author: Bischoff, J.

text:
    Samuel H. Willard, Resp’t, v. Holmes, Booth & Haydens, App’lt.

      (New York Common Pleas, General Term,

      Filed February 6, 1893.)

    1. Malicious prosecution — Corporations.
    A private corporation is liable civiliter for malicious prosecution, and the malice of its officers, employes or agents, accompanying acts within the discharge of their duties, is imputable to the corporation, unless such acts were intended as a mere cover for the accomplishment of an independent and wrongful purpose.
    2. Same —Probable cause.
    If the prosecutor knew, or ought to have known, or could, with reasonable diligence and caution, have ascertained facts exculpating and exonerating the person accused or suspected, he cannot claim probable cause for the prosecution.
    8. Same.
    Plaintiff was treasurer and manager of the defendant, and as such was accustomed, with the knowledge of its directors, to extend financial assistance to persons or corporations doing business with it, when required. One of such corporations desiring assistance, plaintiff gave it by indorsing its note in defendant’s name. On his retirement, the new treasurer, learning of said note, had papers prepared, and. notwithstanding plaintiff’s explanations to him and the board of the facts and that he had acted in good faith, said board authorized the treasurer to proceed, and an action was thereupon begun and plaintiff’s property attached, but judgment was rendered in his favor. Held, that such action was without probable cause and malicious, and that defendant was liable.
    4. Same — Advice oe counsel.
    Advice of counsel is only a defense so far as it may tend to prove probable cause and disprove malice, and to have that effect it must appear that it was obtained after a “ full, fair and honest ” statement of all the facts, concerning the guilt of the person accused or suspected that have come to the prosecutor’s knowledge.
    5. Same — Damages.
    Plaintiff’s integrity had previously been unimpeached; he rated high in financial circles, and held some important and fiduciary offices which he lost by reason of said prosecution. Held, that a verdict of $31,700 was not excessive, although his expenses in defense of the "action only amounted to $2,500.
    Appeal from a judgment for plaintiff which was entered upon the verdict of a jury, and from an order denying defendant’s motion for a new trial on the several grounds specified in § 999 of the Code of Civil Procedure.
    Action to recover damages for the malicious institution and prosecution of an action charging plaintiff with having, while-treasurer and manager of the defendant corporation, wrongfully used its name for the indorsement of the promissory note of another corporation, and for causing his property to be attached in that action.

      Marshall P. Stafford, for resp’t; William H. Harris, Edward M. Shepard and John E. Parsons, for app’lt.
   Bischoff, J.

Whatever the doubt in which the question was at one time involved, it is now well settled that a private corporation is liable civiliter for malicious prosecution, Morton v. Met. L. Ins. Co., 34 Hun, 366; aff’d 103 N. Y., 645; Nat. Bank v. Graham, 100 U. S., 699; Denver, etc., R. Co. v. Harris, 122 id., 597; Williams v. Planter, etc. Co., 34 Am., 494; Carter v. Howe Machine Co., id., 311; Wheless v. Second Nat. Bank, 25 id., 783; Reed v. Home Savings Bank, 39 id., 468; Gulf, etc. R. R. Co. v. James, 15 Am. St., 743; Hussey v. Norfolk, etc., R. R. Co., 2 id., 312; Jordan v. Alabama, etc., R. R. Co., 49 Am., 800, and the malice of its officers and employes, or other agents, accompanying the performance of acts within or incidental to the discharge of their duties, is imputable to the corporation, Gulf, etc., R. R. Co. v. James, 15 Am. St., 743; Evansville, etc., R. R. Co. v. McKee,50 Am., 103, unless those acts were intended as' a mere coyer for the accomplishment of some independent and wrongful purpose. Hoffman v. N. Y. C. & H. R. R. R. Co., 87 N.Y.,25; Kolzem v. Broadway & Seventh Ave. R. R. Co., 48 St. Rep., 656; Donivan v. The Manhattan Railway Co., 49 id., 722.

Liability, _ it seems, is predicable of the malicious prosesecution, without probable cause, of an ordinary civil action. Pangburn v. Bull, 1 Wend., 345; Eastin v. Bank of Stockton, 56 Am., 77; Closson v. Staples, 1 id., 316; Whipple v. Fuller, 11 Conn., 582; Lockenour v. Sides, 26 Am., 58; McCardle v. McGinley, 44 id., 343, and unquestionably so, if the prosecution of the action be accompanied by the arrest of the person prosecuted or the seizure and detention of his property. Cooley on Torts, 2d ed., 217 ; Newell on Malicious Prosecution, etc., chap. 1, § 26, p. 35, and cases cited.

To maintain an action for malicious prosecution plaintiff must establish that the prosecution has terminated in his favor; that it was unfounded and without probable cause, and that the prosecutor was actuated by malice. Wheeler v. Nesbitt, 24 How., U. S., 544; Besson v. Southard, 10 N. Y., 236; Heyne v. Blair, 62 id., 19; Thaule v. Krekeler, 81 id., 436; Anderson v. How, 116 id., 336; 26 St. Rep., 787; Foshay v. Ferguson, 2 Denio, 617.

The termination of the alleged malicious prosecution is sufficiently shown if it appears that no further proceeding can be taken therein, Robbins v. Robbins, 133 N. Y., 597; 44 St. Rep., 684; “ probable cause ” is defined to be “ a reasonable ground for suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in his belief that a person accused is guilty of the offense with which he is charged,” Anderson v. How, 116 N. Y., 336; 26 St. Rep., 787; Carl v. Ayers, 53 N. Y., 14; Foshay v. Ferguson, 2 Denio, 617, a concurrence of real belief and reasonable grounds for it, Farnam v. Feeley, 56 N. Y., 451; Shaul v. Brown, 4 Am., 151; and “ malice ” in law comprehends not only, as in the ordinary meaning of the term, a malevolent intention to injure another in his person, property or good repute, but also any wanton or reckless disregard of another’s inviolable enjoyment of his civil rights. Newell on Malicious Prosecution, etc., ch. 14, § 34, p. 524; Kolzem v. Broadway & Seventh Avenue R. R. Co., 48 St. Rep., 656; Voltz v. Blackmar, 64 N. Y., 440.

Applying the consideration of probable cause ” as above defined, it stands to reason that if the prosecutor knew, or ought to have known, or could, with reasonable diligence and caution, have ascertained facts exqulpating and exonerating the person accused or suspected, he cannot successfully urge that there was “ probable cause ” for prosecution. Fagnan v. Knox, 66 N. Y., 525; Wass v. Stephens, 128 N. Y., 123; 38 St. Rep., 882. Whether there was, or was not, “probable cause," is, if the evidence is not conflicting, or conflicting inferences cannot be reasonably drawn therefrom, a question of law to be determined by the court; otherwise it is for the jury, Bulkeley v. Keteltas, 6 N. Y., 384; Besson v. Southard, 10 id., 236; Burns v. Erben, 40 id., 468; Heyne v. Blair, 62 id., 19; Thaulev. Krekeler, Slid., 428; Anderson v. How, 116 id., 336 ; 26 St. Rep., 787 ; Hazzard v. Flury, 120 id., 223; 30 St. Rep., 906; and while “ malice " is not predicable wholly of the want of “ probable cause,” it may nevertheless be inferable from the same facts which establish the latter. Wheeler v. Nesbitt, 24 How., U. S., 544; Thompson v. Lumley, 50 How., 105; Lawson’s Rights, Remedies and Practice, vol. 3, p. 1890, § 1098.

How, what are the facts in the case at bar? Defendant is a corporation chartered “for the purpose of manufacturing and dealing in all kinds of brass, copper and German-silver goods, plated ware and metals composed wholly or in part of copper, brass or German-silver, and all articles composed in whole or in part of metal which it shall deem expedient, and to do such other things as are incident to the prosecution of said business, and to exercise such mercantile powers as may be convenient and necessary for the successful prosecution of said business.” One of the articles of defendant’s manufacture was a metal lamp in connection with the use of which carbon was required, and for the supply of carbon it had contracted with the Forest City Carbon Manufacturing Company. Plaintiff had been, for many years, defendant’s treasurer and manager, was authorized to use its name for the indorsement *of commercial paper, and to him had been entrusted the general conduct of its business affairs. It had been defendant’s constant practice, to the knowledge of its board of directors and stockholders, through its treasurer and manager, and at his discretion, to extend financial assistance to such persons or corporations as had established business affiliations with it, when required. In July, 1886, the Forest City Carbon Manufacturing Company, which for more than a year had supplied defendant with carbon, desiring to extend its works and to comply with defendant’s request for increased supplies, requested defendant, through its treasurer manager, plaintiff, for a loan of $10,000, which the latter granted by indorsing the Carbon Company’s note with defendant’s name, causing it thus to be discounted, and remitted the proceeds to the maker. In the latter part of the year 1886, and while the Carbon Company’s note, indorsed as mentioned, was still outstanding and unpaid, plaintiff resigned as defendant’s treasurer and manager. Chandler H. Wayland, who had been previously elected president, was, thereupon, also elected treasurer and appointed manager in plaintiff’s stead, and assumed the management and control of defendant’s business.

