author: Pryor, J.

text:
    Charles S. Close, Resp’t, v. Addison B. Flesher et al., App’lts.

      (New York Common Pleas, General Term,

      Filed May 15, 1894.)

    1. Injunction—Preliminary.
    To authorize a preliminary injunction, pursuant to section 603 of the Code of Civil Procedure, the complaint must exhibit a right to a judg. ment of injunction; and a defect in that regard may not be supplied by affidavit.

      2. Same—Breach oe contract.
    An injunction will not issue to restrain a breach of contract, where the complaint shows the damage to be susceptible to computation and recompense in money.
    3. Same—Good wild. ,
    Upon the sale of a business and its good will merely, without any restrictive engagement on the part of the seller, an injunction will not issue against his establishing a rival business and soliciting the customers of the purchaser.
    4. Same—Motion.
    A mandatory injunction for specific performance of a contract, will not be awarded on an interlocutory motion, except in a case of clear and urgent equity; nor then if the constant intervention of the court be requisite to enforce the performance.
    The opinion states the case.

      Edward A. Greeley {Ernest Hall, of counsel), for app’lts; William L. Flagg, for resp’t.
   Pryor, J.

On the face of the complaint the case is this: The defendants, being owners of “ a certain system of dress-cutting,”' and of a school for teaching dress-cutting and sewing, by written , contract of sale transferred , the school and it good will to the plaintiff, and engaged to supply him with the “ system ” without which he was unable to conduct the school., Afterwards the defendants opened a similar school, to which they entice plaintiff’s pupils; and they refuse to furnish their “ system ” to the plaintiff. By consequence the plaintiff has sustained damage to the amount of two thousand dollars ; for which he demands judgment, as well as an injunction compelling the defendants to observe their, contract in the future. An interlocutory order of injunction issued at special term in conformity with the prayer of the complaint ; and the appeal is from that order. The moving papers impute to the defendants no act which, if done pending the action, would tend to render the judgment ineffectual. It is obvious, therefore, that the order in question was allowed upon the principle of § 603 of the Code, which authorizes an interim injunction when the complaint exhibits a right to a judgment for injunctive relief. Is the plaintiff entitled, upon the face of the complaint, to a judgment of injunction ? If not, the order is not to be upheld. McHenry v. Jewett, 90 N. Y. 55. And, the defects of the complaint may not be supplied by allegations in affidavits. Stull v. Westfall, 25 Hun, 1. The wrong for which the plaintiff claims redress, is simply a breach of contract ; and for such breach the complaint itself shows that damages will be a proper reparation. But, where as here, no equitable right or interest is involved, and an award of damages will be a sufficient recompense for the injury, a judgment for injunction relief is superfluous and inadmissible. “ Equity will not interfere to restrain the breach of a contract when the legal remedy is'full and adequate.” 3 Pom. Equ. Juris. § 1338; Savage v. Allen, 54 N.Y. 458 ; Johnston Harvester Co. v. Meinhardt, 9 Abb. N. C. 393; Fincke v. Police, 66 How. 318. The injunction order operates ; first, to restrain defendants from maintaining a rival school and enticing away plaintiff’s pupils; and secondly, to compel defendants to furnish the books and appliances constituting their “ system”. The complaint alleges only a sale of the school with its good will; and not also an agreement by plaintiff to refrain from establishing a similar school. But the sale of a goodwill merely, implies no obligation to abstain from a rival business or from solicting the vendee’s customers and diverting his trade. White v. Jones, 1 Abb. 328, 337; Dayton v. Wilkes, 17 How. 510; 8 Am. & Eng. Ency. of Law, 1368-1369. True, in a rebutting affidavit plaintiff claims an agreement by defendants not to set up a competing school; but the allegation is ineffectual because, first, it is inadmissible to supplement the insufficiency of the complaint; secondly, it is incompetent to extend the scope of the written contract of sale; thirdly, it is discredited by the circumstance that it does not appear in the case as first presented by plaintiff, and is evidently inserted as an afterthought to sustain the order against attack; and fourthly, it is contradicted by the explicit assertion of defendants that they made no agreement for the sale of any rights or property except “ as directly covered and described on the contract. Accepting, however, the parol evidence of the pretended engagement, the, proof of it is yet insufficient to authorize the injunction. Stephens v. Aulls, 3 Thom. & C. 781. Still less valid is the provision in the order requiring the defendants to continue selling and delivering their “ system ” to the plaintiff. He has defaulted in payments for past sales ; and surely, it would be an anomalous exertion of the injunction power of a court of equity to enforce a contract in favor of a party who has himself broken it by compelling the other tp- furnish him goods for which he falls to pay. N. Y. Chemical Co. v. Halleck, 15 N. Y. Supp. 517, 519. Except in a plain and imperative case for equitable interference, a mandatory injunction will not issue on an interlocutory motion; and indeed, as a rule, the relief is awarded only by final judgment. Ward v. Kelsey, 14 Abb. 106; Durell v. Pritchard, N. L. R., 1 Ch. App. 244, 250; North &c., R. R. Co. v. R. R. Co., 1 Colly. 507; Westminster &c. Co. v. Clayton, 36 L. J. Ch. 476; Kerr on Injunctions 230, 231. The order obliges the defendants to furnish the “ system ” as “ the plaintiff may require on the conduct of his school; ” but how is it to be determined that the exigencies of plaintiff’s business require a supply of the systems, and in what quantity, except by application to the court on each and every occasion of pretended need ? Then, too, the court must make provision for payment to the defendants for the goods as de livered. This, beyond question, is a sort of specific performance • which the court, by interlocutory injunction, is incompetent to enforce. Fargo v. N. Y. & N. E. R. R. Co. 52 St. Rep. 205; 3 Misc. 205; 23 N. Y. Supp. 360. Order reversed, with costs and ■disbursements.

All concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    George H. Meyers et al., App’lts, v. Lena Stix et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed May 17, 1894.)

    Appeal—Former.
    Where there is little or no difference between the facts as presented on the first and second trial, the decision on the former will control on the second appeal.
    Appeal from a judgment of the general term of city court affirming a judgment of the trial term of that court and from an order denying a motion for a new trial.

      Charles Meyers for app’lts ; Samuel W. Weiss for resp’ts.

      Affirming 58 St. Rep. 398.

   Per Curiam.

We see little or no difference between the facts as presented on the former trial, (reported 86 St. Rep. 848) and upon this. On the former appeal we held that there was a trilateral agreement between the parties; and we see no reason to recede from that, upon the facts presented in this. We think therefore this judgment is proper and should be affirmed, with costs.


author: The Court (Bookstaver, P. J.) said: The Court, (Bookstaver, P. J.)

text:
    Mary Oakley et al., Resp’ts, v. Albert Loening, App’lt.

      (New York Common Pleas, General Term,

      Filed May 17, 1894.)

    Landlord and tenant—Chap. 345 op 1860.
    Where there is no covenant in the lease, on the part of the landlord, to make repairs or to keep the premises in repair, the tenant is not entitled to vacate under chap. 345 of 1860, on the ground of untenantable condition.
    Appeal from, a judgment of the general term of the city court.

      Albert 1. Sire, for app’lt; Lamed, Warren & Knapp, (W. P. Knapp, of counsel.) for resp’ts.
    The appellant having argued that he was entitled to vacate the premises under Chap. 345, Laws 1890, and cited in support of his contention, Tallman v. Murphy, 120 N. Y. 354; 31 St. Rep. 483.

      Affirming 57 St. Rep. 643.

   The Court (Bookstaver, P. J.) said:

The distinction between that case and this is that in this case the tenant had absolute control of the premises; and in the Tallman case the landlord had. In other words, in the Tallman case, the landlord had to keep the approaches to the premises in repair; in this case he did not.

Mr. Sire :, I„ appreciate what your honor says that in the Tail-man case the landlord reserved to himself the control of the staircase, the control of the gas, the halls, roof and so forth.

Bischoff, J. More than that, he undertook to keep the various approaches and the apartments in good condition.

Bookstaver, P. J. We do not however intend to hold anything more than is necessary for the determination of this case. We follow the court of appeals in Jackson v. Suydam, 54 N. Y. 450.

Mr Sire : In that case the roof became out of repair and they held the statute did not apply for the reason that it was the ordinary repair that was necessary and it was due to the gradual decay of the premises, and such repairs as a tenant was called upon to make. But in ths case because of the settling of the floor it was necessary to have iron supports and griders. Then the walls cracked, and the question is whether the tenant ought to go on paying the rent of the premises or whether he had a right to surrender the possession. Where the premises become destroyed without the fault of the tenant so that he cannot have the beneficial use of it, then I say he is entitled to be relieved.

The Court, (Bookstaver, P. J.)

We think in this case that the city court rightly rules that the case of Tallman v. Murphy had no application and followed rather the case of Jackson v. Suydam which I have before referred to, for the obvious reason that in the Tallman case the landlord was in possession of the approaches to the various apartments and was bound to keep them in a safe condition. In this case there was no covenant in the lease on the part of the landlord to make repairs or keep the premises in repair, and such being the case, the common rule prevails that the. tenant is bound to do so ; under the circumstances the court below should be sustained and its judgment affirmed, with costs.


text:
    Charles E. Orvis, Resp’t, v. William H. Curtiss, App’lt.

      (New York Common Pleas, General Term,

      Filed May 17, 1894.)

    Judgment—Void.
    A justice of a district court in the city'of New York has no jurisdiction to render a judgment after the time limited for his doing so.
    Appeal from a judgment of the distrct court in the city of New York for the eleventh judicial district.

      IT. G. Harris, for app’lt; F. G. Gedney, for resp’t.
   Per Curiam.

The justice had no jurisdiction to render the judgment he did in this case, because he rendered1 it after the time limited by the law for his doing so. This appears from the return itself. Therefore the judgment must be reversed with costs.


text:
    Marshall P. Stafford, App’lt, v. Charles Azbell, Resp’t.

