text:
    Edward Arnold, Resp’t, v. Delaware and Hudson Canal Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February, 1887.)

    1. Negligence—Contributory—Railroads—Coupling freight cars— Proper mode.
    It is negligent for a person engaged in coupling freight cars to attempt to reach over the draw-heads ” and raise the “ link,” as he is in danger of being caught between the “ dead-woods” of the cars.
    2. Same—Master and servant.
    • The duty of the master to furnish suitable machinery and to keep it in repair, is not absolute, and is satisfied by the exercise of reasonable care and prudence.
    Appeal from a judgment entered on a verdict in favor of plaintiff in an action to recover damages for injuries received while coupling cars for defendant, and from an order denying' a motion for a new trial on the judge’s minutes.

      J. H. Clute, for resp’t; Edwin Young, for app’lt.
   Learned, P. J.

The plaintiffwas an employee of defendant, and was injured while coupling cars at Schenectady. A train of freight cars had come in from Rutland. How long before does not appear. One of these, an ordinary box car, was standing on a side track. An engine, with three or four cars, was moving back to be coupled to this standing car. Plaintiff was' ordered to make the coupling. He walked down on the right side of the cars that were moving, at the rear end of the rear car, with his face towards the standing car, the cars moving about as fast as he could walk. He walked about the length of a car, and before the cars reached the standing car he stepped in to couple. There was nothing to prevent his seeing the draw-head if he had looked. He did not look until after he had gone in between the cars. On the standing car the bolts on one side, which hold up the hanger, had broken, and the hanger had dropped down on that side. The hanger is the plate "which holds up the draw-head. Here the draw-head also had dropped, so that when the cars came together the draw-head on the standing car passed under that on the moving car, and the dead-woods struck together. The link was in the draw-head of the standing car. The plaintiff with his right hand caught hold of the link and attempted to raise it, but was unable to do so, and then jerked his hand out. But it was caught between the dead-woods and crushed.

(Dead-woods are otherwise called bumpers, or buffers. They are pieces of wood fastened on the end of the sill of the car. And the draw-heads, having a spring connected with them, are between the dead-woods).

When the draw-heads are in place, if any, they project about one and one-half inches beyond the dead-woods; when old, about three-fourths of an inch. The distance between the deadwoods is eleven inches. The dead-woods are eight inches across and ten inches up and down, and project ten inches from the sill of the car. The top of the draw-head is, according to one witness, about two inches below the bottom of the dead-woods; according to another, very near the lower surface of the dead-woods.

According to one witness, if the draw-heads are in place they do not yield enough when one car is standing and another backing slowly to permit the dead-woods to strike together. According to another witness, the dead-woods invariably strike when a coupling is made.

But, whichever of these witnesses is right, it is evident that, inasmuch as the distance between the dead-woods of meeting cars is only three inches, at the most, when the draw-heads touch, it is and must be perilous to put an arm between these dead-woods. If they are sure to approach as near as three inches, and may come together, a man should not put his arm between them.

As to the proper mode of coupling, the plaintiff says that the proper mode is to place one hand under the dead-wood and raise the link and the other over the dead-wood, and drop the link; and he says that either over or under the dead wood is proper. It does not seem that the dropping of the pin exposes to any risk. But it is evident that in attempting to raise the link there might be risk if the attempt was improperly made.

From the outside of the dead-woods to the center of the draw-head, is II inches. And the top of the dead-woods, as a witness testifies, was 3 1-2 feet from the ground — about up to his breast. If, then, a man standing outside of the dead-woods reaches over and down to the link, which is nine or ten inches long, and must project some inches beyond the draw-heads, it is evident that he must have his arm between the dead-woods and cannot keep clear from them. And so it was testified by a witness. And as they are almost certain to come within three inches of each other, and probably much nearer, this act of his would be evidently careless. It is plain that the safe way is to take the link, from below, keeping the arm under the range of the dead-woods. In the present case the plaintiff evidently took the link from above. He endeavored to raise it, but could not;, and did not succeed in withdrawing his arm quickly enough.

The defendant asked for a non-suit on the grounds,, among others, that there was no proof of negligence on defendant’s part. The learned justice in his charge said that the mere fact that there was a defect was not enough unless-it had existed so long that the company was chargeable with notice, or had actual notice.

Now the evidence is simply that this defect was in a car which had been brought in from the north and placed on a side track. We have examined the case and we find no evidence showing how long the defect had existed; nor even how long the car had been in the yard.

The duty of the master to furnish suitable machinery and to keep it in repair, is not absolute, and is satisfied by the exercise of reasonable care and prudence. Probst v. Delamater, 100 N. Y., 272.

There is nothing to the contrary of this in Jones v. N. Y. C. and H. R. R. R. Co. 28 Hun, 364, and 92 N. Y., 628. For in that case it was said that the appearance of the broken ring.(which was shown to the jury) might have given them satisfactory proof that the defect had been of long standing. It was not claimed in that case that the defendants would have been hable without some evidence of negligence other than the mere breaking of the ring. See also, DeGraff v. N. Y. C. and H. R. R. R. Co., 76 N. Y., 131;. Devlin v. Smith, 89 id., 470.

It is claimed by defendant that the learned justice erred, in charging that as a general rule an employer is bound to-find perfect machinery. But we think that this language was afterwards sufficiently qualified so that the jury were-not misled.

It seems to us also that there was contributory negligence on the part of the plaintiff. He says just as soon as-he took hold of the link he saw he could not raise it and tried to jerk his arm out. Now the draw head had dropped only three or four inches. Very evidently then the plaintiff was not obliged to keep his hand there longer than he would have done if he had lifted up and held the link (assuming it to be in its place) until it had entered the other draw head. The dead-woods came together and rebounded and struck together again. Now, the plaintiff’s carelessness was in attempting to reach the link from above, when any compression of the springs of the draw heads would bring the dead-woods nearer than two or three inches, their ordinary distance.

It is evident that an engine and three or four cars can hardly ever be moved so gently back as not to compress the springs of the ¿raw heads. And it was shown that in an ordinary car it was very dangerous to reach over and raise the link; and was impossible to do this without getting between the dead-woods. And as the defect in this car was visible, if the. danger was thereby increased, the plaintiff should have avoided it with more care. Goodrich v. N. Y. C. and H. R. R. R. Co., 22 Weekly Dig., 155; S.C., 3 N. Y. State Rep., 774.

We think the judgment and order should be reversed and a new trial granted, costs to abide the event.

Landon and Mayham, JJ., concur.


source: Caselaw Access Project

author: Learned, P. J.

license: Public Domain

text:
    William C. Travis, Resp’t, v. George E. Smith, impl’d, etc., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February, 1887.)

    Mechanics’ men—When owner cannot refuse to pat—Contract— Breach.
    The owner of land, contracted with a builder to build a house, payments therefor to be made in installments as the work progressed. There was a provision in said contract that the owner should have the right and privilege to retain from the amount of said payment or payments the actual * * amount of the claim or claims for which the lien or liens were filed. Held, that an absolute refusal to pay was not an exercise of the right reserved. That the retention of an installment when due, without the intention of exercising the said right, was a breach of the contract by the owner. That, even if he had exercised that right and privilege, lie-could not justly refuse to pay the holders of the liens as well as the builder.
    Appeal from a judgment entered on the report of a referee in favor of the plaintiff in an action to foreclose a mechanics’ lien against the owner of land.

      J. F. Crawford, for resp’t; Doyle & Fitts, for appl’t.
   Learned, P. J.

This is an action to foreclose a mechanic-s lien against the owner of the land. The defendant, Smith, the owner, contracted in writing with one, Johnson, a builder, September 15, 1881, to build a house ; payment as follows : when the foundation is laid, etc. $200; when the building is enclosed, $500, and so on.