The newly elected president, treasurer and manager, ascertained the fact of defendant’s outstanding liability as indorser of the Carbon Company’s note, at once applied to, counsel and instructed him to commence suit against plaintiff to recover damages for the alleged unauthorized use of defendant’s name. Acting upon these instructions counsel prepared the required summons and complaint for an action in the supreme court, as-well as the papers necessary to obtain an attachment against plaintiff’s property, he being a non-resident of the state, but at Wayland's request withheld service thereof to await his further direction in the premises. Thereafter Way land had an inteiview with plaintiff, at which the latter fully explained to the former in detail all the circumstances attending his indorsement of the Carbon Company’s note. This explanation was repeated by plaintiff, in Wayland’s presence, at a subsequent meeting of defendant’s board of directors, which he attended at. Wayland’s request, and at which there was also present a director, George W. McGill, himself a stockholder of the Carbon Company, and who had advised the making of and prepared the contract under which the Carbon Company was supplying defendant with carbon. McGill on the trial of this action confessed that at the time of this meeting he was cognizant of the purposes for which plaintiff had indorsed the Carbon Company’s note, and of the fact that plaintiff bad indorsed it in the utmost good faith and without wrongful motive or intent, but that he refrained from protesting against plaintiff’s prosecution lest his motives for so doing might be impugned. Heedless of plaintiff’s explanation, regardless of the fact that he had indorsed the Carbon Company’s note in the furtherance of defendant’s business pursuant to authority given him, and seemingly solicitous only that he should secure defendant against its contingent liability by a conveyance of bis property, which he, protesting his innocence, declined to do, defendant’s board of directors authorized Wa.yland to proceed with plaintiff’s contemplated prosecution and Wayland thereupon, and without further submission to counsel of the facts transpiring at the directors’ meeting, advised counsel by telegraph to proceed with the supreme court action and to attach plaintiff’s property upon the complaint and papers previously prepared, which was accordingly done.

Plaintiff defended, and the trial resulted in a judgment in his favor establishing his claim of authority to indorse the Carbon Company’s note and the truth of his assertions at the directors’ meeting. This judgment was affirmed at general term, Holmes, Booth & Haydens v. Willard, 24 St. Rep., 260, and by the court of appeals. 125 N. Y., 75; 34 St. Rep., 455. True, the supreme court and the court of appeals differed concerning the legal deductions authorized by the facts, the former maintaining that the loan of money to its customers was not ultra vires on the part of defendant, and the latter tribunal determining that it was so in the instance of the loan to the Carbon Company because it did not appear that the sale of carbon was within defendant’s corporate authority. The facts established on the trial, however, remained undisturbed, and the result reached by each of the appellate tribunals was the same; that plaintiff had authority to indorse the ■Carbon Company’s note from defendant’s directors expressly, and from its stockholders by acquiescence and acceptance of the ben■efits accruing from the sale of carbon which precluded them from ass -rting the want of authority, and that plaintiff was not answerable to defendant.

The facts determined in the supreme court action, and proved on the trial of this action, thus conclusively established that plaintiff was prosecuted not only without cause, but also without •“ probable cause,” since it would imply stultification by defendant to urge that it did not know what authority it had given plaintiff. Defendant’s president, treasurer, manager, and board of directors had by plaintiff been fully informed, prior to the institution of the action against him, why and for what purposes he bad indorsed the Carbon Company’s note, and defendant became thereupon chargeable with knowledge of the fact of plaintiff’s authority in the premises. Wass v. Stephens, 128 N. Y., 123; 38 St. Rep., 582.

Was the prosecution malicious? The affirmative solution of this query must inevitably follow if we are correct in the proposition that defendant was chargeable with knowledge of plaintiff’s authority to indorse the Carbon Company’s note. It is incomprehensible how defendant, after having authorized plaintiff to indorse the note, could yet successfully contend that its known and persistent prosecution of the plaintiff for a series of years upon an accusation of having wrongfully incurred liability as indorser on its behalf was aught but a wanton and reckless disregard of his right to the enjoyment of property and good repute, and in that sense, at least, “ malicious.”

Defendant sought to shield itself in this action, by the “ advice ■of counsel.” “ Advice of counsel ” is, however, only a defense in so far as it may tend to prove “ probable cause ” and disprove •“ malice,” Gulf etc., Railway Co. v. James, 15 Am. St., 743; and to have this effect it should appear that the “ advice of counsel ” was obtained after a “ full, fair and honest ” statement of all the facts concerning the guilt of the person suspected or accused which have come to the prosecutor’s knowledge. Newell on Malicious Prosecution, etc., ch. 8, § 2, p. 310 and cases cited in the text and notes; Ames v. Ratbaun, 37 How., 280. This does not appear to have been done in the case now under consideration, for though we assume Wayland's belief of plaintiff’s guilt to be attributable only to the want of sufficient information of the facts when he first sought counsel and directed the preparation of papers for the purposes of the supreme court action and the attachment of plaintiff’s property therein, the facts transpiring at the subsequent interview between plaintiff and Wayland, and at the directors’ meeting, were notso submitted, and non constatbutthat if they had been counsel’s advice would have been in accord with the subsequent decisions of the supreme court and court of appeals. But had Way land and other officers of the defendant, who were instrumental in the prosecution of the supreme court action, testified to the advice of counsel ’’ on such subsequently ascertained facts, their credibility as intesested witnesses, chargeable with the consequences of that prosecution, would have been a matter for the jury’s determination. Canajoharie Natl. Bank v. Diefendorf, 123 N. Y., 191, 33 St. Rep , 389.

We have refrained from specially noticing the denial of defendants motion for dismissal of the complaint when plaintiff rested because any defect in the proof at that time existing was cured by evidence subsequently adduced by the parties, The S. & S. Plank Road, Co. v. Thatcher, 11 N. Y., 102, 112; Tiffany v. St. John, 65 id., 315, 317; Painton v. Northern Cent. R. Co., 83 id., 7, and upon the whole case our conclusion is that the trial judge properly refused to dismiss the complaint and to direct a verdict for defendant

The verdict awarded plaintiff $31,700 for damages which had insulted to him from the malicious prosecution complained of in this action, and though but $2,500, thp expenses incurred for counsel fees in his defense, was shown to have been plaintiff’s actual pecuniary loss, we cannot upon mature consideration reach the conclusion that interference on our part with the verdict, only because it is of a large amount, would be justifiable. The evidence shows, and this fact was conceded by some of defendant’s witnesses, that up to the time of defendant’s unwarranted accusation plaintiff’s integrity was unimpeached. It also appeared that he rated high in financial and mercantile circles, and had been solicited to assume the presidency of a banking institution, besides holding eqally important and fiduciary positions in several manufacturing corporations. The loss of these offices was directly attributable to defendant’s prosecution of what has proved to be an unwarranted impugnment of plaintiff’s integrity. In arriving at the amount awarded the jury justly considered the loss of the offices mentioned, the actual expense incurred by plaintiff in his vindication, any general impairment of his integrity in social and mercantile aspect, and the shame and humiliation endured as a direct result of the publicity of his arraignment upon a charge injuriously affecting his trustworthiness, which, emanating as it did from a corporation of defendant’s importance, carried with it almost the imprint of truth. We know not how the extent of plaintiff’s loss may be even approximately ascertained and stated in a pecuniary sense, and since the record does no't show that the jury were actuated other than from conscientious motives and a proper discharge of duty, or that their deliberation was warped by undue sympathy for the plaintiff, passion or prejudice against the defendant, we are forced to regard their estimate as conclusive. “I should be sorry,” said Lord Mansfield in Gilbert v. Burtenshaw, Cowp., 230, “to say that in cases of personal torts no new trial should ever be granted for damages which manifestly show the jury to have been actuated by passion, partiality or prejudice. But it is not to be done without very strong grounds, indeed, and such as carry internal evidence of intemperance in the minds of the jury.

“ It is by no means to be done where the court may feel that,. if they had been on the jury, they would have given less damages, or where they might think the jury themselves would have completely discharged their duty in giving a less sum. Of all the cases left to a jury, none is more emphatically left to their sound discretion than such a case as this, and unless it appears that the damages are flagrantly outrageous and extravagant, it is difficult for the court to draw the line; ” so in Whipple v. Manufacturing Co., 2 Story, 661, it is said by Mr. Justice Story that a verdict should not be set aside as excessive in cases of tort, “ unless the court can clearly see that the jury have committed some very gross and palpable error, or have acted under some improper bias, influence or prejudice, or have totally mistaken the rules of law by which the damages are to be regulated; ” and by Mr. Justice Matthews in Barry v. Edmunds, 116 U. S., 565; S. C. Rep., 517, that “in no case is it permissible for the court to substitute itself for the jury, and compel a compliance on the part of the latter with its own view of the facts in evidence as the standard and measure of that justice which the jury itself is the appointed constitutional tribunal to award.”

We perceive no error in the rulings of the learned trial judge, and the judgment and order appealed from should be affirmed, with costs.

Daly, Oh. J., and Pryor, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    P. Clayton Stevens, Resp’t, v. The Metropolitan Life Ins. Co., App’lt.

      (New York Common Pleas, General Term,

      Filed February 6, 1893.)

    Malicious prosecution — Probable cause.
    In an action for damages for malicious prosecution, whether defendant had “probable cause” for, or was actuated by “malice” in the criminal prosecution, were questions which depended mainly upon the further question whether or not plaintiff had truthfully testified that, at the time of tendering: his resignation from defendant’s employ, he had admitted having made collections, and demanded to be informed of the amount due him for “reserve salary,” and had offered to pay whatever he owed. Defendant’s superintendent denied the fact of such admission. Held, that it was the province of the jury to determine the conflict of evidence.
    Appeal from a judgment for plaintiff entered upon a verdict in his favor, and from an order denying defendant's motion for a new trial, made on the minutes.
    Action for damages for plaintiff’s malicious prosecution upon a charge of larceny.

      Edward F. O'Dwyer, for resp’t; Arnoux, Ritch & Woodford (C. N. Bovee, Jr., of counsel), for app’lt.
   Bischoff, J.

Plaintiff had been in defendant’s employ as a solicitor of insurance and collecting agent for a period of about two years immediately preceding May 10, 1889. On that day he resigned from the employment, and on the 21st day of the same month he was apprehended on a criminal charge preferred against him by defendant. The charge was larceny, and involved the alleged felonious misappropriation of $1.40 which had been ¡>aid him for defendant by one of its policy-holders. Upon this charge plaintiff was indicted by the grand jury, and subsequently tried and acquitted. Thereafter he brought this action to recover damages for his alleged malicious prosecution. The jury awarded him $2,000, and from the judgment which was entered on the verdict, and the order which refused it a new trial on the minutes, defendant appealed.