      (New York Common Pleas, General Term,

      Filed May 17, 1894.)

    Conversion—Tenants in common.
    An action for conversion cannot be maintained by one tenant in common against a co-tenant.
    Appeal from a judgment on the dismissal of the complaint at trial term.

      Marshall P. Stafford for app’lt; Vanderpoel, Camming & Goodwin (Delos McCurdy, of counsel) for resp’t.
   Per Curiam.

We do not think it necessary to take this case under further advisement. It seems to us that the election by the plaintiff of a cause of • action in tort, made it necessary for him to show that there was a conversion of the money claimed. The mere reception of the money did not constitute a conversion.

There is no pretence that there was a demand of this money made at any time. Besides, it is admitted that there was a reciprocal interest on the money, and hence they were tenants in common of it and an action for conversion cannot be maintained under such circumstances; McMahon et al. v. Rauhr, 47 N. Y. 67, et seq. The judgment must be affirmed, with costs.


author: The Court.

text:
    Fred H. Williams, App’lt, v. Charles C. Dodge, Resp’t.

      (New York Common Pleas, General Term,

      Filed May 17, 1894.)

    Attorney and client—Compensation.
    In the absence of any proof as to whether, by the laws of another state, a lawyer can maintain an action there for his services, the presumption is that the common law rule prevails and that counsel fees for services rendered cannot he recovered.

      Stillman & Heaney (Howard Y. Stillman, of counsel), for app’lt; J. A. Dennison, for resp’t.
   The Court.

Mr. Stillman, whereabouts are your exceptions to the judge’s charge ?

Stillman: I claim it is not necessary that we should take exceptions to the judge’s charge.

The Court: Of course it is not absolutely necessary, but if you do not rely upon your legal exceptions, you must show us that manifest injustice has been done by the jury. We have carefully ex.amined the case which is very short, and do not find that there is .any evidence of injustice having been done to the plaintiff such as would warrant us in setting aside the verdict which the jury rendered. Nor do we think the objection and exception which you took to the evidence which was admitted was well taken. It was clearly in rebuttal of testimony which you gave and it was pertinent to the issue before the jury.

There being no exceptions to the charge, concerning which you have argued and there being no such manifest injustice as would warrant us in setting the verdict aside on that ground, we think this judgment should be affirmed. It was a question for the jury to determine on the facts and we think they have made no error in the conclusion to which they arrived.

There is a grave question back of all this. You have not shown that by the laws of Massachusetts a lawyer can maintain an action for his services. In the absence of any proof on that rgubject the presumption is that the common law rule prevails and counsel fees for services rendered cannot be recovered. There is no proof on that subject. Nor does the complaint contain any ■allegation that under the laws of Massachusetts a lawyer can recover for his services. The judgment must therefore be affirmed, with costs.


author: Pratt, J.

text:
    James H. Van Inwegen, Resp’t, v. The New York, Lake Erie and Western Railroad Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February, 1894.)

    Appeal—Verdict.
    The opinion of a plaintiff that the act of the engineer was willful and malicious, and not performed in defendant’s service, does not preclude the jury from rendering a verdict in his favor.
    Appeal by the defendant, The New York, Lake Erie and Western Railroad Company, from a judgment of the supreme court in favor of the plaintiff, entered in the office of the clerk of •the county of Orange on the 5th day of July, 1893, upon the verdict of a jury for $375, after a trial at the Orange county circuit, and also from an order entered in said clerk’s office on the 9th day of August, 1893, deny the defendant’s motion to set aside the verdict and for a new trial, made upon the minutes.
    This action was brought to recover damages for personal injuries alleged to have been sustained by the plaintiff by reason of the frightening of the team which he was driving, causing them to become unmanageable and to run away, whereby he was thrown violently from his wagon. The complaint alleged that his team was frightened by an employee of the defendant’s causing a whistle attached to their locomotive to be suddenly and violently blown and at the same time causing steam to be emitted from such locomotive in large quantities, without the slightest reason or cause therefor, and against the request of the plaintiff.

      Lewis E. Carr, for app’lt; John W. Lyon, for resp’t.
   Pratt, J.

The principal argument urged against the verdict is that, if plaintiff was correct in his interpretation of the engineer’s action, it was willful and malicious, and not pérformed in the service of defendant. The answer to that argument is that the opinion of the plaintiff was not binding on the jury, who were the judges of that question. The engineer testified that he blew the whistle in the course of his duty for the purpose of moving the cars. The jury had a right to believe the engineer. They were also authorized by the-testimony to find that the action of the engineer was heedless, and without due regard to the situation of the plaintiff. The charge of the court correctly laid down the law, and the testimony warranted the verdict. The judgment should be affirmed.

Cullen and Dykman, JJ, concur.

Judgment and order denying new trial affirmed, with costs.


text:
    Almeda Waterbury, Resp’t, v. James Eliphalet Waterbury. Harriet E. Drew, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February, 1894.)

    Attachment—Affidavit.
    An affidavit, if sufficient to call upon the court to exercise its discretion, will suffice to give jurisdiction to issue an attachment.

      Appeal by Harriet E. Drew, a subsequent lienor, from an order of the supreme court made at the Orange county special term, and entered in the office of the clerk of the county of Orange on the 27th day of ¡November, 1893, denying her motion to vacate a warrant of attachment. '
    The affidavit upon which the warrant, of attachment in the action was granted was as follows:
    “ Almeda Waterbury, being duly sworn, says that she is the. plaintiff in the above-entitled action; that a summons has been issued in said action accompanying this application, which is brought to recover the following sums of money only, to wit, the sum of $2,150, with interest on $1,500 thereof from July 2,1892; interest on $500 thereof from March 1, 1893; and three years’ interest on $150 thereof.
    “ Also to recover the sum of $500 on note given to Theodore Sly and one year’s interest' due thereon ; also to recover $600 on note given to Wallace J. ¡Dhsinberre and interest thereon, both of which said notes are owúed and held by this plaintiff, and that plaintiff claims and is entitled to recover therein from the defend■ant, J. Eliphalet Waterbury, the said sum as damages for breach of contract.
    “ Said notes above mentioned are all over- due and payable at this date, and are over and above all counterclaims known to her, and she is entitled to recover said sums of money and all thereof upon a cause of action above set forth, existing in her favor against the said defendant, arising out of the following facts: The plaintiff above named is now the owner and holder of three certain promissory notes executed by the said defendant and payable to the plaintiff, one for $1,500, one for $500, and one for $150, all of which are over due, and upon which interest is due as above stated. The plaintiff is also the owner and holder of the two following described promissory notes, one given by defendant to Theodore Sly for the sum of $500, with ititerest for one year, thereon; also one other note given by defendant to W. J. Dusinbe„rre for the sum of $600, together with the interest thereon, and which said notes are now owned and held by this plaintiff.
    “ That the defendant, J. Eliphalet Waterbury, is .a resident of the state of ¡New York; that he has departed therefrom with intent, as this -deponent believes, to defraud his creditors, and the grounds of her belief are as follows:
    “ That the said defendant on the morning of the 21st day of September, 1893, departed from his home in the county of Orange, where he then and heretofore had always resided, without stating to any person his place of destination, or where he could he addressed or found, or When he- would return, and he still remains absent from his said home, and has not been seen or heard from since his said departure; that said defendant is heavily in debt, and is involved in an amount equal, if not exceeding all property whatever which - he owns, or of which he was possessed at the time of his departure; that he stated to deponent just prior to his departure that he had not money sufficient to pay his interest, and that he' was going to the fair then held in the village of Warwick, Orange county, W. T.; that defendant did not go to such fair, but, on the contrary, went in an opposite direction, and has not since been heard from. And that since the departure of the said defendant from his said residence and on the 29th day of September, 1893, a barn and stable attached upon his premises were burned by fire, and the security of this plaintiff was thereby further reduced and imperilled.
    “ And deponent further states that no previous application for a warrant of attachment has been made in this or any action.
    “ The plaintiff, therefore, applies for a warrant of attachment against the property of the said defendant, J. Eliphalet Waterbury, as provided by the Code of Civil Procedure.
    “ Almeda Waterbury.”

      M. K Kane, for app’lt; J. V. D. Benedict, for resp’t.
   Pratt, J.

We think the affidavit of plaintiff was sufficient to call upon the court to exercise its discretion, and that will suffice to give jurisdiction.

In opposition to the motion to vacate the attachment the plaintiff argues that the moving papers do not show a valid attachment in favor of the subsequent creditor. As we are of opinion that plaintiff’s papers are sufficient, we are not compelled to analyze those of the subsequent creditors. The order should be affirmed, with costs.

Cullen and Dykman, J.J., concur.

Order affirmed, with ten dollars costs and disbursements.


author: Wright, J.

text:
    Martha G. Ham, Pl’ff, v. William W. Gilmore, Impleaded, etc. Def’t.

      (Supreme Court, Onondaga Special Term,

      Filed, March, 1894.)

    1. Fraudulent conveyance—Member of family.
    A voluntary conveyance by an insolvent to a member of his family is presumptively fraudulent.
    2. Same—Proof.
    Fraud may be established by circumstances against the denial of such intent by both grantor and grantee.
    3. Same.
    The fact that a party, who is under no disability, does not testify, may be considered in determining the question of fraud in relation to an act in which she was a participant.
    Action to foreclose a mortgage; defense, fraud.

      Baldwin & Ide, for pl’ff; Fuller & Glen, for def’t.
   Wright, J.

The mortgage in question is dated February 24, 1885, and purports to secure $1,800 and interest, and was executed by the defendant Edward E. Ham to his attorney, Joshua B. Bandall, who, on the same day, assigned the same to Sarah E. Ham, the wife of the mortgagor, and she, on the 14th day of January, 1892, assigned the same to the plaintiff, who is the daughter of said Edward E. and Sarah E. Ham, with whom she then resided.