There was a provision that if at any nine any payment should fall due, any mechanic’s lien should have been filed, Smith should “have the right and privilege to retain from the amount of said payment or payments the actual, just and true amount of the claim or claims for which the lien or liens were filed.”

The first payment of $200 had been made. About November 14, 1881, Johnson claimed that the building' was substantially enclosed and demanded the next payment of $500.

On the lJth of November plaintiff filed alien for $393.89, of which $324.02 had been in part furnished. Some other hens were filed before November 23 by other parties and the total exceeded $500.

The referee finds that on the 23d of November the work had been substantially done by Johnson to the extent of enclosing the building, and that the payment of $500 was due from Smith. That Smith then refused to pay the $500, and that then Johnson refused to proceed further.

There is some conflict as to the grounds of Smith’s refusal. As found by the court, at plaintiff’s request, it is that Smith refused on the ground that Johnson intended in case payment was made to abandon the work and liens were filed for more than the amount of payment. The learned judge in a certificate explains that the words : “And hens

were filed for more than the amount of the payment,” form a distinct finding of fact; and were not intended to be stated as a ground on which Smith refused. That the alleged intention of Johnson was the sole ground of Smith’s refusal.

Thé finding of the learned judge will bear that construction.

The learned judge was asked to hold as matter of law that the refusal of Smith to pay the $500 was a breach of the contract; and “refused except as to the payment of valid hens.”

The defendant urges that inasmuch as valid liens over $500 had been filed before November 23, the defendant, Smith, did not break his contract by refusing to pay the $500 ; that, therefore, Johnson broke the contract by refusing to proceed ; that hence Johnson could recover nothing from Smith on the contract; that, therefore, the plaintiff could not enforce his hen against Smith.

The learned judge held that Smith did not break the contract, but held this to be subject to the payment of valid hens; that the abandoment of the contract by Johnson was without excuse; but that this was after the $500 became due.

Now it is clear that the proper decision of this case depends on the meaning to be given to the clause relative to the ight of the owner to retain from payments the amount of hens filed. It is evident that the owner is not to keep this money himself. The clause only means that he may retain it for the purpose of paying the hens and thus protecting himself against having to pay twice. And it must be observed that the clause provides that, at any time any payments shall fall due, Smith may retain. Thus it presupposes that Smith owes a payment on the contract, and is to retain the amount of the lien therefrom. The defendant construes this clause as if it read: When a payment falls due, Smith shall not pay it.

The holders of the liens are, as it were, assignees of the money owing to the contractor. And the owner may rightfully protect himself against these conflicting claims, if they do conflict. Now it appears by the finding of the judge that both Travis, who had filed the principal lien, and Johnson urged Smith to pay the $500. Smith’s own testimony is that Johnson said: “I suppose you are going to make the payment,” and he answered, “I am not; it looks as if you were going to abandon the contract.” And again he says he told Johnson that he declared the contract forfeited. When asked on what he based his refusal to pay, he said, “that it was not completed according to the plans and specifications.” It appears, too, from the testimony of the plaintiff, that he went with Johnson to obtain his money, and that Smith said: “ Johnson, I shan’t make you this payment, or pay you any more money on the building until it is completed. I have reason to believe that if you get this payment you are about to abandon the contract.”

It is apparent that the reason why Smith refused to pay was not on account of the liens, but from his fear that Johnson would abandon. Now, the motive might be of little consequence, if Smith had a right to retain this money. But when we are considering whether he was justified in retaining it, it is important to inquire whether he refused to pay any one, or only refused to pay Johnson. Smith took the ground that he was not liable to pay the installment because the work was not done, or because Johnson intended to abandon. . Both of these positions are found against him by the judge. If, instead, he had said: “I am ready to pay, but I must pay these liens, or retain the money for them,” he would then have done what the contract authorized. Or if he had desired time to investigate as to the validity of the liens, then a different question would have been presented. It is one thing to refuse payment absolutely, and another to be in honest doubt who should receive it. The existence of the liens only made the installment payable to some person other than Johnson. It did not discharge Smith from all liability to anyone.

If we turn to defendant’s answer, we find that his defense is the imperfection of the work and its abandonment by Johnson. And there is no claim that the $500 was retained in pursuance of the clause in the contract. He alleges that the $500 was not due, while the clause in the contract which he now urges is, that when payments shall fall due, he may retain from such payments the amount of liens.

_ The defendant’s present argument is somewhat inconsistent. A payment is due on the contract. He retains it from Johnson because the plaintiff and others have liens exceeding it. And when they endeavor to enforce their liens, he denies his liability to them.

The defendant urges that certain holders of liens made no demand for payment prior to Johnson’s abandonment, and that, therefore, there was no breach of contract by the owner in respect thereto. Now, assuming, as the judge has found, that Johnson had so far done the work that the $500 payment was due, the question is, did Smith break his contract by failing to pay. He must show an excuse. His excuse on this agreement is, that there were liens, and that he had a right and privilege to retain the amount therefor; but he did not assert that right and privilege. On the contrary, as was found at defendant’s request, he based his refusal, on the first two witnesses, upon the ground that the building was not complete up to the point where the payment was due.

The view which we take of this case is not exactly that of the learned judge, though we agree in his result. It seems to us that Smith did break his contract by refusing to pay the $500; that he did not exercise, and did not intend to exercise, the right and privilege of retaining the amount of the liens; that an absolute refusal to pay is not an exercise of that right. And even if he had exercised that right and privilege, he could not justly refuse to pay the holders of the liens as well as Johnson.

Judgment affirmed, with costs.

Landon and Mayham, JJ., concur.


author: Landon, J.

text:
    John Spickerman, Resp’t, v. Adam McChesney, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 22, 1887.)

    Bill of lading—Cannot be varied by paroi agreement.
    The bill of sale in question was absolute and unconditioned and vested-in the plaintiff one-quarter interest in a certain steamboat. The plaintiff proposed to raise from a friend a certain sum to pay the defendant immediately, but did not succeed in doing it, but the evidence failed to show that this failure in any way affected his title or that it was then understood that his title was conditioned upon his raising and paying the money. It was sought many years afterwards to modify said bill by a paroi agreement repugnant thereto. Held, that it could not be done.
    Appeal from a judgment entered upon a report of a referee in favor of the defendant in an action on a bill of sale of a certain steamboat.

      George Waite Tubbs, for resp’t, Albert Smith, of counsel; Smith, Fursman & Cowen, for app’lt, Levi Smith, of counsel.
   Landon, J.

The finding of the referee is supported by the bill of sale made by the defendant to the plaintiff, March 16,1872, of the one-fourth interest in the steamboat.

The defense is that the bill of sale was delivered to the plaintiff to enable him to raise $1,000 upon it to pay upon the purchase money of the one-quarter interest, and that this was not paid.

It is not claimed that it was agreed that if this should not be done, that then this bill of sale should be returned, but it is claimed if it should be done, the plaintiff should have a formal bill of sale, to be then executed. The defendant’s counsel says that this bill of sale was delivered for a merely temporary purpose, but this is a stronger statement than the defendant’s witnesses make.

Assuming the testimony competent to show the purpose for which this bill of sale was delivered, we have the fact that it was given to the plaintiff to enable him to raise $1,000 from a friend to apply upon the purchase money, but we do not have the fact that if he did not raise it the bill of sale was to be returned, or that the sale by defendant to plaintiff of the one-quarter interest was not to be of precisely the character the bill of sale states, absolute and unconditional.

