurs; Lewis, J., not sitting.


text:
    Mary Henning, Resp't, v. Libbie Miller, Ex'rx, App'lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    1. Evidence&emdash;Oral to contradict written instrument&emdash;Statute of frauds.
    Plaintiff and two sisters deeded to testatrix certain real property for a consideration therein expressed. After testatrix’ death plaintiff preferred ' a claim against her estate for the value of an undivided one-third of the land so conveyed, alleging an oral agreement on the part of deceased, in consideration of the conveyance, that the property should all come back to them in equal shares at her death. The claim was referred, and on the. trial evidence of the alleged oral agreement was received, and the referee reported in favor of the claim. Held, that the admission of such evidence was in violation of the rule which excludes evidence of an oral agreement in contradiction of a written instrument, and the finding was in violation of the statute of frauds.
    2.
    SAME Every agreement, whether oral or written, unless nudum pactum, is made upon some consideration, and the character of the consideration is not a test either of its admissibility in evidence or of its competency to create or convey an estate or interest in
    lands. Appeal by the defendant from an order of the Erie special term, denying her motion to set aside the report of a referee, and for a new trial, on a case and exceptions, in the case of a refer- ence under the statute; and from the judgment subsequently entered on the report of the
    referee. TI. S. Heath, for app’lt;

      C. W. Sickmon, for resp’t.
   Dwight, P. J.

&emdash;In the lifetime of the defendant’s testatrix, Catherine Barbara Westel, the plaintiff united with her two sisters in a quit claim deed to their mother (the testatrix), of all their and each of their right, title and interest in and to a piece of land of six acres, in the town of Hamburg, for a consideration expressed in the deed. The three grantors were the owners of the land in fee simple, subject only to the dower right of their mother, the grantee. Since the death of the latter the plaintiff has preferred a claim against her estate for the value of an undivided one-third of the land so conveyed, alleging as the ground of such claim an oral agreement on the part of the deceased, in consideration of their conveyance, that the property should all come back to the three heirs in equal shares if she should

die. The claim, being disputed, was referred under the statute. On the trial, evidence was received of the alleged oral agreement under the objection of the defendant, and the referee reported in favor of the

claim. We think the defendant’s exceptions to the admission of the evidence objected to, and to the findings of the referee, were well taken, and furnished incontrovertible ground for the defendant’s motion to set aside the

report. The admission of the testimony was in violation of the ele- mentary rule of evidence which excludes evidence of an oral agree- ment in contradiction of a written instrument, in this case a deed under seal; and the finding was in equal violation of that pro- vision of the statute of frauds which declares that no estate interest in lands shall be created or assigned unless by a deed or conveyance in writing.

In this case, if the effect of the oral agreement upon the deed executed by the plaintiff be considered, it is manifest that it cuts down an estate in fee to an estate for life merely. And the finding gives effect to an alleged agreement to create or assign an estate or interest in remainder in lands without a deed or conveyance in writing, but by an oral agreement only.

The suggestion is that the oral agreement sought to be enforced was the consideration of the deed executed by the plaintiff. But this suggestion is without force upon the question here involved. Every agreement, whether oral or written, unless nudum pactum, is made upon some consideration, and the character of the consideration is not a test either of its admissibility in evidence or of its competency to create or convey an estate or interest in lands.

NeithSl^he ancient rule of evidence nor the ancient statute have been abrogated by recent decisions of the courts. See Woodard v. Foster, 45 St. Rep., 77; Hutchins v. Hutchins, 98 N. Y., 56, and the cases cited in both.

The order appealed from must be reversed.

Judgment and order appealed from reversed, and the motion for a new trial granted, with costs to abide the final award of costs.

Macomber and Lewis, JJ., concur.


author: Yah Wyck, J.

text:
    James B. Guild, Resp't, v. John N. Huwer, App'lt.

      (City Court of Brooklyn,

      General Term,

      Filed December 27, 1892.)

    Sale—Deposit—Recovery of on failure to deliver.
    Plaintiff deposited a certain sum with defendant as payment in advance for goods to be manufactured for him, defendant also agreeing to retain possession thereof at his own risk till they were actually delivered on plaintiff’s orders. A portion of the goods were so delivered, when defendant’s factory was burned down. Held, that, under the circumstances, nothing short of an actual manual delivery on plaintiff's orders could be deemed a delivery, and that defendant was liable for the balance of the deposit.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.
    On or about June 1, 1891, the respondent, James B. Guild, desiring to purchase goods of defendant, and as a security for the performance of his agreement with defendant, deposited with defendant six hundred and forty-two ($642) dollars, the value of goods so to be purchased by him, in consideration of which defendant agreed to furnish and deliver to the respondent glassware of a certain quality, in such quantities and at such times as he should require and order the same, of the said value of $642.
    Between said 1st day of June, 1891, and the 20th day of November, 1891, defendant filled respondent’s orders and delivered goods pursuant to his orders and to said agreement of the value of $117.36 only.
    Between November 17 and November 24, 1891, inclusive, the respondent gave defendant further orders on account of said deposit of the value of $26.21, which last orders defendant failed and refused to fill, and said last named orders have never been filled.
    On or about November 26, 1891, defendant’s factory was burned, and on or about the 29th day of December, 1891, defendant paid to respondent the sum of two hundred and four dollars ($204), and refused to pay the balance still remaining, viz., $320.-64, or to furnish goods of that value to respondent.
    The respondent then brought his action for said sum of $320.-64, and on a trial before this court and a jury, on May 9, 1892, recovered judgment therefor with interest and costs.