No consideration passed from the mortgagee, Randall, to the mortgagor, and none on said assignments at the times of these .transactions.

The plaintiff claims that the mortgage was'given in pursuance of a prior arrangement with his wife, as security for an indebtedness then owing by him to her," the title passing through Randall as a matter of accomodation.

The defendant Gilmore claims that the mortgage was given without consideration from any one, and for the fraudulent purpose, to the knowledge of all parties, of preventing the collection of certain claims upon which the mortgagor was liable to him, one of which*, on the 2d" day of January, 1891, ripened into a judgment in favor of said Gilmore against said mortgagor for $1,069.47.

To determine these questions of fraud and of lack of consideration, it is necessary to go considerably into the business history of the mortgagor and his wife, and her sister, Helen Gilmore, and also into the business history of the mortgagor and the defendant Gilmore. First, as to the consideration:

Mr. Ham claims that his indebtedness to his wife arose from loans of money. Her only source of income to any important extent, was her father’s estate, and ihe last date of her receivnig any sum therefrpm, was April 2, 1864, and it amounted to—

$4,484 75
Interest to January 1, 1880, at seven per cent....... 4,944 44
Interest to February 24,1885, at six per cent....... 1,385 03
Promissory notes for which Losey mortgage was
given........................................ 1,778 00
Total at date of mortgage.................... $12,592 22

This is all that Mr. Ham can be charged with, including the $300 paid by Mrs. Ham into the Shuler trade hereafter mentioned.

He paid his wife as follows:

May 25, 1871,, equity in the Shuler place......... $5,500 00
Interest to January 1, 1880, at seven per cent____ 3,311 00
Interest from January 1, 1880, to February 24,
1885, at six per cent.......................... 1,699 00
May 14,-1880, money obtained.from Eliza Weaver, 3,000 00
Interest to February 24, 1885.................... 860 00
May 25,1882, No. 21 Adams, street property...... 2,500 00
Interest to February 25, 1885.................... 412 60
Total paid up to date-of mortgage..........; $17,282 00

Therefore, instead of Ham being indebted to his wife when he gave her ’ this mortgage, she was indebted to him in the sum of $4,689.78. The proposition that the mortgage was given without consideration must, therefore, be decided in the affirmative.

Secondly. Was it given fraudulently as to Gilmore’s claim on which his judgment is founded?

On December 19, 1866, the defendants Edward E. Ham and William W. Gilmore, who were in partnership as merchants, borrowed from the defendant Sarah E. Ham $675, and gave their firm note therefore. Gilmore left the state in 1869.

On February 24, 1885, the date of the mortgage, this note was still held by Mrs. Ham, and though as to Mr. Ham it personally was subject to the defense of the statute of limitations, yet, because of Gilmore’s absence from the state, the partnership and Gilmore personally remained liable thereon, and in case Gilmore should be compelled to pay it, Ham would be liable to pay Gilmore his one-half thereof. This was the contingent liability of Ham to Gilmore on this note matter at the' date of the mortgage. Afterwards Gilmore was sued by the defendant herein, Sarah E. Ham, on said note, and was compelled to pay the same, and Gilmore thereafter brought suit against Edward E. liara for his proportionate share thereof, and on January 20, 1891, secured thereon the judgment set up in the answer for $1,069.47.

The mortgage covers all the property which the mortgagor owns, and which is of little, if any, value in excess of the face amount of the mortgage with the interest thereon.

Other transactions tend to illuminate this matter.

Gilmore, in the year 1869, suddenly left the state and remained away for many years. He left the entire partnership property in the hands of his partner, Edward E. Ham. The value of that property is placed by Mr. Ham at about $1,000 or $1,200, but Gilmore testifies that a short time prior to his leaving they took an inventory thereof, and that at the time he left the state it was worth the inventoried value, viz., $7,000.

He also testified that Mr. Ham, himself, also, on a former trial testified that it was worth at that time the sum of $7,000, and Mr. Ham on this trial expressly declined to make a positive denial that he did so testify. They were the only witnesses on the question of value.

Also, considering the intelligence of these parties, it is hardly probable that Ham and Gilmore would undertake to support their families in their apparently good social standing by a mercantile business on a capital stock of only $1,000 or $1,200 in value.

It must, therefore, be fixed at $7,000. The firm indebtedness was about $800. What became of this property ?

Ham, after Gilmore left, took sole possession of it and kept the business along until May 25, 1871, when he sold the same to one Shuler, who in consideration thereof and of the $300 above mentioned, furnished by Mrs. Ham, conveyed to her real estate of the value of $5,500.

The partnership matters were in that unsettled condition, and Mr. Ham was liable to be called to an accounting by Gilmore for his interest therein, at the time when this mortgage was given.

Again, it appears that before this mortgage was made Mr. Ham had been engaged in fraudulently covering property of his wife’s sister, Helen Gilmore, to enable her to escape liability on her debt which Gilmore held against her.

An actioii had been brought against her in the United States district court, and pending that action and fraudulently to avoid liability thereon, she, on March 6, 1880, transferred all her property, real and personal, to her said brother-in-law, Edward E. Ham, without consideration, and 'he, on May 14, 1880, sold part of it for $8,000, and gave the money to his wife. Thereafter judgment passed against Helen Gilmore.

The defendant Gilmore purchased that judgment and brought an action thereon in the supreme court of this-state to make 1 he judgment of the United States district court a judgment of this court, and on February 20, 1885, he obtained a judgment thereon against said Helen Gilmore for $2,276T0. This occurred four days before the mortgage was made in this action. Ham and his wife knew that they were liable to be called to an accounting by Gilmore in a creditors’ action on this judgment (which was after-wards successfully brought) for the property of their sister, Helen Gilmore, which they were endeavoring to cover and secrete.

At the time of giving this mortgage by Ham to his wife (through his attorney), we find, therefore, this condition of things existing: Mr. Ham liable contingently to Gilmore on the note matter for about $1,000; liable to an accounting to' Gilmore for his share of the partnership assets, worth $7,000, less his share of the indebtedness paid by Ham and interest; liable jointly with his wife to an .accounting to Gilmore for the value of the property of their sister, which they were fraudulently covering, in the sum of $2,276.10, and Mr. Ham insolvent.

A voluntary .conveyance by an insolvent to a member of the family is presumptively fraudulent. Smith v. Reid, 134 N. Y. 588; 48 St. Rep. 156.

Mr. and Mrs. Ham testify that fraud was not intended by them, but fraud may be established by circumstances as against the denial of such intent by all the witnesses interested in supporting the validity of the transaction. Parker v. Conner, 93 N. Y. 118 ; Van Mater v. Burns, 58 St. Rep. ; 27 N. Y. Supp. 624.

The plaintiff, though it does not appear that she was under any disability, did not testify, and this circumstance may also be considered in determining the question of fraud in relation to the act in which she was a participant. Bleecher v. Johnston, 69 N. Y. 309; Whitney v. Town of Ticonderoga, 127 id. 46; 37 St. Rep. 135.

Reason cannot infer from this array of suspicious looking facts and all the testimony any other conclusion than that the mortgage was given by the mortgagor and was accepted by his attorney, and by his wife and daughter under their several assignments, for the purpose of defrauding the defendant Gilmore out of the claim on which his judgment was obtained, and generally out of all his said claim against the mortgagor.

This conclusion is sustained by Coleman v. Burr, 93 N. Y. 17; Parker v. Conner, id. 118; Smith v. Reid, 134 id, 568 ; 48 St. Rep. 156.

The mortgage must be adjudged null and void as against Gilmore, and his judgment to be a lien prior thereto on the premises ■described therein. 2 R. S. (Birds. ed.) 1236, § 19.

Ordered accordingly.


author: Kellogg, J.

text:
    Jacob Klueg, Pl’ff, v. John Bosch, Deft.

      (Supreme Court, Kings County Circuit,

      Filed June, 1893.)

    COBFOBATIONS—STOCKHOLDER’S LIABILITY.
    A stockholder of an insolvent corporation cannot bring an action at law against another stockholder to enforce the liability imposed by § 10, chap. 40 of 1848.
    Motion to dismiss the complaint on the ground that plaintiff was also a stockholder in the same company.

      Charles Reinhart (Daniel Cameron, of counsel), for pl’ff; Thomas E. Pearsall and Isaac M. Kapper, for def’t..
   Kellogg, J.

This action was tried by the court without a jury. It presents the single question as to whether a stockholder in an insolvent corporation may bring an action at law against another stockholder on a liability created by failure to file a certificate and have the same recorded in the county clerk’s office, showing the entire capital stock to have been paid in, as provided by the Laws of 1848. It seems to have been well settled in this State, by decisions of the courts, which have been uniform so far as the same question has arisen, that no such action will lie. Convincing reasons why such an action will not lie were given in the case of Bailey v. Bancker, 3, Hill, 188. I think the plaintiff in this case must be relegated to his action in equity against all stockholders, and that this complaint should be dismissed, with costs.


author: Lawrence, J.

text:
    The Mayor, Etc., of the City of New York, Pl’ffs, v. The New York Refrigerating Construction Company et al., Def’ts. Same v. Same.

      (Supreme Court, New York, Special Term,

      Filed April, 1894.)

    1. Contract — Construction.
    A practical construction of a contract by the parties thereto, though it has not the force of a judicial decision, is of great weight and should not be lightly disregarded.
    2. Franchise — Power 'of sinking fund commissioners.
    Where, in a franchise granted by the city, the only power reserved to - the commissioners of the Sinking Fund is to notify the grantee, upon failure to comply, to discontinue its operations thereunder, they cannot pass a resolution cancelling the franchise so as to destroy accrued rights and liabilities.
    3. Same — Discontinuance.
    Upon such discontinuance, the existing rights and liabilities of the parties are preserved.
    4. Same — Guarantor.
    In such case, the liability of a guarantor for rent in arrears, can only be discharged by payment, release or other satisfaction.