Looking at the transaction in the light of the bill of sale, and of the uncontradicted evidence of the defendant, the fact seems to stand thus: The bill of sale was absolute and unconditional and vested in the plaintiff one-quarter interest in the steamboat. The plaintiff proposed to raise from a friend $1,000 to pay the defendant immediately, but did not succeed in doing it, but the evidence fails to show that this failure in any way affected his title, or that it was then understood that his title was conditional upon his raising and paying $1,000. Of course, if the plaintiff should pay the $1,000 immediately, it would be proper either to indorse the payment upon the bill of sale, or make a new one or give a receipt, and it is not improbable that this was the purpose of the further paper which the defendant thinks was to be a bill of sale.

The referee properly hesitated to set aside a bill of sale made in 1872, and which he was justified in supposing was made to be the perpetual evidence of the actual transaction, and accept in its place the paroi statement of the defendant, which might after all be reconciled with the bill of sale. If either should be rejected as repugnant to the other, the bill of sale should not be.

Judgment affirmed, with costs.

Learned, P. J., concurs; Bookes, J., not voting.


author: Bockes, J

text:
    Mary McGrath, Resp’t, v. Metropolitan Life Insurance Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February, 1887.)

    1. Insurance—Life—Warranty by insured—When question for jury.
    In an action brought to recover the amount of certain policies of life insurance, tlieir payment being resisted on the ground that certain answers-made by the insured in his application as to his previous health were false. Held, that under the circumstances and evidence in this case, it became a question for the jury to say whether there was a breach of warranty made by the assured.
    2. Same—Construction of policy—What is a disease within the WARRANTY.
    „ In construing a policy of life insurance, before any temporary ailment can be called a disease, it must be such as to indicate a vice in the constitution, or be so serious as to have some bearing upon general health and the continuance of life, or such as, according to common understanding, would be called a disease. Following Cushman v. United States Life Insurance Company, 70 FT. Y , 72.
    8. Trial practice—Request to charge—What improper.
    It is not proper to refer to the testimony of a witness, and ask the court to charge that if the jury believe the witness, they must find in a certain, way, or that a certain conclusion follows. Following Dolan v. Delaware and Hudson Canal Company, 71 FT. Y., 285.
    Appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury.

      Arnoux, Bitch & Woodford, for app’lt; Merritt & By an,. for resp’t.
   Bockes, J

This is an appeal by the defendant from a-judgment entered on the verdict of a jury against it for $487.34, with costs, $155.84; in all $643.18.

The action was on three policies of insurance on the life of Mathew McGrath, payable to the plaintiff, his widow.

The defense was fraud in the procurement of the policies, and breach of warranty, because of false statements and answers given in the applications for the insurances, which applications were made part of the contract of insurance, it being provided and declared in such contracts that if the-representations, upon which the policies were granted, were, not true the policy would be void; and, in the applications, the representations and answers therein contained were declared to be warranties to the effect that they were “strictly correct and wholly true;” and that any untrue-answers therein would render the policies null and void. The answers given in the applications, which are claimed as untrue, and therefore constituting a breach of warranty rendering the contract void, were as follow's: “When last. " sick ? ” Answer in the first application, “ 1880,” and in the other two applications, “Never.” “What disease?” Answer in first application, “Cold,” and in the other two, “None.” “Name and address of physician ? ” In the first, “Dr. Ferguson, East Troy,” and in the other two, “None.” And in each application, to the question whether he ever had disease of the kidneys or disease of the liver, the answer was “No;” audit was also stated in each application that the applicant was then of sound health and had not withheld any material fact about his life.

Now, these representations, statements and answers are to be considered as warranties of the facts as represented, stated and made; and the question is whether, under the proof, any of them were, or either of them was shown absolutely untrue, so as to raise a question of law in that regard, requiring a decision of the court favorable to the defendant on the motion for a non-suit. If the evidence touching the subject was indistinct—not absolutely conclusive to the effect that the representations and answers were, or that some one of them was untrue, and yet there was some proof bearing on such questions, the case was for the jury. The learned trial judge held that the case belonged to this latter class; and in this we are of the opinion that he was right. There was some evidence tending to show that the insured had been sick; had been attended by physicians; by Dr. Ferguson, named in the application, and by others occasionally for temporary and slight ailments.

It seems that he had at one time the jaundice—torpid liver—chronic, that is, continuing for a time, and to an extent that was observable, and for which he was treated; but as it also testified to from this ailment he seemed to entirely recover, became a well, robust, rugged man, and attended to his business. The doctor stated that a torpid liver was not necessarily an organic disease, and might arise with any person as a temporary ailment, might, however, become an organic disease. It seems too, that his water was drawn with a catheter, the difficulty doubtless arising from the attack of the jaundice or torpid liver. But as above stated, it was in proof that from this trouble he recovered and became a robust, rugged man. The plaintiff, his widow, testified as to his sickness of 1880. She says he was sick at Port Henry and came home; that he had a severe cold ; was attended by Dr. Ferguson; was able to get around; was not confined to his bed; got a heavy cold and jaundice set in. Without recapitulating the evidence, it must suffice to say, that it was as above given in its general tenor. Under this state of proof, it became a question of fact for the jury on all the evidence, whether a breach of warranty was or was not established,' whether the illness of the assured amounted to a settled disease, or was a mere temporary ailment; such as ordinarily healthy and well persons are subject to, followed usually by immediate recovery, without constitutional impairment. This subject was quite elaborately discussed in Cushman v. U. S. Life Ins. Co. (70 N. Y., 72), where, among other pertinent observations, it is said that “in construing a policy of life insurance it must be generally true that before any temporary ailment can be called a disease, it must be such as to indicate a vice in the constitution, or be so serious as to have some bearing upon general health and the continuance of life, or such as according to common understanding would be called a disease ; and the remarks of the court in Barteau v. Phœnix Mut. Life Ins. Co. (3 N. Y., Sup. Ct. R. T. & C., on page 578), are referred to wibh approval, to which observations attention is invited. This case differs on the facts as regards the question here under examination, from Dwight v. The Ger. Life Ins. Co. (3 N. Y. State Rep., 115), lately decided in the court of appeals, in this, that there the fact constituting the breach of warranty was clear, specific and undisputed, and thus was presented a question of law on a given fact ; here the fact or facts are made to depend on conclusions to be derived from due consideration and construction of evidence, consisting of a variety of circumstances, admitting of different and opposite conclusions, accordingly as it should be given importance and effect.

Then taking into consideration the symptoms and nature of the illness, how induced or contracted, its duration, with complete or partial recovery—-and, indeed, a,11 the many circumstances bearing upon the subject, brought out by the proof, it was for the jury to determine whether, prior to the. obtaining of the insurance, the assured had upon him more or other than that which should be deemed a mere temporary ailment. This conclusion also, as we think, applies in principle to all the several subjects urged as constituting breaches of warranty; that is, we conclude that under the proof it became a question for the jury whether there was or was not, in point of fact, in view of all the circumstances surrounding the case, any really untruthful representation, statement or answer given by the assured, connected with and affecting the contracts of insurance, or either of them.

The defendant’s counsel requested the court to charge the jury, that if they believed the statements of certain of the witnesses (naming them), they should find that the assured was afflicted with disease prior to his application for insurance; and as to one of the witnesses, if the jury should believe his testimony, then the assured was shown to have been afflicted with a sickness within the meaning of the contract. The requests were refused and exceptions duly entered. In this refusal there was no error. Dolan v. Del. and Hud. C. Co., 71 N. Y., 285. Such instruction, if followed, would conclude the jury from construing the evidence and determining what facts it did establish. Our conclusion is, that the judgment and order appealed from should be affirmed.

Judgment and order affirmed, with costs.

Learned, P. J., andLANDON, J., concur.


text:
    Abram V. Morris, Resp’t, v. Francis A. Fales, Impleaded, etc., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 27, 1887.)