Whether defendant had “ probable cause ” for, or was actuated by “ malice ” in the criminal prosecution, were questions which, in the present case, depended mainly upon the further question whether or not plaintiff had truthfully testified that, at the time of tendering his resignation from defendant’s employ, he had admitted having made collections and demanded to be informed of the amount due him for “ reserve salary,” and had offered to pay whatever he should be found to be owing defendant for money collected for it Williams, defendant’s superintendent, denied the fact of such an admission, demand and offer, and testified that plaintiff denied having made any collections, but it was the province of the jury to determine this conflict of evidence as well as the degree of credibility to which the witnesses, both .being interested in the result of this action, were respectively entitled. The motions for dismissal of the complaint and for the direction of a verdict for defendant were, therefore, justly .denied.

In Willard v. Holmes, Booth & Haydens, opinion handed down herewith, we stated the legal principles which should control on the trial of an action for malicious prosecution, and careful consideration of the several exceptions to the rulings has resulted in our conclusion that these principles were not departed from on the trial of this.

The learned trial jfidge correctly ruled out evidence tending to show that at or about the time defendant caused plaintiff’s arrest he was guilty of an attempted fraud upon defendant utterly disconnected with the alleged crime of which he was accused. Plaintiff was not called upon, either in this action or in the criminal prosecution, to defend an accusation of such attempted fraud. It was for that reason irrelevant and incompetent; and in so far as appellant’s counsel urges that the evidence excluded was admissible because less convincing evidence is required to establish “ probable cause ” for the prosecution of a person suspected of crime if he is known to be of ill-repute, he trespasses upon the rale which forbids proof of ill-repute by evidence of specific acts.

Defendant’s counsel requested the court to charge that the facts that the police magistrate entertained the complaint in the criminal prosecution and issued a warrant for plaintiff’s apprehension, that plaintiff waived a preliminary examination in the police court, that he was subsequently indicted by the grand jury, that on trial of the indictment the question of plaintiff’s guilt was submitted to a jury, and that the jury deliberated for some time before arrriving at a verdict of plaintiff’s acquittal, constituted con- elusive evidence of “ probable cause ” for plaintiff’s prosecution ; and to the refusal so to charge exception was taken. As the matters mentioned, however, at most were prima facie evidence of “ probable cause,” Newell on Malicious Prosecution, etc., chap. VII, § 19, subd. 11, p. 290, the request was properly refused and the exception is without force.

The judgment and order appealed from should be affirmed, with costs.

Bookstaver, and Pryor, JJ., concur.


text:
    Howard A. Sperry, App’lt, v. Theodore Hellman et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed February 6, 1893.)

      1. Abrest — Undertaking.
    Defendants were sureties upon an undertaking given upon the issuing of an order of arrest in a civil action against the plaintiff and one R., and plaintiff was arrested on such order. ' The complaint in such action was dismissed by default, and this action commenced on the undertaking. Thereafter the sureties were permitted to try the issues in the former action, and a judgment was recovered, which was reversed on appeal, with costs to the defendants therein. PLeld, that plaintiff, to maintain his action, was bound to maintain that the dismissal by default was a final decision that the plaintiff was not entitled to the order of arrest, and having done so, cannot be permitted on appeal to avail himself of a contrary contention.
    2. Same — Parties—Damages.
    R. was not a necessary or proper party to this action, he not having been arrested, and hence the provisions of § 499 of the Code have no application, and defendants were not precluded from objecting to the allowance, as an item of plaintiff’s damages, of the costs awarded jointly to plaintiff and R.
    Appeal from a judgment of the general term of the city court of New York, affirming a judgment for defendants for the excess of their counterclaims over and above the sum to which plaintiff was adjudged entitled, which was entered upon a verdict directed by the trial court; and affirming also an order denying plaintiff’s motion for a new trial made upon a case and exceptions.
    Action to recover upon an undertaking given to secure an order of arrest pursuant to the provisions of § 559 of the Code of Civil Procedure.

      Howard A. Sperry, app’lt in person; Seligman & Seligman, for resp’ts.
   Bischoff, J.

Howard A. Sperry and Robert W. Reid were jointly sued in the supreme court by the Metropolitan Concert Company, Limited, for the alleged conversion of personal property ; an order for the arrest of both defendants was issued and executed as to defendant Sperry only ; and judgment was on April 15, 1885, recovered in that action, by default, against the Metropolitan Concert Company, Limited, for dismissal of the complaint with costs.

Asserting this judgment to be a final decision that the Metropolitan Concert Company, Limited, was not entitled to the order of arrest, Sperry brought the present action to recover upon the undertaking given to obtain it pursuant to the provisions of § 559 of the Code of Civil Procedure. Thereafter, the sureties on that undertaking were permitted by the supreme court to try the issues in the action brought - by the Metropolitan Concert Company, Limited, and this trial resulted in a judgment in its favor. On appeal to the general term this last mentioned judgment was reversed, and the reversal sustained by the court of appeals, which tribunal also directed judgment for the defendants for dismissal of the complaint, with costs. This action, which had been in abeyance, then proceeded, and upon trial plaintiff recovered a judgment, which, on appeal to us, was reversed because the trial court erroneously included in the recovery the expense which plaintiff had incurred’ for counsel fees in the supreme court action subsequent to the judgment therein of April 15,1885, and the general costs thereby awarded to both defendants. Our decision is reported in 18 N. Y. Supp., 899; 37 State Rep., 258, and, on motion for reargument of the appeal, we reaffirmed it, 16 N. Y. Supp., 954; 40 St. Rep., 991, and granted appellant leave to present the points involved to the court of appeals, of which, however, he has not availed himself.

On retrial of this action, the court eliminated from plaintiff’s recovery the items held by us to be objectionable, and this constitutes the burden of the present appeal. We are, therefore, in effect asked to review our former decision, but on grounds which counsel admits were not then presented.- These are that the judgment of April 15, 1885, in the action of the Metropolitan Concert Company, Limited, against Sperry and Reid, was not a final decision that the plaintiff was not entitled therein to the order of arrest, and that because the cause for arrest and the cause of action were identical, the counsel fees incurred on the subsequent trial of the issues and the appeals to the general term of the supreme court and court of appeals were necessarily incurred by Sperry to extricate himself from the arrest, and that the failure of the defendants in this action to object to the recovery of the costs awarded to Sperry and Reid-jointly in the supreme court action, by answer or demurrer, precluded them from such an objection under the provisions of § 499 of the' Code of Civil Procedure, that all objections which could have been raised by answer or demurrer, except those to the jurisdiction of the court, or that the complaint does not state facts sufficient to constitute a cause of action, are waived if the objection is not so taken.

The bare statement of them sufficiently refutes the tenability of the grounds now urged for reversal. If the judgment of April 15, 1885, against the Metropolitan Concert Company, Limited, was not a final decision that the plaintiff in that action was not entitled to the order of arrest, then obviously this action was prematurely brought and the complaint should have been dismissed, for the condition of the undertaking sued upon is that the plaintiff therein named will pay costs and damages “if it is finally decided that he was not entitled to the order of arrest.” To maintain his right to any recovery whatever in this action plaintiff had, there fore, necessarily to maintain the finality of the judgment of April 15, 1885, on the trial, and having done so he will not, on appeal, be permitted to avail himself of a contrary contention. Fulton v. Metropolitan L. Ins. Co., 47 St. Rep., 111; Fay v. Muhlker, 48 id., 699, 701. Defendants do not appeal, but clearly, if appellant’s present contention were held to be correct, and we should reverse the judgment, respondents, on a new trial, would be entitled to a dismissal of the complaint.

This action is not brought upon the judgment of April 15,1885, jointly recovered by Sperry and Reid against the Metropolitan Concert Company, Limited, for the costs of that action, but upon the undertaking therein given to obtain the order of arrest.' Reid was not arrested and is not a necessary or a proper party to an action by Sperry to recover the costs and damages which accrued to the latter by reason of his arrest. The provisions of § 499 of the Code of Civil Procedure have, therefore, no application, and defendants were not precluded on the trial from objecting to the allowance, as an item of plaintiff’s alleged damages, of a joint demand in favor of Sperry and Reid because they had not raised the objection that there was a defect of parties plaintiff by answer or demurrer.

The judgment and order appealed from must be affirmed, with costs.

Daly, Ch. J., and Pryor, J., concur.


text:
    David H. Carroll, Resp’t, v. Ann T. O’Shea, App’lt.

      (New York Common Pleas, General Term,

      Filed February 6, 1893.)

      1. Appeal — Exceptions.
    An exception to the admission of evidence is not available on appeal where the ground of the objection thereto was not stated.

      2. Dismissal qe complaint — Sufficiency oe evidence.
    Any defect in the proof at the time of the denial of a motion to dismiss the complaint on plaintiff’s evidence may be cured by evidence adduced by either party thereafter, and a failure to renew the motion is a concession of the sufficiency of the evidence.
    3. Appeal — New trial.
    No appeal lies to the common pleas from an order of the city court refusing a new trial.
    Appeal from a judgment of the general term of the city court of New York, affirming a judgment for plaintiff which was entered upon the verdict of a jury.
    Action to recover broker’s commissions on the sale of real estate.

      Frederick Hemming (Waldorf H. Phillips, of counsel), for resp’t; Fellows, Gray & Hartman, for app’lts.

       Affirming 46 St. Rep., 297.

   Bischoff, J.

Neither of defendant’s exceptions to the admission of evidence is available on appeal, because the ground of the objection is not stated. Cruikshank v. Gordon, 118 N. Y., 178; 28 St. Rep., 784.

Any defect in the proof when plaintiff rested could be and was cured by evidence adduced by either party after denial of defendant’s motion for dismissal of the complaint, S. & S. P. R. Co. v. Thatcher, 11 N. Y., 102, 112; Tiffany v. St. John, 65 id., 315, 317; Painton v. Northern Cent. R. Co., 83 id., 7; and defendant’s failure to renew the motion, or to ask that a verdict be directed in his favor, conceded the sufficiency of the evidence for submission to the jury. Barrett v. Third Ave. R. R. Co., 45 N. Y., 628; Schwinger v. Raymond, 105 N. Y., 648; 7 St. Rep., 544.