      5. Same — Permit.
    Where the action of the common council in granting a permit to open the street for the purpose of laying pipes involves the exercise of discretion and judgment, one who obtains a franchise from the city, necessitating the laying of pipes, takes it subject to any delay, or oven an absolute refusal, on the part of the common council, to grant such permit.
    6. Same — Rescission — Damages.
    In case of an absolute refusal or serious delay, the gi-antee can elect to either rescind the franchise or claim damages for the delay.
    7. Same — Waives.
    Even though the granting of a permit is a condition precedent to "the right of the city to maintain an action for installments of rent due under the provisions of a franchise, it is waived by the payment of rent during the time the permit is withheld.

      William IT. Clark {David J. Dean and Terence Farley of counsel), for pl’ffs ; Burton N: Harrison, for def’ts.
   Lawrence, J.

These actions are brought to recover certain sums which are alleged to have become due from the defendant, the New York Refrigerating Construction Company, to the plaintiffs, pursuant to the provisions of an agreement entered into between said corporation and the plaintiffs on the 15th of May, 1890. The other defendants are the sureties who joined with the New York Refrigerating Construction Company in the execution of a bond to .the plaintiff, the condition of which was that if the said the above bounden, the New York Refrigerating Construction Company, shall well and truly, and in a good, sufficient and workmanlike manner perform the said contract, and each and every provision therein contained on its part to be done and performed, and sháll maintain the said apparatus in accordance with the terms and provisions in said contract stipulated, and shall in each and every respect comply with the conditions therein contained, then this obligation to be void; otherwise to remain in full force and virtue.

It is claimed on the part of the plaintiffs in the first action that an installment became due from the New York Refrigerating-Construction Company to the plaintiffs on the 1st of February, 1891, amounting to $1,375, and that a further installment of said amount became due on the 1st of May, 1891. ,

The second action is brought to recover two further installments alleged to have become due to the plaintiffs in accordance-with the terms of the agreement aforesaid on the 1st day of August and 1st day of November, 1891, each installment being for the sum of $1,375.

The defendants, by their original answer, after denying that the sums aforesaid became due under the terms of the agreement aforesaid, and after alleging a willingness and tender to perform on the part of the defendants, averred that any non-fulfillment of the terms of the agreement was caused by the failure and neglect of the plaintiff to perform its part of the obligations in the premises, and they averred that they had never received any receipts-whatever from thestandholders in’the market, and that the plaintiffs have never become entitled to any percentage on the gross-receipts; and by a supplemental answer the defendants allege that subsequent to the commencement of the action, and on or about the 13th of March, 1893, the plaintiffs canceled and annulled the said agreement of May 15th, 1890, of which cancellation and annulment notice in writing, dated April 3d, 1893, was served on the defendants, and it is averred that by reason thereof the defendants were released and discharged from every obligation or liability upon the bond in the complaint mentioned; and they further aver that the defendants have accepted and acquiesced in such cancellation and annulment.

By the agreement of the 15th of May, 1890, the plaintiff granted to the defendant corporation permission to introduce into the market known as the New West Washington Market, its refrigerating apparatus for the purpose of supplying to the stand-holders in said market, at certain specified rates per cubic foot, cold air for preserving, etc., and to maintain the said apparatus in said market for said purpose, for the period of ten years from the date of said agreement.

It was further provided in said agreement as follows:

“VII. The said party of the second part further agrees that it will pay into the city treasury quarterly for the privileges .herein set forth on the first day of August, November, February and May in each and every year, five per cent of the gross receipts for the quarter then last passed, from the standholders in said market, and the additional sum of $5,500 per annum, such additional sum to be paid íji equal quarterly installments on the above days in each and every year."

Paragraph X provides “ that the said party of the first part hereby grants permission to the said party of the second part to introduce said apparatus for said refrigerating purposes, in said New West Washington Market, and to maintain the same therein for the period of ten years from the date, of this contract.”

On the 30th of March, 1893, the following preamble and resolutions were adopted at the meeting of the commissioners of the sinking fund:

“Whereas the comptroller certified in writing to the commissioners of the sinking fund on February 23d, 1893, that in his opinion the New York Refrigerating Construction Company is not performing each and every provision of the agreement made by it with the city, dated May 15th, 1890, to furnish cold air for refrigerating purposes in West Washington Market: and

“Whereas a copy of such certificate has been furnished by the comptroller to the said company; and

“Whereas the company has failed to appear this day in response to due notice in reply to the charges and its own defense; therefore

“Resolved, that the commissioners of the sinking fund hereby find and declare that the charges have been sustained, and the comptroller is authorized and directed to notify the New York Refrigerating Construction Company to discontinue its system, and to remove all pipes, fixtures and connections, and to restore the Mew West 'Washington Market building or buildings to their original condition as provided for in said agreement.

“Resolved that the agreement with the Mew York Refrigerating Construction Company of May 15th, 1890, for supplying refrigeration in the Mew West Washington Market be and hereby is canceled and annulled. “ Richard A. Stores,
Secretary.”

The condition of the bond has already been stated, and also the defense interposed by the defendants. It is contended on the part of the defendants, in the first place, that it was the intention of the parties, that whatever the plaintiffs were to receive from the defendant company was to come out of the receipts of the business done in furnishing refrigeration to'the standholders in the market, and that, as it is admitted that there have been no such receipts, the plaintiff should not be allowed to recover anything.

I do not think that the position is tenable. The obligation under the seventh clause of the agreement is to pay, in addition to the gross receipts, the sum of $5,500 per annum, such additional sum to be paid in equal quarterly installments, etc. This provision is independent of the gross receipts, and, as thp agreement states, additional thereto. The plaintiffs did not guarantee that there should be any receipts from the standholders by the defendant corporation. If there were such receipts, the plaintiffs were to be entitled to five per cent, upon the gross amount received, but the sum of $5,500 per annum was, as I read the contract, to be paid in any event in quarterly installments without regard to the success or failure of the enterprise. Furthermore, it is well to bear in mind that the company, there having been no receipts, recognized its obligation to pay, and did pay from the time of the making of the agreement until the 1st of February, 1891, which ^was an admission on the part of the defendant corporation of its liability, and a practical construction by the parties of the contract; and such a construction, although it has not the force of a judicial decision, is of .great weight and should not be lightly disregarded. Power v. Village of Athens, 26 Hun, 282-287; Easton v. Pickersgill, 55 N. Y. 310-315.

It is'also contended that there is a complete defense for the three individual defendants, as sureties in the bond sued on, for the reason that the complaint does not charge any default of the company as to any matter for which the sureties in the bond became thereby bound; and it is claimed that the recital in the bond should control the condition therein contained, and that, if there is any conflict between the two, that the latter should give way to the former. This cannot, I think, be maintained. There is no conflict between the recital in the bond and the condition thereof. The recital refers to the agreement as being annexed to the bond, and the condition of the bond is that the contracting parties shall, in each and every respect, comply with the conditions in the contract contained.

There is no pretense that there was any fraud practiced upon the sureties, or any concealment as to the obligation which they were to assume. It must be presumed that they read the instrument which, it is recited in the bond, was prefixed thereto, and that they knew each and every condition therein contained, and they bound themselves that the contract should be in every respect performed and fulfilled.

The cases cited by the learned counsel for the defendants do not, in my opinion, have any application to this case, because there is no conflict and there is nothing, therefore, left for construction; and also because the agreement between the corporation and the plaintiff is annexed to the bond and forms a part thereof. It is also claimed by the defendants’ counsel that each of the defendants had a perfect defense to the plaintiffs’ claim, because the agreement of May 15, 1890 was canceled and annulled by the resolution passed by the commissioners of the sinking fund on the 30th of March, 1893, followed as it was by the notice contained in the comptroller’s letter of April 3, 1893. Such I do not think can fairly be said to be the effect of the resolutions of the commissioners of 'the sinking fund. The resolutions were passed pursuant to the provision of the agreement which declares that “ if at any time the said comptroller shall be of the opinion, and shall so certify to the commissioners of the sinking fund in writing, that the party of the second part is not performing each and every provision of this agreement; * * * and a copy of such certificate shall be furnished by the comptroller to the party of the second part, and that after a reasonable opportunity shall have been afforded to the said party of the second part to be heard in reply to the charges, and in its own defense before the board of sinking fbnd commissioners, then, and in such case, the commissioner, upon the direction of the commissioners of the sinking fund given after such hearing had, shall have the power to notify the said party of the second part to discontinue tire said system,” etc. I am of the opinion that discontinuing the system does not mean the cancellation of any claim which may have accrued to the plaintiffs by reason of the failure of the defendant corporation to perform its obligations under the contract. Discontinuance of the system looks to the future and not to the past, and when the discontinuance takes place the rights and liabilities of the parties up to the time of discontinuance are preserved. This, I think, is the clear construction of the terms of the agreement. It is, however, contended by the defendants that as the commissioners of the sinking fund resolved that the agreement “is cancelled and annulled,” the court cannot look at the surrounding circumstances, but must be governed by what is claimed to be tire effect of the strict letter of the resolutions.

It will be observed by examining the fifth paragraph of the agreement of May 15, 1890, that the only power reserved to the commissioners of the sinking fund is to notify the party of the second part to discontinue the system, and no power is confided to the commissioners to destroy the rights and obligations which, up to that time, have accrued; and if the legitimate construction of the language employed in the resolution of the commissioners is such as the defendants contend for, the resolution is not binding upon the plaintiff. Furthermore, no power is reserved in the agreement in question to the commissioners of the sinking fund to waive any indebtedness which may have been incurred by the defendant corporation, or by the sureties, either in the contract or by law.