    1. Mortgage—Right of mortgagee to realize on other securities— Assignment for benefit of creditors.
    The plaintiff held two notes of defendant’s assignors, one for $5,000, indorsed and secured by a preference in their general assignment and one for $4,000 note here in suit, not so secured, but both notes were secured by the assignor’s mortgage herein sought to be foreclosed to the extent of $6,000. Held, the plaintiff had the right to use these two securities to his best advantage, if the superior equities of third parties did not prevent; that he could not be compelled to foreclose this mortgage until he had realized all he could upon the $5,000 note under the preference given it in the assignment so as to bring the balance secured by said mortgage within the limit fixed by it.
    3. Assignment for benefit of creditor—Right of assignee and mortgagee.
    The assignees could have paid the $6,000 secured by the mortgage and have thereby satisfied it. They did not attempt to do this, but voluntarily paid and applied $5,000 upon the note preferred by the assignment. Held, that the payment did not extinguish the mortgage to that extent.
    8. Same—When mortgagee bound.
    The plaintiff may take that which is his due without liability to be bound by a contract which the assignee made with a third party.
    Appeal from a judgment of foreclosure and sale, entered upon'the decision of the court.
    The action was brought to foreclose a mortgage, dated ¡November 28, 1883, given to the plaintiff by the defendants Clark and Kline, upon their “Brewery lot,” to secure the plaintiff “for moneys loaned and paid by said Morris (pl’ff), and upon certain notes and obligations held or endorsed by Morris, but made by Clark and Kline, * * * the security to extend to and include any and all notes, etc. Provided, however, that said liabilities shall at no time exceed $6,000, exclusive of costs and expenses, and to the extent of $6,000 this conveyance shall be a continuing security for any amount that may at any time be due said Morris,” etc.

      Two days before this mortgage was given, Clark and Kline gave the plaintiff their promissory note for $4,000, at three months. The plaintiff, by this action of foreclosure, sought to collect said note.
    The defendant, Pales, who was a subsequent purchaser of the mortgaged premises, defended, and showed the following facts:
    On the 12th of March, 1883, Clark and Kline gave the plaintiff a mortgage upon other property, known as the mill property, for $16,000, to secure plaintiff as their endorser, and plaintiff thereafter endorsed Clark and Kline’s notes to the amount of $14,500. Plaintiff in addition loaned Clark and Kline $5,000 upon their note for that sum, dated August 27, 1883, indorsed by Maria McDonald. This note became due November 30, 1883.
    On the 3d day of December, 1883, Clark and Kline made a general assignment, for the benefit of their creditors, of all their property, to Hunnan and Crane, who accepted the trust.
    On the 6th of March, 1884, the general assignees negotiated with the defendant, Pales, for the sale by them to him of the real estate of Clark and Kline, covered by the two mortgages aforesaid, and also incumbered by other mortgages, for the sum of $35,000, subject to the last mentioned mortgages, but upon the agreement of the assignees that the $16,000, and the continuing security mortgage to the plaintiff, should be paid and satisfied by them out of the $35,000 purchase money.
    The assignees gave Pales a deed of the two properties, March 8, 1884, in pursuance of such negotiations, and Pales paid them the $35,000.
    The plaintiff was notified half an hour after the deed was given of the terms of the agreement between the assignees and Pales.
    On the following day one of the assignees paid to the plaintiff the amount of the $5,000 note indorsed by Maria McDonald, but did not pay the $4,000 note for which the mortgage is now sought to be foreclosed. All the notes indorsed by the plaintiff for Clark and Kline were paid by the assignees. The defendant, Pales, contends that the $5,000 payment should be applied in reduction of the $6,000 limit of the mortgage in suit. The plaintiff contends that that payment reduced the balance due to him from Clark and Kline to the $4,000 note which he now seeks to enforce. The trial court so held.

      E. F. Bullard, for app’lt; M. L. Stover, for resp’t.
   Landon, J.

When Clark and Kline failed the plaintiff held their two notes, one for $5,000, indorsed by Maria McDonald and secured by a preference in the general assignment, and the §4,000 note here in suit not so secured. But both notes were secured by the mortgage now sought to be foreclosed to the extent of $6,000.

The plaintiff had the right to use these two securities to his best advantage, if the superior equities of third parties did not prevent. Certainly he could not be compelled to foreclose this mortgage until he had realized all he could upon the $5,000 note under the preference given it in the assignment, so as to bring the balance secured by this mortgage within the $6,000 limit fixed by it.

It is true the assignees could have paid the $6,000 secured by the mortgage and have thereby satisfied it. But they did not attempt to do this, but voluntarily paid and applied $5,000 upon the note preferred by the assignment.

Whether their assets would justify their payment to the plaintiff of the $5,000 in full was a matter for them to determine as between themselves and the plaintiff, and which we are not called upon by the assignees to ascertain.

They failed to keep their agreement with Fales to procure the discharge of this mortgage, but the plaintiff aid not become their surety for their performance. For aught that we know, the remedy of Fales is complete against them without compelling the plaintiff to apply the money he received from the assignees to any other purpose than they applied it.

The $5,000 note was in the second class of preferred claims. After paying all of these claims, it appears that the assignees had in their hands $1,146 in money and $3,500 of claims in litigation. It is not clear that Fales may not compel them to protect him against this mortgage without exposing them to personal loss.

But the case is still stronger for the plaintiff. He held the $16,000 mortgage to protect himself against his indorsements for Clark and Kline. He had been paid the $14,500 of notes which he had indorsed for them. The $5'000 note had been discounted by him at his own bank, but he had indorsed it and procured its re-discount at another bank; this note fell due November 30, 1883, and Clark and Kline gave to the plaintiff a new note with Maria McDonald’s indorsement, and thereupon the plaintiff paid the first note. It is not probable that the $16,000 mortgage was in terms security for this note, but the plaintiff claimed it was, and refused to satisfy it until the balance claimed by him to be unpaid upon it should be paid, and when it was paid by paying the $5,000 note he satisfied the $16,000 mortgage. The assignees were thus enabled to make good to Fales that part of their agreement whereby they undertook to procure the satisfaction of both mortgages held by plaintiff. They recognized the force of the plaintiff’s position with respect to the $16,000 mortgage and accepted the terms proposed by him for its satisfaction. Suppose he did demand more than he could maintain by litigation. His demand was-voluntarily complied with by the assignees, and thus a doubtful claim was adjusted and the land freed from the record of an incumbrance.

The defendant claims that the payment of either of the two notes by the assignees extinguished the mortgage to the extent of the payments. But the mortgage was by its terms a continuing security for any amount that may at any time be due upon any or all notes, or renewals of them, to the amount of $6,000.

The defendant concedes that if Clark and Kline had not failed and had made payments upon either note, the mortgage would have been good for any balance not exceeding $6,000. The assignees stand in Clark and Kline’s shoes, and may voluntarily pay upon either note, subject to correction, if they improperly impair the rights of other creditors of their assignors. And the plaintiff may take that which is his due, without liability to be bound by a contract which the assignees made with Bales.

The difficulty with Bales’ case is, he relied upon the assignees’ representation that they would procure Morris to satisfy both mortgages, when the fact was that Morris was determined that he would not satisfy both unless both were paid to the extent that he claimed they were valuable. It was not convenient for the assignees to pay at that time both in full, and they procured one to be satisfied, and probably hoped to be able soon to satisfy the other, but have not yet found it convenient.

The judgment should be affirmed, with costs.

Learned, P. J., and Bockes, J., concur.


text:
    John M. Bouck, App’lt, v. George M. Gleason, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed February, 1887.)