The case contains no order denying defendant’s motion on the minutes for a new trial, and an exception only to the denial of such a motion is ineffectual for any purpose. Matthews v. Mayberg, 63 N. Y., 656; Boos v. World Mut. L. Ins. Co., 64 id., 236.

Besides, no appeal lies to this court from an order of the city court refusing a new trial. Code Civ. Pro., § 3191; Wilmore v. Flack, 96 N. Y., 512; Smith v. Pryor, 16 Daly, 169; 30 St. Rep., 553.

The judgment appealed from must be affirmed, with costs.

Daly, Ch. J., and Pryor, J., concur.


author: Bookstaver, J.

text:
    Frank J. Tinkham, App’lt, v. John H. Knox, Ex’r of the Estate of William S. Livingston, Resp’t.

      (New York Common Pleas, General Term,

      Filed February 6, 1893.)

    1. Brokers — Commissions—Charge.
    In an action for commissions for letting real estate without employment to do so, but on the ground that such services had been accepted, it is not error to refuse to charge that while the owner is entitled to know that the broker has been instrumental in sending the tenant, yet when he learns that the tenant has received information of his intention to let, and his price, the owner is bound to inquire whence the tenant got his information, as this presupposes that leases are never made without the intervention of a broker, and that do information could be received as to what property was to be let except through them.
    3. Same — Evidence.
    In such an action a question put to plaintiff on cross-examination as to whether he understood that the agreement between the owner and tenant was completed at a certain time, is proper.
    Appeal from a judgment of the general term of the city court of New York, affirming a judgment entered on the verdict of a jury.

      W. C. Beecher, for app’lt; J. Van Vechten Olcott, for resp’t.

       Affirming 46 St. Rep., 30.

   Bookstaver, J.

This action was brought to recover commissions for the letting of certain premises owned by defendant’s testator, which letting plaintiff claims to have been procured through him. There is no allegation in the complaint that he was ever employed by the defendant’s testator as a broker, the sole ground for recovery as alleged in the complaint being that the defendant, with knowledge that the services had been rendered, accepted the same, and entered into a lease with the tenant procured by the plaintiff. The fact of employment was denied by the defendant, as well as the rendition of services ; and evidence on both sides was given on these questions sufficient to require their submission to the jury, which was done in a charge so fair that the plaintiff did not except thereto, and their conclusion upon these questions must be final.

The only questions reviewable by this tribunal are one exception to the refusal of the court to charge, and two or three exceptions to the admission of evidence. The request to charge was that while the owner is entitled to know that the broker has been instrumental in sending the tenant, yet when he learns that the tenant has received information of his intention to let and his price, the owner is bound to inquire whence the tenant got his information ; which the court refused to charge and plaintiff excepted. We know of no law supporting this exception and the appellant has referred us to no authority. The exception is no well taken, because the request presupposes that leases are never made without the intervention of brokers, and that no information could be received as to what property was to be let except through them, which is manifestly not the case.

On cross-examination the plaintiff was asked whether he understood that the agreement between Mr. Livingston and Mr. Dean was completed at a certain timé, which was allowed under plaintiff’s objection, and to which he excepted. This question on cross-examination was entirely proper, as it related to one of the issues in the case, and tended to show whether or not services had been rendered and accepted by the defendant’s testator at the time, and did not call so much for a conclusion as for his understanding of the status of the negotiations at that time. And this also disposes of the exception to the question put to the plaintiff on cross-examination, as to whether or not he considered the agreement between him and the defendant’s testator a perfect agreement at a particular time. Even if the objection to the question asked of one of defendant’s witnesses, as to the meaning of a certain expression in a letter, were well taken, it cannot avail him here, as the question was not answered. If the objection was to the answer, it could only be taken advantage of by a motion to strike it out.

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

Bischoff and Pryor, JJ., concur.


text:
    Antonio G. Pucci, Resp’t, v. Charles T. Barney, App’lt.

      (New York Common Pleas, General Term,

      Filed February 6, 1893.)

    1. Contract — Surveyor’s certificate — -Burden of proof.
    Where the contract provides that the measurements shall be made by a certain surveyor, and the payments made on his certificate, and defendant in an action for the final payment alleges overpayments, and that the surveyor’s certificate is untrue and incorrect, it is not error to refuse to charge that the production of the surveyor’s certificate did not throw upon defendant the burden of proving that it was untrue and incorrect, as alleged.

      <2. Same — Custom.
    Parties are presumed to contract with reference to uniform, continuous and well settled usages pertaining to the matters as to which they contract, where such usage is not in opposition to well settled principles of law and is not unreasonable.

      Appeal from a judgment of the general term of the city court, affirming a judgment entered on the verdict of a jury, and affirming an order denying a motion for a new trial.

      Arnold & Green, for app’lts; Ezekiel Fixman, for resp’t.

       Affirming 48 St. Rep., 30.

   Bookstaver, J.

This action was brought to recover the sum of $1,245.20, and interest, which the plaintiff claimed was the balance due to him from the defendant for excavating rock and earth from twelve lots belonging to the defendant, which was done under a written contract, providing, among other things, that the “ Measurements shall be made by Bobert A. Serrell, city surveyor, and the payments shall be on his written certificate,” and that the. defendant would pay for said work at said prices on the certificate of said surveyor. The answer denied that the plaintiff excavated- the amount claimed, and alleged that the amount of rock excavated under the contract did not exceed 9,091 cubic yards, and that the earth excavated did not exceed 5,087 cubic yards, and that the defendant had overpaid the plaintiff for this amount of work, for which he counterclaimed, alleging that the over payments had been made by reason of the incorrect statements of the surveyor. The plaintiff, on his part, introduced in evidence the certificates of Mr. Serrell, the surveyor named in the contract. As was well stated in the opinion of the court below, “ the serious objections of the appellant on this appeal are based upon the-ground that the admission on behalf of plaintiff of the foregoing certificate of the surveyor, made as provided for in the contract, did not throw upon defendant the burden of proving that this certificate was untrue and incorrect, as he had alleged in his answer.” In the case of Wyckoff v. Meyers, 44 N. Y., 145, the court says: “ Where a building contract provides that the last instalment shall be paid by the defendant when all the work is completely finished and certified to that effect by the architects, under whose direction the work shall be done, the production of the certificate of the architects is conclusive upon the defendant unless obtained through fraud or mistake.”

And in Anderson v. Meislahn, 12 Daly, 149, it was held that the parties having selected their own umpire who was to ascertain and determine that the contract had in these respects been complied with, his certificate should be regarded as conclusive and binding upon defendant, unless defendant could show that it was obtained by fraud or mistake, or it appears that the contract had not as a whole been substantially complied with. See, also, People ex rel. Ready v. Mayor, etc., of Syracuse, 65 Hun, 321; 47 St. Rep., 581. In Dr. Abbott’s valuable paper on “ The Burden of Proof,” Harvard Law Beview, vol. 6, Ho. 8, it is said: “In a number of cases the judges, using general language, though speaking in view of the particular case before them, have said that the burden of proof is always on the plaintiff throughout. It ought to be observed, however, that the burden of proof is on the plaintiff only when he has invited the issue; if the only issue to be tried is one which the defendant has invited, the burden of proof is on the defendant. Thus, if the only defense is a denial, the burden of proof is on the plaintiff. If there is no denial, but an admission, express or implied, of the plaintiff’s allegations, and the defense is an affirmative statement of new matter in excuse or discharge, the burden of proof is on the defendant” And these propositions he fully illustrates and supports in that article.

The trial judge, therefore, was fully justified in refusing to charge upon this question as requested by the defendant.

Appellant also contends that the court erred in permitting the plaintiff to prove the custom of surveyors in making allowances to excavators where the excavator is required to excavate below the depth mentioned in the contract to reach a level. This custom was clearly proved and must have been known to both parties at the time of entering into the contract, and they are presumed to contract in reference to uniform, continuous and well settled usage pertaining to the matters as to which they entered into an agreement, where such usage is not in opposition to well settled principles of law and is not unreasonable. Walls v. Bailey, 49 N. Y., 464; Sims v. U. S. Trust Co., 35 Hun, 533; Ford v. Tirrell, 9 Gray, 401; Barton v. McElway, 22 N. J., 165; Atkinson v. Truesdell, 127 N. Y., 230; 38 St. Rep., 159; Smith v. Clews, 114 N. Y., 190; 23 St. Rep., 166.

Everyone knows that in excavating soil it cannot be done to the exact line and nothing more, but that some slope must be allowed for or there would be danger of the superincumbent earth falling upon and injuring those doing the work in the excavation. And it is equally clear that in blasting rock in order to obtain a uniform level there must be some allowance made for excavations beyond the level desired: and where the rock is hard and runs in seams, some must be loosened beyond the exact line of the property to be excavated and must be removed, or its loose condition would be a constant menace to those engaged in the work.

The court did not err in refusing to allow the defendant’s offer to prove that he had paid the surveyor, Serrell, $100. As stated in Gerard v. Cowperthwait, handed down herewith, 50 St. Rep., 592, the court will not, as a rule, review mere offers. The offer, even if we would review it, is not broad enough. It does not appear from it that the amount paid was more than the defendant was bound to pay the surveyor as his share of the latter’s charges. It was not pleaded.

Nor was it error for the court to refuse the defendant’s offer to prove that plaintiff took the material of an old house on the premises and agreed to allow defendant $150 for the same. It was a mere offer ; it was not alleged in the pleadings and was not within the issues framed thereby.

The judgment should be affirmed, with costs.

Bischoff and Pryor, JJ., concur.


text:
    Frank Lugar, App’lt, v. Joe A. Swayze, Resp’t.

      (New York Common Pleas, General Term,

      Filed February 6, 1893.)

    1. Married women — Contract.
    Defendant, who occupied a flat with her husband, employed plaintiff to paint and decorate it, clean carpets, etc. An estimate was made in her name, but after several demands of payment plaintiff accepted the note of defendant’s husband and subsequently recovered judgment thereon. Held, sufficient to show that plaintiff looked to the husband as the debtor, and that defendant was not liable.
    3. Evidence — Payment.
    Under a plea of nil debet any fact tending to show that there was no indebtedness, such as a note given for the debt, is admissible.
    Appeal from a judgment of the general term of the city court, affirming a judgment entered on a nonsuit and affirming an order denying a motion for a new trial.