' Under the consolidation act (§ 123) the comptroller is the proper officer to settle and adjust claims in favor of or against the corporation. The duties of the sinking fund commissioners are prescribed by § 170 of that act, and'among them we do not find an authority to compromise claims alleged tq exist in favor of the city against its debtors. Again, it has been held that after the liability of the guarantor of rent has become fixed for rent in arrear, such liability can only be discharged by payment or other satisfaction ; that it will not be discharged, by the surrender by the lessees of the unexpired term in possession of the demised premises, without the knowledge or consent of the guarantor upon an agreement that the lessor will release his claim for rent yet to accrue, but that such surrender shall not affect his claim for rent already due. Kingsbury v. Williams, 53 Barbour’s R. p. 142; Kingsbury v. Westfall, 61 N. Y. p. 356. In that case, Gray, commissioner, after stating that the guarantor, like a surety, is bound only by “the strict letter or precise terms” of the contract of his principal, whose performance of it he has guaranteed that he is in this respect “a favorite of the law,” and that a claim against him is strictissimijuris, goes on to say: “This just principle is now invoked by the defendant and sought to be interposed by him as a shield against the plaintiff’s right to recover, not upon any portion of the contract upon which a liability was to accrue when the change was made, or upon any portion of it changed by the new agreement, but because, as he says, the parties, the one by releasing, to the the lessee the residue of the term in the demised premises, and the other releasing to the lessee the rent to accrue therefor for the same unexpired term, have, without his conserit, changed the contract, the performance"of which on the part of the lessee he had guaranteed. It is true the contract was changed, but the obligation which the lessees undertook to perform, so far as it relates to the payment of the rent which had then accrued, was not changed, It remains in the precise terms it was before; it was, as to the then future, the executory portion of it that was abrogated.”

This case seems to me to be in point in the case at bar. By the resolution of March' 30th, 1893, rights which had accrued were not changed, canceled or annulled. The cancellation or annulment was, I think, under the circumstances, prospective, and related to the discontinuance of the system introduced by the defendant corporation in the future, without impairing rights and liabilities which may have accrued in the past.

In the view which I have taken of this case, it seems unnecessary to discuss whether the delay of the common council to act upon the application of the defendant corporation for a permit affords any answer to the claim of the plaintiffs. The delay complained of occurred between the 12th of May and the 2d of July, 1890, and the corporation has paid the installments which became due for that period of time, apparently voluntarily, and without any protest or claim that they had been injured by such delay. It may, however, be said in this connection, that as by the consolidation act the granting of permits for laying pipes in the public highway is vested in the common council, and as the granting of such permits involves discretion and judgment, the defendants must be held to have taken their contract subject to such delay, or even to an absolute refusal on the part of the common council to grant any permit. It would have been tlieir right, if such permit was absolutely refused, or if the delay was of such a serious character as to imperil the successful operation of the refrigerating system which they proposed to introduce, to rescind the contract or to claim damages therefor ; but as the corporation paid the installments which became due during that period, and prosecuted the work of introducing their system into the market, it cannot now claim that it is not liable to pay such, installments as have subsequently become due. If the granting of the permit by the common council was a condition precedent to the right to maintain an action for the rental installments, it could be, like any other condition, waived, and that such waiver was made the proof shows. Wiley v. Athol, 150 Mass., pp. 435 and 436, and cases cited.

For these reasons I am of the opinion that the plaintiffs are entitled to recover in each of these actions the amount demanded by them in their complaint. Findings may be settled on two days’ notice.


author: Hardin, J.

text:
    The People, Pl’ff, v. John Y. McKane, Def’t.

      (Supreme Court, Herkimer Special Term,

      Filed February, 1894.)

    Appeal—Stay—Criminal law.
    An application for a certificate, under section 527 of the Code of Criminal Procedure, will be denied where it appears that a similar application has been made to, and denied by, another judge.

      JEx parte application by defendant for a certificate under § 527 of Code of Criminal Procedure.

      George W. Roderick and A. M. Mills, for petitioner.
   Hardin, J.

Chapter 1 of title 11 of the Code of Criminal Procedure authorizes the defendant to appeal from the judgment rendered against him, “as a matter of right.” See Code Cr. Proc. § 520. Section 527 jiro vides that a stay of the execution of the judgment shall be had, provided there is filed “a certificate of the judge who presided at the trial, or of a justice of the supreme court, that in his opinion there is reasonable doubt whether the judgment should stand, but not otherwise.” In People v. Wentworth, 3 N. Y. Cr. R 111, I had occasion, to some extent, to state the rules which should be applied upon an application for a certificate.

The defendant was indicted, with three inspectors of election,' forming the registry board of the first election district in the town of Gravesend, for violation of the election law found in chapter 693 of the Laws of 1892, as amended by chapter 692 of the Laws of 1893. He was charged with a felony, and convicted, and, judgment rendered against him on the 19th day of February, 1894, and sentenced to imprisonment in the state’s prison in Srng Sing for the term of six years. He is therefore not entitled to submit an application for a certificate mentioned in § 527 of the Code of Criminal Procedure “until such notice as the judge may prescribe has been given to the district attorney of the county where the conviction was had of the application for the certificate.” His counsel ask that a notice shall be prescribed, and thereupon given to the district attorney, of his application, and that in the meantime a stay of the execution of the judgment should be awarded, and that a hearing should be allowed in pursuance of the notice; at which the record of the trial may be presented, and. the rulings and charge and evidence be" examined. From the papers presented on this application, it appears that a similar application was presented to Judge Cullen, one of the justices of the judicial district where the trial took place, and that an extensive argument was had before him by the learned counsel for the defendant, as well as by the counsel for the people, and that he took the case into consideration, and deliberately delivered a very careful and clear opinion, covering the numerous ques- ■ tions presented to him in the application for a certificate; and, in pursuance of the conclusion reached in that opinion, he denied the application for a certificate. That decision, made by him under those circumstances, remain in full force and virtue. When the application for a stay of proceedings was presented to me in 1874 by the defendant’s counsel in People v. Tweed, 67 Barb. 496, in the ■course of the opinion I said:

“ Indeed, in cases of a criminal character, which have been had before an oyer held by me, such, applications have uniformly been made, and no writ with a stay of proceedings has been granted by another officer after such conviction. Such course is conducive to harmony, and common courtesy among judicial officers is promoted by it This consideration should have its force in this case, inasmuch as this application is made outside of the judicial district in which the trial took place.”

Although it is not in terms provided in § 527 of the Code of Criminal Procedure, or in § 529, that an application to one judge, only, shall be made for a certificate, it is to be observed that the sections do not, in terms, authorize applications to be made to several and successive judges. Judge Ingraham in Loving v. Guita Percha Co., 30 Barb. 646, said that some time since it was held in the first district that the decision of another cdurt of co-ordinate jurisdiction should be respected, and regarded as controlling, until reversed. In Harris v. Clark, 2 Barb. 101, Gridley, J., observed:

“We believe in a rigid adherence to the doctrine of stare decisis. We regard it as necessary to preserve the certainty, the stability, and the symmetry of any "system of jurisprudence.”

Although, according to the precedents, the doctrine of stare decisis is not applied, with all its vigor, to nonenumerated motions, yet it is founded in principle that is wholesome to apply where efforts are made to obtain different results upon similar questions,or the same case, by presenting such questions in the case to different judges of co-ordinate powers and jurisdiction. It appears the defendant had the benefit of a very extended trial, in which he was represented by able counsel, which was presided over by a learned justice of this court, apparently with care and ability, and he has had the benefit of a full and careful investigation of the rulings, decision, and evidence taken upon the trial by another learned judge of the supreme court. And the presumption that arises that the judgment is right, as well as the presumption that .the certificate was properly refused, arising from the fact that the judge who heard it made a careful investigation of all the leading questions presented to him, as evidenced by the opinion submitted upon this application, to which may be added the circumstance that the application now pending is made outside of the district where the trial took place, and outside of an adjacent district, and to a judge whose services are required in discharge of his duty as a member of the general term of the fourth judicial department, and who, therefore, cannot well spare the time necessary to review the trial, which required the taking of some 4,000 pages of evidence, or review the decision made thereafter by the judge who heard a similar application, render it proper that the present application should be denied, and that the stay of execution asked for should be refused.

Application denied. Stay refused


author: Sedgwick, C. J.

text:
    Miles E. Griffiths, App’lt, v. The New Jersey and New York Railroad Company, Resp’t.

      (New York Superior Court, General Term,

      Filed April 2, 1894.)

    Master and servants—Appliances.
    The owner of a building is not liable for injuries to an experienced , carpenter employed thereon, in consequence of an obvious defect in a joist which he assisted in placing therein.
    Appeal from a judgment entered on an order dismissing the complaint, and from an order denying a motion for a new trial on the judge’s minutes.
    The defendants were building a station house, to be made of wood. The plaintiff was a carpenter. He was hired by the master mechanic. He went to the building, and was placed under the order of one Horn, who was the foreman of the working men there. Horn worked as a carpenter when not engaged as foreman. Besides Horn there were three journeymen upon the work. Materials from which to make tiebeams were sent to the building. Horn and another workman cut and fitted this material. The plaintiff assisted in placing these tiebeams at about the height of a proposed ceiling above the floor. Then across these beams, boards were stretched, to be used as a staging on which to work. Four workmen, the plaintiff among them, went and worked upon the staging. For some purpose the men came close together, and one of the tiebeams broke, letting the staging fall. The beam that broke was weak, by reason of a large knot in it The plaintiff fell to the cellar, and suffered great damage. The complaint was dismissed on trial.

      Ewing & Whitman, for app’lt; George Homes, for-resp’t.
   Sedgwick, C. J.