      Brunnemer & Bennett, for resp’t;

      Edwin R. Root, for appl’t
   Yah Wyck, J.

According to the pleadings and the charge of the trial judge the right of plaintiff to recover was defeated if the goods contracted to be purchased from the defendant were, in law, delivered upon the complete manufacture thereof, though remaining in defendant’s factory. The testimony tends to show, and the jury thereupon finds, that the plaintiff agreed to purchase, at fixed prices, certain goods from the defendant, to be manufactured, the defendant agreeing to retain possession thereof at his own risk till they were actually delivered upon plaintiff’s orders. We see no reason to disturb this finding of the jury that the goods were not delivered. The testimony that the goods were to be retained by defendant at his own risk till they were actually delivered upon plaintiff's orders was clearly admissible, under the pleadings, to show that it was the intention of the parties that nothing short of actual manual delivery, on plaintiff’s orders, should be deemed a delivery.

Judgment and order must be affirmed, with costs.

Clement, Ch. J., concurs.


author: Clement, Ch. J.

text:
    William B. Millard et al., App'lts, v. Frances H. Adams, Impl'd, Resp't.

      (City Court of Brooklyn,

      General Term,

      Filed December 27, 1892.)

    1. Pab,tnebship—Evidence of.
    A judgment by default recovered in an action against the defendants as partners may be put in evidence by a stranger thereto in another action to prove the partnership; and taken in connection with evidence of one of the defendants that the other asked him “ How is our business getting along ? ” is sufficient to make a prima facie case.
    2. Same.
    The fact that the name of the firm is stated differently in the said judgment and in the complaint in this action, is immaterial, as the allegation of partnership is the material issue, and if the partnership existed the firm name was immaterial.
    Appeal from judgment dismissing the complaint as to the defendant, Adams.

      Cliarles M. Earle, for app’lt;

      Herman F. Koeplce, for resp’t.
   Clement, Ch. J.

The plaintiffs were copartners in business, and creditors of the firm of Kirkland & Co., and brought this action on the theory that the defendant was a partner in such firm. The plaintiffs claim that William Kirkland and the defendant were partners under the name of Kirkland & Adams, Kirkland & Co., or William Kirkland & Co. The complaint was dismissed at the trial at the end of plaintiff’s case, and this appeal was taken.

While the testimony tending to show that the defendant was a partner-is weak, nevertheless we think that it was sufficient to put the defendant on her defense. The plaintiffs put in evidence a judgment-roll in this court in an action brought by Annie E. Towner against William Kirkland and the defendant, in which judgment was taken by default against the defendant as a partner in the firm of Kirkland & Co. While it is true that, in the complaint in this action, it is alleged in the first cause of action that the firm name was Kirkland & Adams, in the second and third causes of action it is charged that the defendants made promissory notes under the firm name .of William Kirkland & Co. The allegation of partnership is the material issue, and so it was in the Towner case, and if the partnership existed, the firm name is immaterial. The plaintiffs called William Kirkland as a witness, who testified that he had spoken to the defendant about matters of business in 1890, and on one occasion she said “ How is our business getting along?” We have stated substantially all the testimony in the case.

The learned counsel for the respondent concedes in his brief that the judgment by default could be put in evidence by a stranger to prove tile existence of the partnership. This rule of evidence is recognized by all the text writers, and in a late case in the court of appeals of this state. In Eisenlord v. Clum, 126 N. Y., 552, 559; 38 St. Rep., 446, Judge Beckham said: “the cases cited from 1 Greenleaf on Evidence, § 527, are those where it was claimed that the party had made an admission in a declaration or other pleading, or had suffered default, and it was held such express admission or such constructive admission by suffering a default was competent evidence against him. We do not doubt the correctness of this rule. It is not the judgment which is to form the evidence. It is the admission contained in the pleading or by the suffering of the default.”

We do not think that it is necessary to discuss the question at length, as the case just quoted seems to be conclusive that the judgment by default was evidence that William Kirkland and thé respondent were partners, and, taken in connection with the testimony of William Kirkland, made out a prima fade case against the defendant.

Judgment reversed and a new trial granted, with costs to appellants to abide the event.

Van Wyck, J., concurs.