    1. Evidence—Bills and notes—What admissible as part of the transaction.
    On the trial of an action to recover on a note from defendant as endorser, the defendant, a witness on his own behalf, testified that a certain guaranty was not on the note when he signed it. He was asked: “ State what Beardslee (the maker) requested of you when he brought you the note.” Reid, the answer was only proper as a part of the transaction, as showing defendant’s attention was called to the matter at the time, and as negativing any authority to make any other contract.
    3. Same—What amounts to an admission—Consideration for promise.
    If defendant stated to plaintiff: “ Have you that promissory note; I will pay it; I really wouldn’t want to swear the guaranty was not there,” it did not amount to an admission, and as a promise to pay was without consideration.

      Appeal from a judgment entered upon a Verdict in favor of defendant, and from an order denying a new trial.

      E. H. Neary, for app’lt; Conger & Gleason, for resp’t.
   Learned, P. J.

The only question at issue is whether the guaranty, which now appears on the hack of the note, was there when defendant endorsed it. The verdict of the jury in defendant’s favor should be conclusive, unless there were errors requiring a reversal.

The defendant, a witness on his own behalf, testified that the guaranty was not on the note when he signed it. He was asked: “State what Beardslee (the maker) requested of you when he brought you the note ? ”

Of course what Beardslee said did not alter defendant’s liability. The answer was only proper as a part of the transaction; as showing defendant’s attention was called to the matter at the time and as negativing any authority to make any other contract. It showed the agreement under which he put his name on the note.

Defendant’s written admission of service of summons and complaint was properly excluded. It had nothing to do with the case.

The evidence of Conger, that plaintiff had applied to him as to the form of a guaranty, was not objected to.

The subsequent question, “State the time,” etc., was objected to as immaterial and that plaintiff’s answer on cross-examination was conclusive. The plaintiff had testified to the time of this conversation apparently without objection. The witness answered the question: “About the time I heard of the non-protesting this note.” This answer was immaterial, and the witness could not give the date.

The plaintiff asked the court to charge that if the defendant, on July 14, 1880, promised to pay the note, as stated by plaintiff, and the defendant knowing the facts, then he is liable. The court charged that this was a question for the jury to consider. The plaintiff had testified that on July 14, 1880, defendant said to him: “Bouck, have you that promissory note; I will pay it. I really wouldn’t want to swear the guaranty was not there.” This the defendant denied.

The testimony of plaintiff did not show an admission of the defendant, even if taken as true. Nor was this a case of ratification. No one has written this guaranty claiming to act as defendant’s agent or partner. The guaranty was either there when defendant signed or else it was wrongfully put on afterwards.

Defendant’s promise to pay, assuming plaintiff’s testimony to be correct, was a mere voluntary promise without any consideration whatever. It was evidence for the jury to consider.

We have not only examined the exceptions taken by the plaintiff, but we have examined the whole case, and we see no reason to believe it was not properly disposed of. There was some conflict of evidence. That was for the jury to pass upon. They had the witnesses before them and the note also, which has been produced before us. Possibly the appearance of the witnesses and of the note itself might have had some influence on the jury.Judgment and order affirmed with costs.

Landon and Mayham, JJ., concur.


text:
    Josephine Decatur, Ex’rx, etc., Resp’t, v. John E. Goodrich, Appl’t.

      (Supreme Court, General Term, Third Department,

      Filed February, 1887.)

    1. Arrest—Order of—Agent when liable to under Code Civ. Pro., §549.
    There must be shown some violation of the trust, some wrong-doing on the part of the defendant, more than the mere non-payment of money received, even though it was received by an agent, to give a right of arrest under Code of Civil Procedure, § 549.
    2. Same—When complaint contains other causes of action.
    When the complaint contains any cause of action for which the defendant cannot be arrested, the order cannot stand.
    Appeal from an order of arrest.

      A. T. Clearwater, for resp’t; Wm. Lounsbery, for app’lt.
   Learned, P. J.

The Code of Civil Procedure, § 549, as now amended, Laws 1886, chap. 672, says a defendant may be arrested where an action is brought to recover for money received where it is alleged in the complaint that the money was received “by a factor, agent, broker or other person “in a fiduciary capacity.” Plainly the words, “in a fiduciary capacity,” qualify all the persons described. A factor might borrow money. He would not be liable for arrest for not paying it. It is for money received in a a fiduciary capacity that the defendant may be arrested.

Section 550 now contains nothing on this point. If this complaint contains any cause of action for which the defendant cannot be arrested, the order cannot stand. Madge v. Puig, 71 N. Y., 608.

The second allegation is, that the defendant as agent of the testator became possessed of a large sum of money belonging to said testator. Then follows an allegation that after deducting all credits and commissions there remains due to plaintiff as executor on account of all the matters alleged the sum of $3,100, which defendant refuses to pay, after the same has been demanded.

Is the statement that defendant as agent of the testator became possessed of a sum of money sufficient under section 549? As that section gives a right to arrest “for money received, ” without requiring proof of embezzlement or fraudulent application, it seems necessary to understand that the money must have been received upon some trust or duty in some fiduciary capacity—more than is implied by the word agent. A man sometimes carries on a business as the agent for another, buying and selling as freely as if the matter was his own. We cannot think that every such case of agency renders the agent liable to arrest for all moneys received. See Walter v. Bennett, 16 N. Y., 250; Greentree v. Rosenstock, 61 id., 583.

In this latter case, the allegations of the complaint were much stronger than those we have cited from the present complaint. There must then be shown some violation of the trust; some wrong doing on the part of the defendant, more than the mere non-payment of money received, even though it was received by an agent.

In the case of Stoll v. King (8 How., 298), a clear distinction is drawn. The judge says : “I think the criterion in every such case is to determine whether the specific moneys received ought in good faith to have been paid over to the employer, or whether the defendant upon receiving such moneys had the right to use them as his own, holding himself accountable to his principal for the debt thus created.”

We think, therefore, that this part of the complaint was not enough to authorize an arrest; while we will not say that the first allegation might not have been sufficient if it had stood alone.

Without passing upon the other questions, we are of opinion that the order appealed from should be reversed and the order of arrest vacated, but without costs.

Landon and Mayham, JJ., concur.


text:
    Congress and Empire Spring Company, App’lt, v. Village of Saratoga Springs, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed February, 1887.)

    Municipal corporations—Sewer—When liable for insufficiency.
    The defendant had constructed a sewer of more than sufficient capacity for all ordin try occasions; the defendant had never been notified by the occurrence of an accident that the sewer was insufficient; if it proved insufficient only for an extraordinary freshet not to be expected, then no blame can be attached to the defendant. Cases discussed.
    Appeal from a judgment dismissing the complaint.

      John T. Carr, for app’lt; John L. Henning, for resp’t.
   Learned, P. J.

Upon the doctrine of Mills v. Brooklyn (32 N. Y., 489); Hines v. Lockport (50 N. Y., 236); Lynch v. Mayor, etc. (76. N. Y., 60), and Urquhart v. Ogdensburgh (91 N. Y., 67, and S. C., 97 N. Y., 238), we should have no doubt of the correctness of this judgment.

But since the decision in this case Seifert v. Brooklyn (101 N. Y., 136), has been decided and reported. And the-views there stated render it necessary to inquire how they apply to the facts before us.

It is very truly said in the opinion in that case that “the-cases on the subject are by no means harmonious ; ” a remark which may be illustrated by a comparison of the two-decisions in Urquhart v. Ogdensburgh, above cited.

In the Seifert case the facts stated are that the sewer was-built in 1868. A short time after its constrtiction actual use as the court say demonstrated that the sewer had not-sufficient capacity to carry off the accumulations of water and matter turned into it; and that at times of heavy rain or snow the collected sewage being obstructed was forced-through man-holes and inundated plaintiff’s property. These inundations commenced ten years prior to the trial, and increased in severity and frequency. How long before-the commencement of the action is not stated. From the report of the case in 15 Abb., N. 0. 97, it would seem that-these inundations had occurred for six years before the-action was commenced. Yet the corporation continued to build and attach lateral sewers, and thus increase the evil.