The accident was caused by the giving away of the tiebeam. There was no evidence to go to the jury that the staging fell because the tiebeams were too far apart. The first position, only, will be examined. The plaintiff’s learned counsel argues, that the defendants were negligent in failing to make an inspection of the material, that would discover the unsound condition of the tiebeam that broke, and that, on the particular occasion, Horn was their substitute, and his negligence was theirs. I do not agree with the proposition. The result would be that an employer would fail in duty if he did not use ordinary diligence in causing material on which carpenters employed by him were to work to be free from dangerous objects. Observe, on the other hand, from the plaintiff’s testimony, his own relation to the possibility of such defects, and his intelligence on the subject. He was 52 years of age,'and had been a carpenter for 20 years. After he went on the work, he and his fellows got the frame up, and the plate and the studding, and began to do the sheathing. He helped put the tiebeams in position. After the accident, and before he could be removed from the place he had fallen, he looked up, and saw that there was a knot in the beam, and made up his mind that “ that was what had caused the accident.” Mr. Horn was working at the same time with us. He, with some other man, framed these tiebeams, and measured them off, and cut the ends off so they wouldfit, while they were down on the ground.” Once Mr. Horn asked his opinion as to a variation between the elevation and the ground plan. He had been a carpenter for 25 years. “ Q. How do you tell whether a piece of timber is good or not when you put it in a building? A. You look at it, and, if you see any knot in it, you condemn it.” That is, by an inspection of the timber, a man is told to take it out. He had that experience “that he could have taken those plans, and gone and done that work just the same as Horn did.” He had worked on frame buildings of almost all descriptions. Mr. Horn was one of the •carpenters, as well as director or foreman of the work. Common knowledge, as well'as the probabilities of conducting such work, in connection with the testimony given, showed that it was not negligence to send the imperfect beam to the building for use on the work. The burden of proof was upon' the plaintiff. It appeared that it was an ordinary thing for carpenters to reject imperfect material. This tiebeam was handled by Horn, as well as by one Schwaclc. Neither saw the defect, but it appeared that, by using ordinary care, they might have seen it. IE this was negligence in using the beam, it was the negligence of a fellow servant, for which the defendant is not responsible. Against this, it is claimed that the negligence was that of Horn only, and that he was in the place of his employers, the defendants. Without examining the legal position, if the fact was that he was only foreman, it must be said that he was also carpenter, as the case fully shows. In doing what he did in respect of the tiebeams he was as much a fellow servant of the plaintiff as if the doing of it had fallen on Schwack or Wood. I am therefore of the opinion that the judgment and order denying a motion for a new trial should be affirmed. Judgment affirmed, with costs. All concur.


author: Dugro, J.

text:
    Hartwig Herzog et al., Resp’ts, v. Nathan H. Heyman, App’lt.

      (New York Superior Court, General Term,

      Filed April 2. 1894.)

    1. Patents—Invalidity.
    The invalidity of a patent is available as a defense in a action for the purchase price on the ground of failure of consideration, but not in an action by a licensee to recover royalties.
    2. Same.
    An agreement to pay royalties as part of the purchase-price does not make the purchaser a licensee.
    Appeal from a judgment in favor of the plaintiff.

      Henry D. Williams, for app’lt; Abraham L. Jacobs, for resp’ts.
   Dugro, J.

The learned judge was right in holding that the plaintiffs were not concluded by the result in the Pennsylvania suit. They were not parties, and do not appear to have had notice of it. The complaint states a cause of action for royalties due upon a contract of sale. The answer sets forth, among other defens^ that of the invalidity of the patent sold, and a consequent failure of consideration. In such a case, an inquiry as to the validity of the patent can be made in a state court, as it is merely incidental to the main question, which is, valid contract or void contract? It seems to be the settled law of this state that the invalidity of a patent is available as a defense in an action for the purchase-price on the ground of a failure of consideration, but not in an action by a licensee to recover royalties. See Marston v. Swett, 66 N. Y. 212; Rob. Pat. §§ 1230, 1239. This action is brought by a purchaser for -the purchase price. The agreement to pay royalties did not make the assignee a licensee, as the royalties to be paid were part of the purchase price. Littlefield v. Perry, 21 Wall. 205. The validity of -the contract could therefore be brought in question. As the defendant set forth that the patent was wholly incapable of use, and worthless, it was unnecessary to allege a return of, or an offer to return, the patent. The contract contains no express warranty, and none can be implied (Rob. Pat. 1232; Walk. Pat. 283); hence, if there is a failure of consideration, so far as the patent is concerned, there can be no counterclaim. It follows that the matter set forth in the seventh paragraph of the answer is sufficient in law as a defense, but not as a counterclaim. The judgment, modified accordingly, will be affirmed, with costs to neither party in either court. There can be no breach of a void contract, and so no damage from a breach.

All concur.


author: Sedgwick, J.

text:
    Charles S. Hine, Resp’t, v. New York Elevated Railroad Company et al., App’lts.

      (New York Superior Court, General Term,

      Filed April 2, 1894.)

    Railroads—Elevated—Abutting owners.
    A lessor of abutting premises for a term of years with an agreement to convey the fee, in which he reserves title until conveyance, may sue for injury thereto, caused by the construction and operation of the elevated road.
    Appeal from a- judgment in favor of the plaintiff.

      Bramará Tolies, for app’lts; William II. Arnoux, for resp’t.
   Sedgwick, J.

This action is for an injunction against defendants’ maintaining and operating their railroad in front of the plaintiff’s premises, and also for damages to the rental value of the premises. The appellants’ counsel takes the position that the court erred in awarding an injunction, in view of the fact that, before the commencement of this action, the plaintiff divested himself of all substantial interest in the premises and the right of action, and became incapacitated from sustaining any consequential injury. The divesting referred to was the making of a written instrument by the plaintiff and others named Stemme. It had a double aspect. By it the plaintiff leased the premises to the Stemmes for a term of years, and also agreed to convey tq the Stemmes the fee, six months before the expiration of the term of the lease. This took place before the beginning of this action. Until the Stemmes became entitled to a conveyance, they had no right as owners, and, of course, no. right to damages for the diminution of the rental. Bostwich v. Beach,, 103 N. Y., 423 ; 3. St. Rep., 659. There was no merger, as of the time of making the contract,- of the.leasehold and the fee, for the reason, if no other, that the contract made provision that the title before the time of conveyance should remain in plaintiff. The plaintiff, therefore, had an interest in the damages which would sustain the action. This interest continued at least until the conveyance was made, in May, 1890, after this action was begun. Assuming that plaintiff was not entitled to damages after he ceased to be owner, and could only validly recover such loss to him as actually occurred, the question was not mooted on the trial by.any request made of the learned judge. The requests on this general subject were confined to loss before the conveyance, and did not refer to subsequent loss. On this point the stipulation between the parties prevails. It was in part, that the defendants shall not serve any supplemental answer, or prove, or offer to prove, on any future trial of this action, any transfer of interest of the plaintiff herein to the premises described in the complaint. This keeps from the case any question as to damages after the conveyance, for the defendants could not take the ground that there bad been a conveyance or transfer. The defendants also argue that the conveyance by the plaintiff to the Stemmes left him without any right to an injunction to protect property that he would not own, and- that he ceased to be a tenant on that account; The witness was asked if he told the plaintiff that he would not remain on account of the light. The answer was, “Yes,” after objection by the defendants. This was not hearsay, for it came from the witness himself, as a witness subject to cross-examination. The fact that the witness gave the information to the plaintiff was competent evidence. The plaintiff was endeavoring to recover for the lessening of rents. He was entitled to show the prudence he used in fixing the amounts of rent. The mind of a landlord would be affected by such information as was communicated to him according to z'the question and answer objected to. A witness 'for the defendants, who was of the class called" “ experts,” testified as to the value of the plaintiff’s property, and of other pieces of property in the neighborhood. On direct examination he testified^ that the opinions he had given of value were predicated upon" the transfer of property in the neighborhood. He was asked if he had not given as a witness an,estimate of the value of property 75 feet from the plaintiff’s property, and when judgment awarded a larger sum. This question was allowed against the objection and exception of defendants. That judgment was of the kind of transactions from which the witness made his mind up as to values. There is no doubt that values would be affected by such incidents. The question bore on-his quality and sufficiency as an expert, and was to be considered in due manner by the judge. The court of appeals has said that in actions where the attempt is to ascertain the fee value of the property taken, for the purpose of shaping a condition of the injunction becoming inoperative, the proceeding is, in its nature, like to the proceedings for condemnation. In the latter case the commissioners are not bound by the absolute rules of law as to the admissibility or exclusion of evidence, and the whole case is looked at, to see if manifest injustice has been done. These rules should be applied to the proceeding of this kind in an action. In re New York El. R. Co., 29 St. Rep. 190; 8 N. Y. Supp. 707. It does not appear that the testimony does not sustain the findings as to damages, and the value of the fee.

Judgment affirmed, with costs.

All concur.


text:
    Henry M. Tabor, Resp’t, v. New York Elevated Railroad Company et al., App’lts.

      (New York Superior Court, General Term,

      Filed April 2, 1894.)

    1. Evidence—Elevated Railboads.
    A general statement of the condition and value of property in the neighborhood of that in question, can be proved.
    When, in an action against an elevated road for injury to abutting premises, it appears that rents had decreased from a time before its construction till the commencement of the action, there is no conclusive presumption that the decrease was continuous.
    3. Same.
    Appeal from a judgment in favor of the plaintiff.

      William H. -.Godden, for app’lts; John E. Parsons, for resp’t.
   Per Curiam.

This action is for an injunction against the defendants maintaining and operating their elevated road in front of the plaintiffs’ premises, and for damages. It cannot be said, when it is Considered that different results would follow from different views of the testimony given below, and that the credibility of witnesses had to be passed upon, that the judgment is not supported by evidence. There was enough evidence, if certain witnesses were to be relied upon, and there is no reason to overrule the action' of the judge in that respect.