      William Douglas Moore, for app’lt; Palmer, Boothby & Warren, for resp’t.

       Affirming 49 St. Rep., 38.

   Bookstaver, J.

This' action was brought by the plaintiff, a decorator, against the defendant, a married woman, for work done in papering and decorating the flat No. 226 West Fifty-ninth street, New York, and for certain work done in cleaning carpets and in removing and packing furniture, etc. A written estimate was made out in her name by the plaintiff and sent to her by mail. Plaintiff himself testified that he knew defendant was a married woman, and in one of the interviews with him had told him she had submitted it to her husband, who thought it too high ; and there was other testimony given by plaintiff strongly tending to show that he knew that defendant had a husband living. Under such circumstances, we think it was his duty to have informed himself as to whom the flat belonged. After the work was finished plaintiff demanded payment from the defendant by mail several times, and in response to his last request he received a promissory note made by defendant’s husband for the full amount of the bill, which he accepted. When it became due and was unpaid plaintiff wrote Mr. Swayze asking for its payment, and offered to renew it for a portion of the amount if necessary. Thereafter the plaintiff sued on this note and obtained judgment' thereon in the state of New Jersey. In an action against a married woman for repairs on her house, proof that the plaintiff obtained judgment against her husband is conclusive evidence that the plaintiff looked to him as the debtor. McCausland v. King, 26 N. W. Rep., 836. Appellant contends, however, that he ought not to be concluded thereby, as the action in New Jersey was based upon the promissory note and not upon the original claim. But the original claim was the only consideration for that note, and without such consideration the note would have been void as between the parties.

As far as we are able to see from the return, there is nothing to distinguish this case from any other where the wife, as a part of her family duties, superintends and looks after the family home, seeing that it is kept in order and suitable for a family residence. If the defendant could be held personally liable in this action, there is nothing to hinder any tradesman from holding the wife liable for everything pertaining to the household which she directs to be done; and she would be liable for the hire of the household servants, who are always under her direction and selection.

The cases cited by the appellant as to the effect of judgments refer to instances where two people are severally liable for the same debt. In such case, it is true, judgment against one is no defense to an action against the other.

Appellant also contends that it was error to admit in evidence the note given by Mr. Swayze, claiming that its introduction tended to prove payment, which was not pleaded, and which should have been if he had desired to avail himself of that plea. But under the plea of nil debet any fact tending to show there was no indebtedness on the part of the defendant was admissible. Lent v. N. Y. & M. R. Co., 130 N. Y., 511; 42 St. Rep., 592. He also contends that the defendant’s motion to dismiss was not broad enough to cover the questions raised; yet it was plainly made upon the theory and contention that no claim against defendant had been proven, but, on the other hand, the proof showed that the defendant’s husband was the debtor and had been made so by the highest authority known to the law.

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

Bischoff and Pryor, JJ., concur.


author: Bookstaver, J. Pryor, J.

text:
    Jennie Fisher, Resp’t, v. Robert P. Monroe et al., App’lts.

      (New York Common Pleas, General Term,

      Filed February 6, 1893.)

    1. Evidence — Admissions on former trial.
    The admissions of a party made on a former trial are admissible against him without first calling his attention thereto. The rule requiring counsel to interrogate a witness respecting an alleged contradictory statement before the latter can be given in evidence does not apply to parties to the action, and as to them such statement is admissible as a declaration against interest.

      2. Same — Hypothetical question.
    It is error to admit in evidence answers to a hypothetical question which does not fully and fairly state all the facts proved which bear on the issue.
    3. Contract — Damages.
    Where a contract provides that either party may cancel the agreement by giving two weeks notice to the other, the plaintiff in an action for wrongful discharge can recover only for two weeks salary.
    Appeal from an order of the general term of the city court of New York, affirming a judgment entered upon a verdict in favor of the plaintiff.

      Wilson W. Hoover and Willam Sulzer, for app’lts; Seaman Miller, for resp’t.

       Reversing 48 St. Rep., 510.

   Bookstaver, J.

This is the second appeal to this court, 16 Daly, 461; 34 St. Rep., 760, and it is unnecessary to state the facts further than will be needed to understand the questions raised on this appeal. The action was for damages sustained by the plaintiff, an actress, by reason of her alleged wrongful discharge by the defendants, who were theatrical managers and proprietors, before the'end of the season specified in the contract between them. The chief ground of the reversal on the former Appeal was that the contract would not necessarily be terminated by a mere temporary disability of the plaintiff, but that as no sufficient excuse for her non-attendance at the rehearsal had been shown, a verdict in her favor could not be sustained; consequently, the chief contention on the second trial centered around this question. In aid of their contention the defendants’ counsel offered plaintiff’s cross-examination on a previous trial in evidence to prove admissions by her as to whether or not she was ill or merely tired out, and also to prove her admissions as to her duties as an actress upon rehearsals.

The court excluded the evidence, unless the attention of the witness was first called to what she had testified to on the former trial. The defendants’ counsel thereupon stated to the court that it was not for the purpose of impeaching the witness, but to prove admissions made by her. Still the court would not allow him to do so, and defendants’ counsel excepted.

It is well settled that an admission made at one stage of an .action binds the parties at all subsequent stages as primary evidence. Larrison v. Payne, 23 St. Rep., 438; Scofield v. Spaulding, 28 id., 108; 54 Hun, 523; Tooker v. Gormer, 2 Hilt., 71. The rule which makes it incumbent upon the cross-examining counsel first to direct the witness' attention with reasonable precision to, and interrogate him respecting an alleged contradictory statement, before the latter may be given in evidence, Crane v. Hardman, 4 E. D. Smith, 448; Everson v. Carpenter, 17 Wend., 419; Root v. Brown, 4 Hun, 797, does not apply to parties to the action, Kennedy v. Wood, 52 Hun, 46; 22 St. Rep., 132; Boehm v. Miller, 45 id., 281, and as to them the alleged contradictory statement is admissible as a declaration against interest. Cook v. Barr, 44 N. Y., 156; Williams v. Sargent, 46 id., 481. And in Meyer v. Campbell, 48 St. Rep., 666, we held that though the statement be a part of a pleading which has been superseded by the service of an amended one, it could still be given in evidence. And in the same case we held that the defendant had the right to offer, and it was error to exclude, plaintiff’s deposition taken de bene esse which was at variance with the allegations of the amended complaint, although that deposition was not competent in plaintiff’s favor since he was present at the trial, but on the ground that it was a declaration against his interest. It was, therefore, error to exclude the cross-examination of the plaintiff on the former trial as far as that related to the questions at issue on this trial. Nor was this error cured by afterwards admitting portions of it in rebuttal in order to impeach the witness, as it must be apparent "that the force of the evidence was greatly weakened by the cross-examination imposed on defendants as a preliminary and the jury might well have been misled as to its weight and effect in consequence. For such a course is very likely to prejudice the minds ■of a jury, especially in the case of a lady, on account of the necessarily unpleasant position in which the party is placed thereby and the apparent harshness of such a course. Besides, the admission was not as broad as the former offer of the defendants.

.We also think it was error to admit the testimony of plaintiff’s experts against defendants’ objection to the hypothetical question, as in our judgment that question did not fully and fairly state all the facts which had been proved in the case bearing upon the issues to be determined.

When this case was before us on the former appeal, defendants were not in a position to raise the question as to the extent of the •damages recoverable in this action, because that had not been sufficiently raised in the court below upon the former trial. But it was distinctly raised on this by defendants’ fifth request to •charge, which was, “ If you find for the plaintiff, then she “shall be entitled to recover only for two weeks salary with interest, less any amount she may have received for services renderedthis was declined by the court, and defendants excepted. The contract expressly provided that either party should be at liberty to cancel the agreement by giving two weeks notice to the other ; and in this respect follows the custom in hiring servants. Sedgwick on Damages lays down the doctrine that notice in such cases was provided in order to allow for liquidated damages. If plaintiff had been paid two weeks’ wages in advance when discharged, she would have had no cause of action. And it is difficult to conceive of a more peremptory notice than the one given the plaintiff. This very question came up for consideration in the city court in the case of Peverly v. Pool, cited and approved in Parry v. Am. Opera Co., 19 Abb. N. C., 270, where the court in delivering the opinion said: “ The only injury which plaintiff could suffer by reason of not receiving the two weeks’ notice provided by the contract would be the amount of the salary for two weeks, and this amount was allowed by the trial court.”

The j udgment should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event

Bischoff, J., concurs.

Pryor, J.

I concur in the result, but without committing myself to the- rule of damages propounded in the prevailing opinion.


text:
    John W. Young, App’lt, v. Sophia Young, Impl’d, Resp’t.

      (New York Common Pleas, General Term,

      Filed February 6, 1893.)

    1. Decedent’s estate — Liability for debts and funeral expenses.
    The whole estate of a decedent, personal and real, is subject to his debts, and for funeral expenses and a monument, if reasonable in amount.
    2. Same — Accounting—Limitation.
    On an accounting of both real and personal estate from the time the trust was created, there is no statute of limitations.

      3. Same — Sale of real estate by consent.
    Where real estate has been sold by consent of the parties without any order of the court, the proceeds of such'sale may be so far regarded as personalty as to authorize a court of equity to direct the allowance of funeral expenses out of them.
    4. Same — Evidence.
    In an action for a general accounting in such case, evidence as to the personal property left by the decedent and as to the amount of the funeral1 expenses and cost of burial lot and monument is admissible.
    Appeal from a judgment of the equity term of this court.