It does not appear whether the court held the defendanthable for the original defect of the sewer in being insufficient ; or for the adding lateral sewers after actual proof of such insufficiency But in the report of the case at general term it is stated that the sewer was originally of sufficient size. While the court of appeals imply in their opinion that it was originally insufficient.

In one place the opinion of the court of appeals states that the corporation is hable after notice and an omission to remedy the defect. It also says that the corporation was liable for the defects of the sewer, on the principle of Noonan v. Albany (79 N. Y., 470).

Now in the present case we have a sewer constructed in 1875 ; sufficient, as is found, to carry all ordinary sewage, including surface water ; such ordinary flow including surface water being less than one-sixth of the capacity of the sewer. It can hardly be said then that there was a defect-in the construction ; certainly not such a defect as the defendant could by any skill discover.

Owing to the construction of lateral sewers, intercepting-surface water, less surface water has been carried into the-vicinity of plaintiff’s property than was formerly so carried,. but the surface water accumulated more rapidly than formerly.

In June, 1882, there was an extraordinary freshet, greater than ever known by persons then living. As a result, the sewer and the old brook were filled to their utmost capacity, and streets in plaintiff’s vicinity were submerged. The water from the streets found its way to plaintiff’s property. The pressure in the sewer kept back the water in the eighteen-inch pipe by which plaintiffs had connected their artificial lake with the sewer; the lake was raised some two feet, and the water therefrom and from the adjacent high ground of plaintiff ran on plaintiff’s grounds and into the basement of plaintiff’s building. The water was contaminated with sewage filth, which, as the water subsided, remained and injured the grounds of plaintiff Another similar, but less violent, freshet took place the same month. There is no evidence of any other.

Much of the damage, it will be seen, came from the backing of the water in the sewer through plaintiff’s eighteen-inch pipe, made for the discharge of water from plaintiff’s artificial lake, and voluntarialy connected by plaintiff with this sewer. Very possibly if there had been no such lake, but only drains to carry off the water of the swampy land, much of the injury would not have happened. Searing v. Saratoga Springs, 39 Hun, 307.

This action was commenced soon after these freshets. ■ There are many respects then in which this case differs from that of Seifert. The sewer was of abundant size. No repeated occurences had shown a defect. It does not appear that the action of the lateral sewers had shown the insufficiency of the main sewer. Indeed it would appear that the lateral sewers, or some of them, had cut off the water which would otherwise have passed down by the plaintiff’s premises. The immediate cause of plaintiff’s damage was the extraordinary freshet.

We think then that this case is quite different from that of Seifert. We cannot say that there was a defect in a sewer which had capacity to carry six times the ordinary sewage and surface water. Actual use had shown no defect; nor had the lateral sewers rendered the main sewer insufficient. The defendant had had no notice of any defect. And it is difficult to know what remedy the defendant ought to have adopted, which would guard against an extraordinary freshet. Sprague v. Worcester, 13 Gray (Mass.). 193.

If the defendant had constructed a sewer of more than sufficient capacity for all ordinary occasions; if the defendant had never been notified by the occurance of an accident that the sewer was insufficient; if it proved insufficient only for an extraordinary freshet riot to be expected, then no blame can attach to the defendant. And the defendant is hable only for some negligent or wrongful act.

Whether or not liability might arise if repeated inundations should show the insufficiency of the sewer, we need not inquire.

Judgment affirmed, with costs.

Mayham, J., concurs; Land on, J., not acting.


text:
    Robert Johnson, Resp’t, v. Hugh Kelly et al., Appl'ts, and two other cases against the same defendants.

      (Supreme Court, General Term, Third Department,

      Filed February, 1887.)

    Assignment for benefit of creditors—Preference of laborers—Laws 1884, chapter 328.
    The omission to prefer laborers in an assignment for the benefit of creditors, does not invalidate the assignment under Laws 1884, chapter 328, and is not an evidence of intent to defraud.
    Appeal from a judgment setting aside an assignment for the benefit of creditors as fraudulent.
   Learned, P. J.

Each of these actions is brought to set aside a general assignment, made by Kelly, on the ground that the assignment does not, in its terms, prefer laborers; the plaintiffs claiming that for this reason it is fraudulent and void.

The -statute, laws 1884, chapter 328, was evidently enacted for the benefit of laborers. It intended, in the case of an insolvent debtor, that the laborers whom he owed, (who usually have small claims for which they cannot litigate), should be always protected. It is a humane statute and its objects should be carried out as far as possible.

The plaintiffs claim that the statute requires the assignor to insert in the assignment a clause preferring laborers and that a failure to do this makes the assignment void.

The defendants claim that whether such clause be in the assignment or not, the duty of the assignee under the statute is the same, viz., to pay all laborers first.

If the plaintiff’s construction is correct then, in case assignor fails to insert such a clause, the laborers lose all the benefit of the statute. Because, if the assignment be set aside, the laborers can obtain no preference, since there will be no assignment. And the person benefited by the action to set it aside will be the vigilant creditor. This will seldom be a laborer, whose little claim could not generally bear the expense of such litigation. It would be necessary for every laborer to recover a judgment on his demand and then to bring or to join in an action to set aside the assignment on the ground of the omitting a clause of preference. And after all this were done, even if the laborers were the vigilant creditors, they would have only gained what, upon the other construction of the statute, they would have without action.

• For, if the defendants’ construction is correct, no neglect of the assignor to prefer these laborers can take away their rights. They are preferred by the statute. The assignee must first pay them, just as an executor must first, pay debts of the testator, although not required to do so by the will.

It is, therefore, evident that the defendants’ construction always carries out and the plaintiff’s often defeats the humane intention of the statute.

Is there any difficulty in giving this construction ? The statute says, “In all assignments,” etc. The plaintiffs construe these words as referring to the instrument itself. But it is equally sound to construe them as referring to the whole transaction, as if the language were, “In the case of all assignments,” etc. This meaning is made more distinct in the statute of 1886, chap. 283: “ In all distributions of assets under all assignments made,” etc.

The plaintiffs urge that the whole duty of the assignee must be found in the assignment. There is a certain half truth in that statement. The court cannot, from its own views of what the assignor ought to have done, change the duty which he has put on the assignee. But the legislature has put, as it lawfully might, certain restrictions about the matter of general assignments, and they are, as it were,' bankruptcy proceedings. The legislature has required the assignee to do several things which are not mentioned in the written assignment. We see no reason why it may not require him first to pay the laborers.

The plaintiffs do not claim that the legislature could not impose this obligation on the assignor to prefer laborers. If that can be done we see no reason why the legislature may not make the preference of laborers in the distribution of assets, a condition upon which alone the assignor may make a general assignment.

There is another view. This construction of the defendants’ sustains the assignment as valid. There is no charge that it was intentionally fraudulent, and, therefore, it should be supported if possible. The plaintiffs, it is true, assert that the omission to prefer the laborers is evidence of an intent to defraud them. But if the assignor knew that they were preferred by the statute, and that such preference was beyond his control, his omission to prefer them in the assignment showed no intent to defraud. A testator does not intend to defraud his creditors when he gives all his estate in devises and bequests and says nothing of his debts. He knows that the law provides for them.

The conclusion to which we have come is that of the first department in Richardson v. Herron (39 Hun, 537); and of the fifth department in Burley v. Hartson (40 Hun, 121).