One matter may be noticed specifically: It is argued by the learned counsel for the appellants that there was á fall in rents from 1862 that was generally continuous to the year 1893, and that the greatest rate in the fall was before the building or working of the road. It is therefore, as is claimed, the correct deduction that the fall before' the road, and that after the road proceeded from one cause, which cause could not be the railroad, as it did not exist until after 1879. It does not seem that this position should be sustained. The coming of the road carried with it disadvantages to the property, which were to be taken with the benefits conferred. It was competent to find that the fall after the coming of the road was to be attributed to this, if the conclusion did not give the benefit of higher rents than those that actually were paid before the road came. Now, was it a matter of law, or a conclusive presumption of fact, or an inevitable inference from the testimony, that the cause of the fall of rents was continuous ? A resort to the testimony might show that it was not continuous.' The testimony on this subject referred to many facts, inferences, and conditions. The judgment of the learned judge below on this subject must be upheld.

An exception was taken to the following question : How long succeeding 1873 did real-estate values in this neighborhood continue to decline? And to the question, so far as concerns property lying east of Pearl street, and in this general locality, what has been the course of values since 1886 ? Such questions seem to be approved' in Roberts v. N. Y. El. Railroad Co., 128 N. Y. 455 ; 40 St. Rep. 454. It says: “ A general statement of the condition and value of property in the neighborhood of that in question could be proved.”

Judgment affirmed, with costs.

All concur.


author: Sedgwick, G. J.

text:
    Emory M. Van Tassel, Resp’t, v. Henry Barton Beecher, App’lt.

      (New York Superior Court, General Term,

      Filed April 2, 1894.)

    1. Pleadings—More definite and certain.
    A motion to make a complaint more definite and certain will be denied, where, by stipulation in open court, the cause for the motion is removed.
    2. Same—Office of such motion. ’

    It is not the office of such motion to determine whether a pleading is demurrable.

      Appeal from an order denying a motion to make the complaint more definite and certain.

      George Richards, for app’lt; C. N. Bovee, for resp’t.
   Sedgwick, G. J.

The defendant moved that the complaint be made more definite and certain. The order made, and now appealed from, is as follows:

11 Plaintiff, by his said counsel, having stipulated in open court that plaintiff relies upon the employment of defendants as insurance brokers, and the acceptance of said employment by said, defendants, and the undertaking of said defendants as insurance brokers, to obtain insurance covering the plaintiff’s property, described in the complaint, and not upon .an absolute agreement upon the part of the defendants to renew the insurance, or to obtain insurance, it is hereby ordered that said motion be denied.

The defendant was not aggrieved by this order, and is not entitled to succeed here. It is admitted that the only contract set forth in the complaint is an absolute agreement by the defendant to procure insurance. The defendant is relieved from prosecution upon it by the plaintiff by the stipulation of the order that the plaintiff does not rely upon an absolute agreement upon the part of the defendant. This destroys the efficacy of the part of the complaint referred to, and the defendant need pay no further attention to it.

It is further argued that, if the allegations of that contract in the complaint be stricken out, not enough is left to constitute any cause of action at all; that without the addition of the unverified stipulation contained in the order, which the defendant cannot take cognizance of, the complaint is hopelessly insufficient and obscure, and in fact demurrable. It is not the office of a motion of this kind to determine whether a pleading is demurrable. But a party cannot be aggrieved by a pleading being left in a state as to which he will have a full remedy. In reality the uncertainty complained of was the doubt as to whether plaintiff intended to proceed upon one possible cause of action or another. The order made settled that doubt. The order can never be a part of the .pleadings, but can be referred to, even upon the trial of an issue of law, to determine what the issue is.

Order affirmed, with $10 costs.

All concur.


text:
    Mary Walsh et al., as Administrators, etc., App’lts, v. Manhattan Railway Company, Resp’t.

      (New York Superior Court, General Term,

      Filed April 2, 1894.)

    Negligence—Question of fact.
    Where, in an action against a railroad for negligence, the evidence is conflicting as to whether the engineer, when he first saw the intestate on the track, could have stopped the engine in time to prevent the injury, the case should be submitted to the jury.
    Appeal from a judgment dismissing the complaint.

      Samuel 0. Eerrirnan, for app’lts; Davis, Short & Townsend, for resp’t.
   Dugro, J.

J.— The plaintiffs’ intestate fell or jumped upop the track of the elevated railroad from the station at Eighteenth street and Third avenue, and was crushed to death by an incoming train. This appeal is from the judgment dismissing the complaint, entered after the defendant had rested. The question presented is, substantially, whether the evidence warranted a submission of the case to the jury. As there was evidence that the engineer saw the decease fall or jump, whichever he did, the location of the train at the time of this incident was of vital importance. ' Upon this point the evidence was conflicting. The engineer testified that when he got to the end of the station, about twenty-five feet from the deceased, the latter junped off the platform. Doyle testified that, when the deceased got up from the track, he (the witness) looked south to see where the engine was, and noticed it between Sixteenth and Seventeenth streets. If the jury believed, as they might have, that at the time the engineer saw the deceased leave the platform the train was between Sixteenth and Seventeenth streets, and the engineer’s evidence that he did not put the brakes on until he reached the end of the station, and that they were then on for his regular stop, it might well be that they would have found the accident to have occurred through negligence on the part of the engineer in not using ordinary diligence to stop the train after he saw the deceased upon the track. It may be needless to say that, if the,accident happened through the engineer’s neglect to use ordinary care after he saw the man upon the track, there would be no question of contributory negligence, except such as might arise upon the point as to whether the deceased used ordinary care in attempting to reach a point of safety, and upon this the evidence would have sustained a finding in plaintiff’s favor. I think the refusal to submit the case to the jury was error, and that the judgment should be reversed, and a new trial ordered, with, costs to abide the event. "

All concur.


author: Abbott, S.

text:
    In the Matter of the Judicial Settlement of the Accounts of Austin D. Ewen, as Sole Surviving Executor of George Ricard, deceased.

      (Surrogate’s Court, Kings County,

      Filed March, 1894.)

    1. Will—Suspension oe alienation.
    If the suspension of absolute ownership will not, under all circumstances, that is, necessarily, terminate within the prescribed period, the disposition is void.
    S. Same—Valid trust.
    Where the ulterior contingent limitation is quite_ separable from, and merely incidental to, the primary trusts, such trust, if valid, may he severed from the void portion.
    Judicial settlement of accounts of executor.

      W. T. Graff, for executor; T. Henry Deiuey, for Edward E. Randolph et al.; William J. Carr and JEdward M. Bassett, for special guardians.
   Abbott, S.

George Ricard died on the 7th day of January, 1881. He left a last will and testament which was admitted to probate on the 9th day of February, 1881.

By his last will and testament he made provision for various nephews and nieces, of which he left a large number surviving him. Among the provisions of his will were the following :

Fourth. I give and bequeath unto Mary Catherine Johnson, Edward F. Randolph and Mary Agnes Van Name, the annual income or profit of and upon the sum of three thousand dollars each. On the death of either leaving a child or children, then the sum of three thousand dollars shall go to such child or children. On the death of either leaving no child or children, then income or profit shall go to the survivor or survivors, and the principal shall be reserved to the child or children that may survive all three. If all three die leaving no child or children then the principal shall be converted-back into and remain with my estate.

Twelfth. I give and bequeath unto my four nieces and two nephews, to wit, Maria Theresa Berrian, Mary Agnes Allen, Abby Louisa Ewen, Elizabeth Matilda Lamoreaux, George Ricard Connor, and John Ricard Connor, the net income of all mv estate, both real and personal, excepting, however, and subject to such as is herein otherwise given and bequeathed, to be divided equally between them, share and share alike, for and during their natural lives. My executors hereinafter named shall take charge and control of my said estate, collect and receive the rents, income and profits thereof, pay all taxes, assessments and expenses, and divide the net proceeds, the one equal sixth part thereof to and for each of my fore-mentioned nieces and nephews, to wit, Maria Theresa Berrian, Mary Agnes Allen, Abby Louise Ewen, Elizabeth Matilda Lamoreaux, George Ricard Connor, and. John Ricard Connor, share and share alike, the same tobe paid annually, or as much of tener as my said executors may deem proper.

Thirteenth. In case of the death of either of my said four nieces, then I.give, devise and bequeath the one equal sixth part of all my said estate, real and personal, to the children of such niece who may survive her, and to the heirs of such of her children as may haye died before her.

“Fourthteenth. In case of the death of either of my said two nephews leaving a widow, the mother of his child or children, then the one equal sixth part of such net income theretofore paid to such widow for and during her natural life, provided, however, that in the event of her remarrying, thence and from thenceforth such life estate and income shall cease.

"Ffthteenth. On the death of either of my said two nephews leaving no widow the mother of his child or children (or leaving such widow, then on her death or remarrying), then I give,.devise and bequeath the one equal sixth part of all my said estate real and personal, to the children of such nephew who may survive him, and to the heirs of such of his children as may have died before him.

“Sixteenth. For the purpose of carrying out the provisions of this will and making an equal division as aforesaid, my executors are hereby authorized and empower to sell my said real estate or any part thereof, and also my personal estate or any part thereof whenever in their opinion the same maybe necessary and proper.’"

The above-quoted clauses are only ones which require construction in this proceeding.

The clauses of the will numbered twelfth, thirteenth, fourteenth, fifteenth and sixteenth, constitute substantially a single clause, and are to be constru'ed together. Taken by. themselves, they present no difficulty in their interpretation.

The effect of" the dispositions contained in these clauses is r (1) To exclude all property previously attempted to be disposed of. (2) To divide the property into six equal, parts. (3) To pay the income of one such equal share to each of the nephews and nieces named for life. As to the shares of the nephews, to pay the income to their respective surviving widows, if any, mothers of their children. (4) To pay the capital of the respective shares to the children and descendants of the nephews and nieces respectively per stirpes. (5) If no children survive the nephew or niece or widow of a nephew, then as to the capital of such one-sixth share-set apart for the benefit of such nephew or niece, no disposition has been made by the testator, and the same passes to the next of kin and heirs at law of the testator.

The “ fourth ” clause of testator's will above quoted bears no particular relation to the other portions of the will, and may be interpreted as though the property disposed of by it constituted the entire estate of the testator.