      E. F. Bullard, for app'lt; Robert E. Deyo, for resp’t.
   Bookstaver, J.

John Young died in New York city July 22, 1867, leaving a will by which he gave to the respondent, Sophia Young, his wife, all his real and personal estate to use and enjoy during her life, and after her death he gave the same to the plaintiff and the defendant, Maria Louise Gfuth, his children, share and share alike. The plaintiff brought this action for an accounting, the demands for relief being first that there should be an accounting, and second that a receiver of the fund be appointed. After the court heard the evidence,the plaintiff presented requests for findings, many of which were refused, but no exception was taken to any such refusal, consequently this appeal is limited to a consideration of the exception to the findings of fact and conclusions of law made by the court and exceptions to the admission of evidence.'

The first question raised by the appeal is whether or not the court erred in allowing to the defendant the funeral expenses and the cost of a burial plot and of a monument erected thereon. The appellant contends that none of these are charges against the real estate and could not be made a lien thereon, and, therefore, were improperly allowed. The first answer to this contention is that the court has found, and we think upon sufficient evidence, that all of these expenses were expressly assented to by the plaintiff at the time they were made, and he cannot now come in and repudiate that consent. But even if he could, we think the court properly allowed these expenses, for the whole estate, personal and real, is subject to the debts of the decedent, and such expenses as those under consideration, if reasonable, stand on even better footing than the debts contracted by the decedent, and in some instances have been allowed even where the estate is insolvent. Cornwell v. Deck, 2 Redf., 87; Owens v. Bloomer, 14 Hun, 296; Tickel v. Quinn, 1 Dem., 425. Much more will they be a charge where the estate is not only solvent, but of considerable amount. Patterson v. Patterson, 59 N. Y., 574; Ex parte Fraser, 92 N. Y., 239; Redf. Surrogate’s Prac., 441.

The only question to be raised in regard to either the funeral expenses or the monument, therefore, is whether or not they were reasonable under the circumstances and considering the decedent’s station in life and the estate left by him. Inasmuch as the learned trial judge has, by allowing these items, found that they were not excessive, we see no reason for questioning that conclusion ; especially in view of the fact that these expenses were assented to by the plaintiff at the time they were made. But it is claimed by the appellant that they ought not to have been allowed because the statute of limitations ran against them. This leaves out of sight the fact that this was a general accounting of both real and personal estate from the time the trust was created down to the time of trial, and, as far as we are aware, there is no statute of limitations on such an accounting, and if there were, it would work more strongly against the appellant, in this case, than against the respondent.

It is also contended that these charges should not have been allowed as against the real estate, because there was no order made by the proper court directing such sale. But it is clear from the case that the personal property was not sufficient for these purposes, and, inasmuch as all the parties to this action had consented to the sale of the real estate without any order of the court, we think that the proceeds of such sale could be so far regarded as personalty as to authorize a court of equity to direct the allowance' of these expenses out of such proceeds.

The exceptions to the admission of evidence were not argued before us at any length, nor has the appellant made any point upon those exceptions, except the general one that the court erred in overruling the objections and admitting evidence. Under such a general point we would not ordinarily feel that we were required to examine them, but in this case we have done so with some care, and we find that the exceptions were not well taken. The husband of one of the heirs was asked, “ Was there any personal property left by John Young?” This was objected to, overruled, and exception taken by appellant.

The question was, in our judgment, proper ; the action was for a general accounting, such an accounting covers not only all the receipts from the, real estate, but also all the personal property, for the income of both was left to the widow ; hence it was proper to show and settle in this suit just what was the personal property of the deceased which came into the hands of the executor.

The question as to the amount of the funeral expenses was also objected to, but it was clearly permissible for the reasons above stated. The objection that the funeral expenses were no lien upon the real estate was, as before shown, not well taken. And the same applies to evidence in regard to the monument and burial plot

We cannot perceive the force of the objection in regard to the testimony as to all the real estate, or why appellant should have desired to limit it to three of the five parcels only, and he has not deigned to enlighten us by anything said in his points or during the course of his argument.

The judgment should, therefore, be affirmed with costs.

Daly, Oh. J., and Pryor, J., concur.


author: Gildersleeve, J.

text:
    Patrick Lahey, Resp’t, v. The Central Park, North & East River Railroad Co., App’lt.

      (New York Superior Court, General Term,

      Filed March 6, 1893.)

    1. Negligence — Street Railroad.
    While a person may not recklessly, carelessly or willfully obstruct the passage of the cars of a street railroad, he is not bound to keep off the tracks; and if he fairly and in a reasonable manner, respecting the paramount right of the railroad company, temporarily obstruct the track, when necessarily engaged in the prosecution of a lawful business, and be, without fault on his part, injured by negligence chargeable to the railroad company, he may maintain an action for his damages.
    2. Same — Contributory.
    Plaintiff, and his fellow workmen, had placed a heavy water pipe on the ground close to the excavation made for it, with the end against the track, when one of defendant’s cars struck it and threw it against plaintiff, who was standing with his back toward it. A watchman had been placed at this point by defendant. Held, that the questions of negligence were for the jury to determine, and that the evidence warranted a verdict for plaintiff.
    Appeal from a judgment, entered on the verdict of a jury, and from an order denying defendant’s motion for a new trial.

      Harmon H. Shook, for resp’t; Vanderpoel, Cuming & Goodwin (Henry Thompson, of counsel), for app’lt.
   Gildersleeve, J.

This action was brought to recover damages for injuries to plaintiff, caused by the alleged negligence of defendant. The defendant is a corporation, and maintains and operates street railways in the city of New York. At the time plaintiff received the injuries complained of he was engaged, with other workmen, in the employ of the city of New York, in laying water pipes in Old Slip, in said city, near the defendant’s railway track. A cut had been excavated to the depth of about four feet, for the purpose of receiving a six inch pipe, twelve feet long and weighing about four hundred pounds. . Plaintiff’s fellow workmen had placed the pipe in close proximity to the cut into which it was to be put, with the hub end of the pipe against the down town track, when tine of defendant’s cars came along, and the step of the car struck the hub end of the pipe and whirled it around, over and across the cut. At this time the plaintiff was standing between the cut and the pipe, at a point near the middle of the pipe, with his back to the approaching car, when the pipe, thus put in motion, struck him on his feet, and caused the injuries under consideration.

It was not claimed upon the trial that plaintiff was guilty of contributory negligence. A careful examination of the record fails to disclose evidence of any negligence whatever on the part of plaintiff. The circumstances of the case, as developed by the testimony, warranted the trial court and jury in concluding, as the conduct and result of the trial indicate they must have dope, that the plaintiff was free from any fault contributing to the injury. It was the duty of the plaintiff to prove by satisfactory evidence that he did not contribute to the injury by any negligence on his own part, and this requirement of the law of negligence he fairly met.

The evidence does not disclose negligence on the part of the fellow workmen of plaintiff. It was necessary for them to have the pipe where it was, that they might place it in the cut which had been prepared for it, when it was struck by the step of defendant’s car; and, so far as appears from the evidence, they did what they could to avert the accident. Any reasonable and temporary occupation by them of defendant’s tracks, in the prosecution of their work, was justifiable, and could not be made the basis of a charge of negligence. A street railroad company has not the exclusive right to the use of its tracks, but simply a paramount right. Fleckenstein v. Railroad Company, 105 N. Y., 655; 8 St. Rep., 32. The railroad company has the preference. Warner v. Railroad Company, 44 N. Y., 465. While a person may not recklessly, carelessly or wilfully obstruct the passage of the cars of a street railroad, he is not bound to keep off the tracks ; and if he, fairly, and in a reasonable manner, respecting the paramount right of the railroad company, temporarily obstructs the track, when necessarily engaged in the prosecution of a lawful business, and is, without fault on his part, injured by negligence chargeable to the railroad company, he may maintain an action for his damages. Fleckenstein v. Railroad Company, supra.

The learned counsel for the appellant challenges the judgment upon three grounds, to wit: First, plaintiff’s failure to establish any negligence on the part of the defendant; second, excessive damages; and third, errors of the court in refusing to charge certain requests of defendant’s counsel.

The charge of negligence on the part of defendant’s driver was fairly supported by the testimony of unimpeached and uncontradicted witnesses, and upon this question the jury found adversely to the defendant, and we are of opinion that the evidence justifies their conclusion. The work of digging cuts and lowering pipes had been going on, at or near the point where the accident occurred, for several days. The superintendent of the defendant testifies that he had placed a watchman at this point, when the cut came near to the defendant’s tracks, to look after the interests of the company, and “ see that our horses got safely by the opening, and that there were no obstacles in any way.” At the time of the accident this watchman was temporarily absent. The car came along and passed the cut at a rate of six miles an hour, and continued on its course without stopping. A fellow workman of the plaintiff, apprehending danger, put up his hand to stop the approaching car. Reither the driver nor the conductor of the car were called as witnesses, and whether this warning was seen or not does not appear. If it was seen by the driver, it is certain that he did not heed it.

The act of the driver of defendant’s car in approaching and passing this point, where the conditions were such as to cause the defendant to apprehend danger and consequently place a watchman on guard, at the rapid rate of speed which the uncontradicted testimony shows he was driving, together with the other circumstances disclosed by the evidence, warranted the jury in concluding that the driver was guilty of negligence. The evidence, when taken as a whole, indicates very forcibly that it was the duty of defendant’s driver to approach and pass this point slowly and cautiously, at a rate of speed which would have enabled him to stop his car almost instantly, upon discovering danger. See Schneider v. R. R. Co., 133 N. Y., 583; 44 St. Rep., 680; McGrath v. N. Y. C. & H. R. R. R. Co., 63 N. Y., 522; Kissenger v. R. R. Co., 56 id., 538; Ernst v. R. R. Co., 39 id., 61.

We cannot agree with the learned counsel for the appellant that the facts in the case of Schmidt v. Steinway & Hunter's Point R. Co., 132 N. Y., 566; 43 St. Rep., 683, were stronger for the plaintiff than are the facts in the case at bar.