In the case of Harriet v. Masterson, of which a brief statement appears in 1 N. Y. State Rep., 245, the assignment was set aside as made with fraudulent intent. The question here involved is not discussed, it is only briefly mentioned, so that we have no decision of the second department on the point.

The judgment should be reversed, and, as there can be nothing gained by a new trial, judgment for defendants must be rendered, with costs here and in the court below.

Landón and Mayham, JJ., concur.


text:
    Matter of the Probate of the Last Will and Testament of Clara B. Hopkins, deceased.

      (Supreme Court, General Term, Third Department,

      Filed February 22, 1887.)

    1. Will—Probate—When refused.
    The decedent, at the time of the making of the instrument offered as her will, was so weak that she could not speak or sign her name, and died the next day. She had, when well, expressed a determination not to make a will. Scott, who was one of the principal beneficiaries thereunder, had no especial place in her affections superior to her other next of kin, but went to her house three days before her death for the purpose of procuring her to make her will. He repeated her directions to the scrivener, and was present while the instrument was read over and executed. When she was asked if she acknowledged the mark made for her to be her signature, she replied she did not know whether she did or not. Held, that probate was properly refused.
    2. Evidence—Competency—Code Civ. Pro., §§ 829, 2544.
    The decedent whispered directions as to her alleged will to one Scott, who repeated them aloud to the draughtsman, who then wrote them in the instrument. When it was completed, the draughtsman read it over to decedent, Scott being present at the time. Scott was the proposer of the will, and one of the principal beneficiaries thereunder. Held, he was not a competent witness to prove whether the will was read to decedent, etc., under Code of Civil Procedure, section 829, and that section 2544 does not touch the question.
    Appeal from a decree of a surrogate refusing to admit an instrument- propounded as the will of decedent to probate.

      W. H. Sawyer, for app’lts; Leslie W. Russell, George M. Gleason, D. Magone, for contestants, Leslie W. Russell, of counsel.
   Landon, J.

The instrument proposed for probate, as the will of Mrs. Hopkins, was executed on the evening of Wednesday. She died on the afternoon of the following day. She was about seventy years of age, and had been gradually failing for some time. She was not suffering from any acute disease, but died apparently from the general decay of her powers. Aside from her extreme feebleness, the evidence, though disclosing some eccentricities of conduct, would not establish testamentary incapacity.

If we could assume that the instrument was the voluntary expression of her wishes as to the disposition of her property, we should not attach much weight to the objections to the formality of its execution.

The real difficulty is, that the testimony is such as to incline the mind gravely to doubt whether Mrs. Hopkins •did not, in her extreme weakness, find herself unable to do otherwise than submit to the suggestions and follow the lead of Mr. Scott, the proposer of the instrument, and one of the principal beneficiaries under it. Mrs. Hopkins had no descendants, but had a brother and sister living, and also the children of one brother and two deceased sisters. Hone of these had resided with her. Mr. Scott was the son of a •sister still living. It does not appear that he had any place in her affection superior to her other next of kin. He came to her house on Tuesday manifestly for the purpose of procuring her to make her will, succeeded in procuring her assent, although her intention when in health had been expressed to the effect that the law would dispose of her property to her satisfaction. A Mr. Townsley was then procured as a draughtsman. He testified in substance that he did not understand a word she said; that he sat at a table about twelve feet away from Mrs. Hopkins; that Mr. Scott conversed with her and acted as the interpreter between her and him of her communications to Mr. Scott of the dispositions she desired to make by her will. These communications were mostly inaudible to Mr. Townsley and utterly unintelligible to him. Her voice was like a whisper. Mr. Townsley did not write anything in the instrument except these directions thus obtained through Mr. Scott. When the instrument was completed, Mr. Townsley read it over to Mrs. Hopkins. She commenced to sign her name to it, but was too feeble to proceed, and -allowed a mark to be made for her signature. She was then asked if she acknowledged that to be her signature, and she replied she did not know whether she did or not. Possibly she felt humiliated because she could not write her name. Possibly, also, this was her last attempt to express her real state of mind. She was than asked the usual questions respecting such an instrument, and she signified her assent. One of the subscribing witnesses testified: I think she did not care how the will was.” It is quite probable that this expression characterizes truly her actual feeling. Mr. Scott seems to have taken possession of her, in her very feeble condition of body and mind, when she had neither the strength nor will to oppose his suggestions, or to advance any of her own. It is probable she understood what he said to the scrivener, but it is by no means clear that she had the courage or strength to oppose anything he said. She probably would have made no will except upon his importunity. She plainly could at this time have made none that he did not approve. We have no evidence other than that derived from her signature, and assent given as above stated, that Mr. Scott truly gave her directions to the scrivener, and there is some evidence-suggesting the thought that he gave some which he did not receive from her.

We think the surrogate did right in refusing probate to this instrument.

Mr. Scott offered himself as a witness, and was asked if he heard Mr. Townsley read the will to Mrs. Hopkins, and other questions of like import.

The surrogate sustained the objection, that under section 829 of the Code of Civil Procedure he could not give the testimony the questions called for. There was no'error in this ruling.

The testimony offered was concerning a personal transaction and communication between Mr. Scott and Mrs. Hopkins. The part which he took in the making of this will, as above referred to, had already been shown by the witnesses produced by himself. He was not asked, and therefore we assume did not desire to change in any way the version already given of the part thus taken by him. He was the self constituted interpreter between Mrs. Hopkins and the scrivener. The scrivener had written what-Scott told him to write, and nothing more. Though the scrivener did the reading, he simply read Scott’s assumed translation of her whisperings to him. Thus in reading the instrument to Mrs. Hopkins, Mr. -Townsley was the medium through whom Scott communicated to her his report to Townsley. True, it was not done by his voice, but was done in his presence and presumably at his instance, and thus falls within the spirit of section 829. Certainly it was part and parcel of the transaction between himself and the deceased.

Section 2544 does not touch this question. That section provides that “a person is not disqualified or excused from testifying respecting the execution of a will, by a provision therein, whether it (the provision) is beneficial to him or not.” This section removes whatever disqualification such a provision in a will creates, but does not remove, for it-does not include, the disqualification attaching to the testimany of a party concerning his personal transactions or communications with the deceased.

The decree of the surrogate should be affirmed, with costs, against the appellant.

Learned, P. J., concurs; Bockes, J., dissents.


text:
    Horace J. Allen v. George C. Clarke.

      (Supreme Court, General Term, Third Department,

      Filed February, 1887.)

    1. Corporations—Liability of trustees—Laws 1848, chap. 40, § 13 as AMENDED, BY LAWS, 1875, CHAP. 510.
    A judgment for costs against a corporation in an action for trespass commenced by it is not such a debt of the corporation as a trustee is liable for, on the ground of failure to make a report as required by Laws 1848, chap. 40, section 13, as amended by Laws 1875, chap. 510.
    3. Same—Does not extend to judgment for costs against corporation.
    The liability of a trustee is limited to such debts as are “ contracted *' by the company, and a judgment for costs can in no accurate sense be said to be a debt contracted by the company.

      E. H. Neary, for app’lt; L. Hasbrouck, for resp’t.
   Learned, P. J.

The single question presented by this appeal is whether a judgment for costs against a corporation, in an action for trespass commenced by it is such a debt of the corporation that the defendant, a trustee, is liable therefor, on the ground of the failure to make the report required by the twelfth section, chapter 40, Laws 1848, as amended by chapter 510, Laws of 1875.

The judgment was recovered September 21, 1885. The failure to make the report was in January, 1884, 1885 and 1886. The last is evidently the only one material.

The judgment was in January, 1886, an existing debt, and if a report had been made should have been included therein as such. But the liability expressed is “for the debts of the company then existing, and for all that sha.1T be contracted before such report shall be made.” These words, “shall be contracted,” explain the words “existing debt,” and limit them to such debts as the corporation has contracted. In no accurate sense can the corporation be said to have contracted this judgment for costs, although a judgment is sometimes spoken of as a contract.