It is true that as to each sum of $3,000 upon a certain contingency contained in this clause,, namely the death oí Mary, Edward or Elizabeth, leaving no child or children the disposition has the effect to suspend the absolute ownship of at least one of the funds beyond two lives in being. r ,

The rule of construction of such testamentary dispositions as that above quoted was apparently well settled in this state by the case of Knox v. Jones, 47 N. Y. 389, and cases cited at page 397.

The testator in that case Alfred G. Jones, bequeathed his residuary estate in trust to collect the whole income and pay the same: (1) To testator’s brother, Wm. B. Jones, during his life. (2) On the death of said brother said income shall be divided, equally among testator’s sisters, Catharine and Georgiana. (3) On the death of either Catharine or Georgiana to the survivors of them for life. (4) On the death of both, the entire principal was bequeathed to the children of Georgiana. (5) If no child of Georgiana survived Catharine and Georgiana the entire principal was bequeathed to Columbia College. Held, that the bequest was void. Judge Allen says at page 397: “ It is true that if is possible that, by the death of one or both of the sisters during the life of the brother, .the absolute ownship may not actually be suspended beyond the time allowed by the law, but this possibility will not sustain the will. If the suspension of absolute ownership was not under any circumstances, that is, necessarily, terminate within the prescribed period, the disposition is void.”

In this case it was clearly the intention of the testator that the title to the -whole fund should vest in the trustee, and that under no circumstances should the absolute ownership of any part of the •fund vest in any person until after the termination of the three lives of Wm. B., Catharine and Georgiana.

The general rule above stated has always been and is now recognized as the proper rule of interpretation, with a slight qualification under the latter decisions.

In Purdy v. Hayt, 92 N. Y. 449, the subject-matter involved was real property, and much of the authority of that case has no bearing whatever upon the subject now under consideration.

It did, however, contain a construction of the statute against perpetuities upon facts as to real property not unlike those now involved as to personal property.

“ Delevan died in 1864, leaving a will by which he gave his real estate, consisting of a farm at Fishkill to his sisters Jane and Catherine 1 during their respective lives,’ and after their death he directed it to be sold by his executors, the proceeds to be invested and the income tobe paid by them to his niece, Elizabeth Briukerhoff, daughter of his sister Betsey, ‘ during her life and at her death the principal to be divided equally between any children she may leave, or if but one such child, the whole to be paid to that one.’ But should said ‘niece, Elizabeth die not leaving lawful issue,’ then the principal was given to other parties named in the will.

“ The two sisters of the testator, Jane and Catherine, survived him. His sister Jane died in 1865 and sister Catherine in 1867. His niece, Elizabeth Brinkerhoff, also survived him” and-his two sisters.

Judge Andrews says at page 457: “The rule is well settled that where by the terms of the instrument creating an estate there may be an unlawful suspension of the power of alienation the limitation is void, although it turns Out by a subsequent event, as by the falling in of a life, no actual suspension beyond the prescirbed period would take place. Hawley v. James, 16 Wend. 121. But this rule relates to cases where, if the limitations take effect in their order, as' contemplated by the grantor or devisor some of the estates limited will not vest within the prescribed period, and they are cut off as too remote, although it may happen that the estates so cut off would, by events subsequentlyhappening, take effect within two lives.”

In the Purdy case testator’s sisters, Jane and Catherine, took a life estate in the property as tenants in common, each being seized of the one equal one half. Therefore, it was certain that as to one half interest in that property there could not be a suspension beyond two lives that is, the life of the survivor of Jane and Catherine and the life of Elizabeth, although it could not be determined at testator’s death which sister’s life, that of Jane or Ca'therine, it should be.

I have entered thus fully into the discussion of these two authorities because they contain the rule under which the provision of the “ fourth ” clause of the will of George Bicard must be interpreted.

Under this clause three separate funds of $3,000 each are established-for the benefit of testator’s nephew and. two nieces, Edward, Mary and Elizabeth, respectively. In case either dies, leaving a " child or children, the capital of his or her fund goes to such child or children. I am clear that whatever conclusion may be reached as to the contingency of the death of either Edward, Mary or Elizabeth without a child or children, in the event of the decease of either leaving a child or children the trust is valid and is separable from the father contingeuy which creates the doubt in which the eonstruction of this clause is involved. Knox v. Jones, 47 N. Y. 389-398 ; Tiers v. Tiers, 98 id. 568-573.

In the latter case Judge Rapallo says at page 573 : “But whatever construction be adopted in this respect, it is evident that the ulterior contingent limitation is quite separable from the primary trust, and merely incidental, its only purpose being to provide tor a contingency which may,never arise, and the failure of that provision would not affect the general scheme of the testatrix.”' So in our case it was the primary intention of the testator to provide in the “ fourth ” clause of the will for Mary Catherine Johnson, Edward F. Randolph' and Elizabeth Boose during their lives, and upon their deaths, respectively, that the capital of the fund should goto their children. This "part of the provision is, easily and properly separable from the contingency^provided for in the event of their decease without leaving a child or children, and so far, at least, stands under the above authority. See, also, Underwood v. Curtis, 127 N. Y. 523, 541; 40 St. Rep. 255.

Now, as to the gift over upon the contingency of the death of either Mary, Edward or Elizabeth leaving no child or children. This has actually occurred in the case of Mary.

Upon testator’s death, as in the Purdy case, 92 N. Y. 446, it was certain as to two of the funds of $3,000 each that under any circumstances there could not be any suspension of absolute ownership beyond two lives, although it could not be determined at that time which two of the three funds it should be.

This uncertainty has now been removed by the death of Mary. As to her share the disposition over upon the contingency of her death leaving no child or children, which has happened, is void, because the absolute ownership of the fund was sought to be suspended by this testator for three lives in being at the time of bis decease; the lives of Mary, Edward and Elizabeth.

As to the shares of Edward and Elizabeth, speaking from the date of testator’s death, the absolute ownership of either fund cannot be. suspended for more than the two lives of Edward and Elizabeth.

I have reached this conclusion solely upon the authority of the Purdy case, 92 N. Y. 446. I have been unable to perceive any difference in principle upon the facts here involved and those upon which the construction was made in that case, although I should have been equally unable to so distinguish earlier decisions upon the same subject as'to justify the conclusions" which I have reached. „

Having reached the conclusion that the bequest In favor of Mary is void after her decease, it remains to be determined what shall become of the fund bequeathed for her benefit.

I am of the opinion that it is undisposed of by the will and must be distributed to the next of kin of the testator.

It seems clear that the testator did not intend to include either of these sums in the dispositions of the twelfth, thirteenth, fourteenth, fifteenth and sixteenth clauses of his will under any circumstances. The effect of so doing must necessarily be to still further suspend the absolute ownership of the fund, and to certainly render void another and portions of the third legacy contained in the “ fourth ” clause. Such an intention will not be presumed.

Let decree enter accordingly.


author: Follett, J.

text:
    Minnie L. Ackerman, Resp’t, v. Third Avenue Railroad Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 16, 1894.)

    Trial—Exceptions.
    After the jury have returned with their verdict, it is too late to lay the foundation for exceptions to matters which have previously occurred in open court,
    Appeal from a judgment entered upon a verdict in favor of the plaintiff, and from an order denying a motion for a new trial made on the minutes.

      A. W. Otis, for app’lt; Fred. P. Delafield, for resp’t.
   Follett, J.

This action was brought to recover damages for a personal injury caused, as alleged and found, by the negligence of the defendant’s employes. On June 28, 1891, the plaintiff was a-passenger, on one of the defendant’s open cars, which left the track at a curve, and collided with a post on the elevated railroad. The car struck the post with such force that one of the passengers was thrown forward to the street, and the plaintiff was thrown forward onto a seat in front of her, and to the car floor, causing in j uries from which she has not recovered.

The defendant asks for a reversal of the judgment on the following grounds : (1) Because the court refused to nonsuit the plaintiff; (2) because the court refused to charge from additional requests preferred by the defendant; (3) because the court refused the defendant’s request that the official' stenographer be directed to enter in his minutes statements which the defendant’s counsel asserted that the plaintiff’s counsel made in summing up to the jury; (4) because the court denied the motion for a new trial on the minutes. Ho exceptions were taken to the rulings admitting or excluding evidence, and no exceptions were taken to the charge as delivered. Before the court charged the jury, the defendant preferred 26 requests, all of which were charged except the eleventh, twelfth, sixteenth, and twenty-fifth, which were withdrawn. The defendant also preferred, before the charge was delivered, four additional requests. It is not asserted that any one of these were justified by the evidence, but it is alleged that they were by the remark of the plaintiff’s counsel in his address to the jury. Mo objections were taken to the remarks when made, nor was the attention of the court called to them until after the jury returned to the bar of the court, and announced that they had agreed on a verdict, whereupon the defendant made this request;

“ Before the verdict is taken, I make application that the stenographer may note that in the summing up the plaintiff’s counsel referred to the affliction of the parents, and their suffering, by reason of this injury; the point of my application being that some of mydast requests to charge were made in view of that, and I think I am entitled to that on record. . (Requests declined, and defendant excepts.’’)

At this stage of the trial, the court was under no obligation to-grant the request. Jf the defendant desired to object to the remarks of the plaintiff’s counsel, he should have done so when made, or at least not later than at the conclusion of his address. The court may, in its discretion, refuse to entertain exceptions taken after the jury has returned to the bar of the court with its verdict, Code Civ. Proc. § 995; and it is then too late to lay the foundation for exceptions to matters which have previously occurred in open court. The exceptions taken to the refusal of the court to charge the four additional requests was not error.

Without stating the evidence, we think it was sufficient to justify the finding of the jury that the negligence of the defendant’s servants caused the accident, and that the plaintiff in no way contributed thereto. Mor can we say that the damage was excessive. The court did not err in refusing a nonsuit,1 or in refusing to grant a new trial on the ground that (he damages were excessive.

The judgment and order should be affirmed, with costs.

All concur.