The court of appeals, three judges dissenting, granted a new trial in the Schmidt case, upon the ground “ that the evidence failed to establish negligence on the part of the defendant.” In •that case, the cut, railroad track, pipe and car correspond to the facts in this case, but the management of the car by the driver and the incidents in other respects are very different. In the Schmidt case the driver stopped the car as it approached the cut ; the conductor looked along the track and concluded there was room to pass; the foreman in charge of the workmen signalled to the driver to come on, and - the driver moved along at a walk, passing two sections of pipe, striking the third, and thereby causing the injury. Upon this state of facts it might well be said that the driver exercised the care required by the circumstances.

With regard to the contention of appellant’s counsel that the verdict is excessive in the amount awarded as damages, we think that a verdict of $1,000 is not unwarranted by the facts disclosed by the evidence in this case.

No exceptions were taken to the admission or exclusion of testimony. What we have already said disposes of the errors assigned by the learned counsel for appellant to the trial court in refusing to charge as requested in respect to fellow workmen and defendant’s unrestricted use of its tracks. We are of opinion that the questions in this case were clearly for the jury, and that they were fairly submitted to the jury by the learned trial court in a comprehensive charge that correctly stated the law.

For the reasons above set forth, the judgment and order appealed from must be affirmed, with costs.

Dugro, J., concurs. .


author: Dugro, J.

text:
    Edward Corrigan, Resp’t, v. The Coney Island Jockey Club, App’lt.

      (New York Superior Court, General Term,

      Filed March 6, 1893.)

    1. Pleading — Complaint—Demurrer.
    A complaint is demurrable, although it may contain a statement of facts constituting a cause of action for money, where it only demands judgment for equitable relief, to which plaintiff is not entitled, and there is no answer.
    *2. Racing associations — Entries.
    A racing association organized under the law of the state, which offers stakes and purses for races, is a private and not a public corporation, and is under no duty to allow all persons to whom it has no reasonable ground for objection to enter horses for such stakes and purses, but may choose its own customers, and may do, or refuse to do, any particular business offered it.
    3. Same.
    The grant to such association of the right to make and register bets and pools on the result of its races is not a grant of state aid which imposes on it the fulfilment of a public duty, but rather the removal for certain periods of the prohibition of the statute.

      Appeal from interlocutory judgment overruling demurrer to complaint

      Platt & Bowers, for app’lt; Howe & Hummel, for resp’t.
   Dugro, J.

This is an appeal from an interlocutory judgment, overruling'defendant’s demurrer.

From the complaint it appears that the plaintiff at the times referred to in his pleading was engaged in the business of breeding and running horses for stakes and purses at the different race tracks throughout the United States, and has over $100,000 invested in said business; that defendant at these times was, and still is, a corporation organized under the laws of the state of Hew York, and the owner of a race track; that one of the objects for which it was formed is the improvement of the breed of horses; that to accomplish this object it conducts horse races, and that to induce owners of thoroughbred race horses to compete and to raise the standard of such horses, the defendant makes up what are known as stake and purse races, which are run at its tracks each year; that several other corporations do the same for the same purposes.

After setting forth the way in which stake and purse races are made up and describing the manner in which horses are entered in these races, the complaint states that in order to be a competitor in a stake race, it is necessary that entries be made before certain times fixed for each event; that the right to enter horses is granted by the defendant, as it is by every similar corporation, to ■every person of good repute who desires his horse to contest for either a purse or a stake; that defendant, in addition to the right granted to it by its incorporation to have contests of speed and endurance and to continue the business of giving races, has further rights and privileges granted to it by the state; to wit: the right to make and register bets and to sell pools on the result of such races.

The complaint further sets forth a statement of facts relied upon as sufficient to constitute a cause of action at law to recover the amount of the second money in a race called the Futurity race of 1891; and continuing, states that the defendant, in order to punish the plaintiff for having applied to this court for redress against an unwarranted action of the defendant, ordered that the plaintiff be thereafter excluded from making any entries whatever, or racing his horses upon defendant’s track.

The complaint further states, that several racing corporations, including the defendant, owning and controlling the principal race tracks in the state of Hew York, illegally and for the purpose of ■oppression and coercion, and to form a monopoly to prevent opposition, confederated together under the title of the Board of Control ; that the board is composed of the officers of each of said corporations and is not incorporated ; that the board, without right, ordered that no entries of any horse for races be received from, the plaintiff by any of the corporations referred to. That each of these corporations has the same privileges and franchises granted by law as the defendant That since said order was made plaintiff forwarded in writing, pursuant to the rules and regulations of defendant, an entry of a horse for a sweepstake race; that defendant refused the entry. Plaintiff alleges that in order to become entitled to run horses in certain stake races, it is necessary for entries to be made prior to the closing of the several stakes, which closing the defendant has announced as about January 15, 1892, for the spring races, and August 15, 1892, for the autumn races.

The plaintiff alleges that he will sustain irreparable injury, unless the relief he desires is granted. The relief he demands is contained in the last subdivision of the complaint, which reads as follows : Wherefore, plaintiff prays the judgment of this court, that the said defendant be required to grant to plaintiff the same privileges as are accorded to all other reputable persons in good standing; that the defendant be ordered and adjudged to receive such entries as this plaintiff may make in races to take place on said race course; that the defendant be ordered and adjudged, so far as in its power lies, to cause the said order of the said confederation, to wit: the board of control, to be rescinded and revoked, and that the plaintiff have such other and further relief as may be just and equitable, and that plaintiff recover costs and disbursements.

The demurrer was to the complaint. It was overruled upon the ground that the complaint presents a legal cause of action to recover the amount of the second money in the Futurity race of 1891. and, therefore, is not demurrable.

Although the complaint may contain a statement of facts sufficient to. constitute a cause of action at law for the amount of this second money, there could have been no judgment in favor of the plaintiff based upon it, as there was no demand for a money judgment and no answer. Section T207, Code of Civil Procedure, provides that “ where there is no answer the judgment shall not be more favorable to the plaintiff than that demanded in the complaint” That demanded in the plaintiff’s complaint was for equitable relief only, and to this he was not entitled.

As there could have been no judgment upon the trial in favor of the plaintiff, it follows that judgment should have been given in favor of the defendant. Kelly v. Downing, 42 N. Y., 71; Willis v. Fairchild, 51 Supr., 405; Alexander v. Katte, 10 Daly, 506; Swart v. Boughton, 35 Hun, 281. There is a dictum in Wetmore v. Porter, 92 N. Y., 76, which would lead to a contrary conclusion; but the authorities cited in support of it are not in point and do not sustain the statement, as in all of the cases cited answers had been interposed. In Porous Plaster Co. v. Seabury, 43 Hun, 611; 7 St. Rep., 249, the complaint contained a proper demand.

I think that the plaintiff is not entitled to the relief demanded, for reasons which are intended to be stated by the following;

Aside from the statement of facts which are claimed to be sufficient to constitute a cause of action at law, the gist of the plaintiff’s claim is that the defendant is a corporation organized under the laws of the state of New York, having certain privileges allowed to other similar corporations, and that it discriminates against him in respect to the allowance of entries to races. His demand for relief is in substance that this discrimination should be stopped. As no contractual relation is claimed to exist between the parties, the right to have the relief asked depends upon whether or not the defendant is under a duty to allow all persons against whom it has no reasonable ground for objection to enter horses in its races for stakes and purses, and this question depends for its determination upon the character of the defendant’s duties to the public. It has not been claimed that any duty in the premises was imposed by a specific statutory provision, but it is rather contended that the application of general principles of law and “ a reasoning by analogy from things that are settled in order to establish principles to govern things that are unsettled ” entitle the plaintiff to the relief sought. It has been repeatedly held that railroad, telegraph and telephone companies are quasi public servants. The nature of their business makes them so, and they are, therefore, bound to serve the public on reasonable terms with impartiality. They are almost always endowed with the right to appropriate private property, presumptively upon the theory that such corporations are quasi public servants, as their business is one in which the public has a direct and positive interest.

The plaintiff claims that the defendant should be considered to be under a duty similar to that of the companies referred to. This claim will not meet with sanction here. The defendant is a private corporation. It exercises no franchises which clothe it in the premises with any public duty. It is under no duty to offer stakes or purses, and if in the transaction of its business it has seen fit to offer these as inducements through which to further its business, it is its own way of transacting its own business for its own private ends. It does not appear that it has ever held itself out for public service any more than is done by a bank or an insurance company. It may choose its own customers, and may do or refuse to do any particular business offered it.

With respect to the class of corporations of which those first mentioned form a part, it may be said, that it has long been the policy of our state to encourage the formation of private companies for the construction and maintenance of highways, railroads, canals, bridges, telegraph lines, water works or gas works, by granting valuable franchises or public bounties or both in their aid, and these grants have been of funds or property, the right to receive municipal aid, subscriptions for shares, a delegation of the power of eminent domain, an exemption from taxation or a monopoly, and in each instance the acceptance of the grant of the public aid implies an assumption by the grantee of an obligation-in favor of the public, for instance: on the part of a railroad company, “ an obligation to maintain its roads as a thoroughfare for the use of the public.” In fact it may be laid down as a general rule, that whenever the aid of the government is granted to a private company in the form of a monopoly, or a donation of public property or funds, or a delegation of the power of eminent domain, the grant is subject to an implied condition that the company shall assume an obligation to fulfil the public purpose on account of which the grant was made. ' See Morawetz on Corp., § 1114 and those following.

It is alleged in the complaint that the defendant has granted to it by the state the right to make and register bets and sell pools on the result of its races, and it is argued that this right imposes upon the defendant the fulfilment of a public duty, and that the acceptance of an entry of a horse to a race is one of the public duties which the defendant is obligated to fulfil within reasonable limitations; There is no grant of state aid to the defendant The right to register bets and sell pools exists at common law and is only taken away in this state by statute. The prohibition of the statute is merely removed from these racing associations during certain periods. In allowing the defendant to sell pools there is no more a grant of state aid than there would be to a tavern keeper if certain prohibitions of the excise law were repealed or modified' so as to be more favorable to the seller.

The judgment- must be reversed and judgment rendered in favor of the defendant upon the demurrer, with costs.

Sedgwick, Oh. J., concurs.


author: Sedgwick, Ch. J.

text:
    Jacob F. Miller, Ex’r, Resp’t, v. Robert Campbell, App’lt.

      (New York Superior Court, General Term,

      Filed March 6, 1893.)

    Insurance (life) — Married women — Endowment policy.
    In the case of an endowment policy upon a husband’s life in favor of his wife and children, the wife’s interest is only such as depends on the husband’s death within the endowment period. If the husband survive sucli. period he is the only one interested in or entitled to bring_ an action on said policy, and the wife cannot maintain an action to set aside an assignment made by her to compel the delivery of such policy to her.

      (Brick v. Campbell, 123 N. Y., 338; 33 St. Rep., 520, distinguished.)
    Appeal from judgment entered upon findings and conclusions made by judge at special term.

      George Van Slyck, for app’lt; Jacob F. Miller, for resp’t.
   Sedgwick, Ch. J.

The action was begun on 16th July, 1885. Its ■purpose was to obtain judgment that certain assignments made by the plaintiff’s testatrix, then the plaintiff, of policies of insurance, made for her benefit as a married woman, were void.

The casé has been heard and decided by the court of appeals. Bride v. Campbell, 122 N. Y., 338; 33 St. Rep., 520. In my opinion only one question remains for our decision. One policy in suit, that of the New York Life Insurance Company, made 31st of August, 1872, insured the life of Riley A. Brick, the husband of plaintiff’s testatrix, “for the term of fifteen years, commencing on the 3d day of August, 1872, at noon.” The company promised to. pay the amount of the insurance “to the assured under this policy, to wit: Hannah S., wife of Riley A. Brick, for her sole use, if living, in conformity with the statute, and if not living, to the children of said person whose life is hereby insured, or their guardian for their use, or if there be no such children surviving, then to the executors, administrators or assigns of said person whose life is hereby insured, in sixty days after due notice and satisfactory proof of the death during the continuance of this policy of the said person whose life is hereby insured as above, or if the said person whose life is herely insured shall survive said term of fifteen years from and after the date above mentioned from the commencement of this insurance, the sum above insured shall then be paid, etc., to him.”

On the 7th February, 1892, a. supplemental answer was served, alleging that Riley A. Brick survived said period of fifteen years, and that under and by virtue of the aforesaid provision became entitled to the amount of the insurance, and the interest of the said Hannah S. Brick therein ceased and terminated, and the plaintiff had no interest in, or title to, the said policy of insurance.

There seems to be no doubt that at the end of the fifteen years the husband, Riley S. Brick, then living, was the only one interested in the policy or entitled to bring action upon it, and that the only interest of the wife was such as depended upon the death of the husband within the fifteen years.

The case decided by the court of appeals was such as existed on July 16, 1885, when the complaint was served. At that time the fifteen years had not expired. They expired on 3d August, 1887. The insurance commenced on the 3d August, 1872. Nor at the time of the trial which was reviewed by the court of appeals had the fifteen years expired. The trial was on the 16th and 17th days of June, 1887. The court of appeals had before it, therefore, a case of a policy in which the wife continued to have an interest, and did not have before it a case in which it appeared that the fifteen years had elapsed. They passed upon the facts as they were at the beginning of the action and no supplemental answer having been made.

If the plaintiff's testatrix had no interest in the policy, the judgment should not have directed that the defendant deliver it to the plaintiff, and the judgment should be modified by striking out such direction. The provision in the judgment that the assignment by Mr. Brick is void need not "be disturbed.

Judgment modified as directed in the opinion, and, as modified, affirmed, without costs of appeal to either party.

Dugro and Gildersleeve, JJ., concur.


author: McAdam, J. Per Curiam.

text:
    Fanny M. Peaslee, Resp’t, v. Edward H. Peaslee et al., Ex’rs, Impl’d, App’lts.

      (New York Superior Court, General Term,

      Filed March 6, 1893.)

    Pleading — Motion to strike out — Former decision.
    An order striking out a portion of the original answer, unmodified and unrevoked, is final and conclusive upon the parties on a motion to strike out a similar allegation in an amended answer.
    Appeal from order of the special term, striking out part of the answer.

      Action for the construction of the fourth paragraph of the will of Edmund B. Peaslee, which was as follows:

      Fourth. I give to my daughter, Fanny M. Peaslee, twenty thousand ($20,000) dollars in money or its equivalent in stocks, as my executors may decide, and twenty thousand ($20,000) dollars in trust, the same to revert at her death, if without issue, equally to my wife and son.
    Judgment was asked as to the latter sum; that one-half thereof be determined to vest absolutely in plaintiff, and that defendant Peaslee has a contingent remainder in the remaining $10,000, subject to being divested by the marriage of plaintiff and-her having lawful issue, and also by his death in her lifetime, and that in either case the whole vests absolutely in plaintiE

      Daniel G. Rollins, for resp’t; Arnoux, Ritch & Woodford (William H. Arnoux, of counsel), for app’lts.
   The answer set up that the executors had been directed to pay plaintiff $20,000, and the same was paid; that she had not invested the money, but had, in violation of the judgment, spent the whole principal sum. Said paragraph was, on motion, stricken out; the court delivering the following opinion:

McAdam, J.

The supreme court, in directing the executor to pajr to the plaintiff the first $20,000 mentioned in the will to be coustrued, evidently treated the interest of her brother Edward H. as a “contingent” remainder, for it was not to vest in him unless she died “ without issue.” The event is at least dubious, ■it may or may not happen, and the remainder depending upon it is seemingly contingent, not vested. The provision of the judgment in that action requiring the plaintiff to securely invest the principal for those entitled thereto at her death (if she died without issue), does not militate against this view. The supreme court did not require security as a condition of obedience to the direction to pay over, and could not have properly done so under the terms of the will. Her failure to observe the direction to invest, or any violation thereof, has no relevancy whatever to the question of construction involved here, i. e, whether the plaintiff is entitled to share the second $20,000 with the brother on the same conditions as the first (the mother being now dead). The rule is, that matter which is not material, nor the subject of proof, and cannot affect the decision of the court, is irrelevant, and should be stricken out. Woods v. Morrell, 1 Johns. Ch., 103; Lee B'k v. Kitching, 11 Abb. Pr., 435; Kurtz v. McGure, 5 Duer, 660. The matter objected to in the present instance falls within the practice stated, and the motion to strike it out must be granted, with $10 costs.

Upon the death of the mother a supplemental complaint was served, to which the defendants answered, repeating the paragraph so stricken out of the original answer, and this motion was thereupon made. '

Per Curiam.

The law as declared on the former motion to strike out the paragraph, similar to the one in question here, contained in the answer to the original complaint in this action, is final and conclusive between the parties hereto. The order made on that motion has not been appealed from, and stands unmodified and unrevoked. This application presents no grounds or question that did not exist at the time of the former application, and that was not then as fully within the defendants’ knowledge as now. The motion herein was properly granted.

The order appealed from must be affirmed, with ten dollars costs and disbursements.

Sedgwick, Ch. J., Dugro and Gtldersleeve, JJ., concur.


text:
    Horace B. Fry, Resp’t, v. The Manhattan Trust Co. et al., App’lts.

      (New York Superior Court, General Term,

      Filed March 6, 1893.)

    1. Depositions — Commission—Interrogatories.
    An interroga' ory proposed to be annexed to a commission should not be overruled simply because it appears not to be pertinent at the present time, as plaintiff should be allowed to prepare for a rebutting case, and any question that may become pertinent on the trial should be allowed.
    2. Same.
    It is no objection to an interrogatory that it calls for matters which concern the private business of the witness, or that it calls for such a mass of written testimony that it will be a great burden to the witness to produce.
    Appeal by defendants from an order that denied defendants’ motion to disallow certain direct interrogatories, proposed by plaintiff to be attached to a commission in the taking of testimony in Pennsylvania.

      Bartlett, Wilson & Hayden and Strong & Cadwallader, for app’lts; Leopold Wallach, for resp’t.
   Sedgwick, Ch. J.

A ground taken below and on the present argument was, that under the pleadings the plaintiff would be called upon to prove “ only whether the plaintiff introduced the business described in the complaint to the defendants, as alleged in paragraph XII and whether the defendants agreed to pay the plaintiff $59,000 for his services in introducing said business to them and in connection therewith.”

If we assume that this is correct, and if we omit to consider that the plaintiff may have in his opening case to show declarations of the defendants as to relevant matters, and which might be contained in the answers to the interrogatories objected to, yet all this will not include the right of the plaintiff to prepare for a rebutting case. On the trial it might turn out to be a duty, and the plaintiff could not have relief from the consequences of not being prepared with testimony.

If, as it is reasonable to believe from the statements of the learned counsel for the appellant, there is a conflict of testimony and the credibility of witnesses is involved, the plaintiff is bound to prepare for that emergency and to endeavor to show that the greater weight is with the plaintiff. It is in view of these considerations and of others that in settling interrogatories the court have used the word “ pertinent” There may be combinations of circumstances which convince one that, now or hereafter, a question is not and will not be pertinent. But the general object is not merely to ask, does the question seem pertinent in the present, but also how it would seem upon the trial ? Such is the result of the decision in Uline v. N. Y. C. & H. R. R. R. Co., 79 N. Y., 175. To a great degree the actual pertinency will appear only upon the introduction on the trial of some evidence which then makes the pertinency. A judge settling interrogatories cannot hold that such a contingency will not arise. In the present case the question should not be overruled because it is preposterous to suppose that anything may happen on the trial which will make answer to the question competent as evidence. On the other hand, if plaintiff’s position be correct it is not unlikely that statements in writing and verbal admissions of the defendants, in respect of plaintiff’s relation to the business, may be shown in the answer honorably to the plaintiff. 1

It may be true that the questions call for matters that concern the private business of the witness to be examined. This would not be an objection to the questions if they called for relevant and pertinent testimony. It may also be that the questions call for such a mass of written testimony that it will be a f-great burden to the witness to produce. This is a thing that will not be injurious to the defendants and cannot be a ground of appeal.

Order affirmed, with ten dollars costs.

GrILDERSLEEVE, JV, concurs.