The case of Miller v. White (50 N. Y., 137) seems decisive of this case. In that case it was held that the judgment against the corporation was not even prima facie evidence of the debt against a trustee in an action like the present. It was held to be necessary, therefore, to prove the debt by evidence other than the judgment. To do that would be impossible in this case. There was no debt prior to the entry of the judgment. Ho proof could be given (other than the judgment) of any debt of the corporation, because no such debt existed prior to the judgment. And if the judgment is not even prima facie evidence, then no evidence can be given. And for a very good reason, viz., that the corporation owed no debt until the entry of the judgment made it a debtor.

The spirit of the statute does not embrace this case.

The interlocutory judgment is affirmed, with costs.

Mayham, J., concurs; Landon, J., concurs on first ground.


author: Per Curiam.

text:
    People of the State of New York, App’lts, v. Michael Kurtz, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed February 1887.)

    Practice—Reargijment.
    Where on appeal by the people to the court of appeals from an order of the general term reversing a conviction for a criminal offense, the court, on defendant’s motion, dismissed the appeal,.unless the people should procure a modification of the order of reversal, and remitted the return to this court for that purpose, and the people applied for and obtained a modification of this court’s order, giving a fuller statement of their action. On a motion by the people for a reargument in this court; Held, not a proper case, under the circumstances, for a reargument. See S. C., 3 N. Y. State Rep., 715.
   Per Curiam.

When this cause was argued before us we reversed the conviction and judgment. Our reasons were given in an opinion. The people appealed to the court of appeals. That court, on defendant’s motion, has made an order dismissing the appeal, unless the people shall procure a modification of the order of reversal, and remitting the return to this court for that purpose.

It does not appear in that order on what ground the appeal was dismissed. And that court has often said (and recently in People v. Boas, 92 N. Y., 563), that it cannot look to the opinion to learn the grounds of an order or judgment. Hence we are not informed (since the order is silent in that respect) on What grounds the court of appeals dismissed this appeal.

The people have applied for and have obtained a modification of our order, giving a fuller statement of our action.

The people now ask that this cause be re-argued in this court, in order that the court may say whether it is satisfied that the verdict was, or was not, against the weight of evidence. And that the court may say whether it would, or would not, have ordered a new trial for that reason, if the court had seen no error of law. Code Crim. Pro., §527.

The defendant opposes this.

One serious difficulty meets us in the outset. This court is not now constituted as it was when the cause was argued. One of the justices who then sat is absent, and another justice is in his place. The defendant therefore would be deprived of the conclusion, if any, at which the justice who is now absent may have then arrived.

Nor does it seem to us that the order remitting the return was intended to provide for a re-argument of the cause. It speaks only of a modification of the order.

The defendant says that on the argument he asked for a reversal on the facts and the law, or either. Of this, one of the justices now sitting can have no knowledge. Whether this was so or not, the attention of the court was principally called to the legal questions. Seeing sufficient ground of reversal, we did not examine to see whether the verdict was against evidence.

First, This was unnecessary.

Second, In our view of the law, without additional evidence the conviction could not stand.

If the court of appeals shall hold that there was no error of law on the trial, and shall then remit the case to us for examination upon the facts, we shall then be able to proceed upon real and not upon hypothetical grounds. Whether such is the proper practice it is not for us to say..

We did not examine even all the legal grounds presented; nor was it necessary to do so. And it seems to us quite inappropriate to make a re-examination of the case in order to determine what we should have have decided on one point, provided we had decided differently on another.

If error had been committed on the trial, the defendant claimed a new trial as a right; otherwise he asked it (as he says) for a mistaken conclusion of the jury. We thought him entitled to it as a matter of right, and he is satisfied. He asks no further investigation after that result.

Motion for re-argument denied.

Landon and Mayham, JJ., concur.


text:
    Mary R. Vadney, App’lt, v. David A. Thompson et al., as Ex’rs, Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed February, 1887.)

    1. Dower—Action eor triable by jury—Code Civ. Pro., § 968.
    An action for dower is triable by jury, unless such manner of trial be waived.
    3. Same—Verdict—What is neither general nor special—Code Civ. Pro., § 1186.
    In an action for dower, the only question submitted to the jury was whether certain deeds in which the testator was grantee were delivered to him unconditionally. Held, that a finding of the jury upon this question was neither a general or special verdict.
    3. Same—Verdict—Should include what.

      Held, that there should have been a general verdict for or against the plaintiff, or that, if the testator’s ownership were the only issue, then there might have heen a finding that the testator was or was net seized of an estate of inheritance during the marriage.

      Alden Chester, for app’lt; Thompson & Andrews, for resp’ts; Eugene Burlingame, of counsel.
   Learned, P. J.

This is an appeal from an order setting aside a verdict as against the evidence.

Whatever the merits of the case, we do not think this verdict can stand. This is an action for dower ; therefore, triable by a jury unless a jury trial be waived. Code, § 968. Such trial was not waived, and the case was tried before a jury.

The answer of some defendants admits the marriage and the death of the testator and denies all other allegations. That of other defendants, in addition, avers ownership in themselves severally of the premises in which dower is claimed. Thus the principal dispute was as to the ownership by the testator of the premises during the marriage.

The only question submitted to the jury was whether certain deeds, in which the testator was grantee, were delivered to him unconditionally. To this they answered, Yes.” This was neither a general nor a special verdict. Code 1186. They did not find that the plaintiff was entitled to dower. Nor did they find that the testator was seized of an estate of inheritance in the premises during the marriage.

They passed only upon one fact which bore upon the issue; and which probably was controlling. But if we take tlie facts admitted in the pleadings, and add to those facts the fact found by the jury, we cannot from these alone decide whether plaintiff is entitled to dower or not. Nothing is said in the pleadings about these deeds.

There should have been a general verdict for or against the plaintiff. Or if, as it would seem, no fact but the testators ownership was the only issue, then perhaps there might have been a finding that the testator was, or was not, seized of an estate of inheritance in the premises during the marriage.

• The case seems to have been submitted to the jury as if the case were triable by the court, and the court were afterwards to make such other findings as might be necessary. Code, § 971. But on that verdict it would not appear that the plaintiff was entitled to dower. Code, § 1607.

Neither party seems to have objected to the course which was taken. We think' it best, therefore, simply to affirm the order without costs to either party on the appeal.

Mayham and Landon, JJ., concur.


author: Bockes, J.

text:
    Mary Duel, Resp’t, v. John L. Getman, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February, 1887.)

    1. Insurance (fire)—Policy of—Presumption as to value of.
    In an action for damages for the wrongful cancellation of a policy of insurance: Held, that there was a presumption that the policy, if valid and in force at the lime of the cancellation, was of its face value to the plaintiff as a contract of indemnity, on proof that such face value was no greater than the value of plaintiff’s interest in the property insured and destroyed by fire.

      2. Same—Wiiat is matter of defense in action for wrongful can-
    cellation of.

      Held, that the unavailability of the policy, conceding its validity, was a matter of defense by way of reduction of'damages.
    3. Same—Evidence of existence of policy.

      Held, that evidence of a delivery of the policy subsequent to the fire was admissible to prove the existence of the policy.
    4. Notice to produce—Failure to comply with—Consequences of.

      Held, that the plaintiff, having served upon the defendant a notice to produce the policy, and he having failed to comply without showing satisfactory reason for such failure, all evidence on his part as to the contents of the policy was incompetent.
    Appeal from a judgment entered upon a verdict, and from an order denying a motion for a new trial on the judge’s minutes.

      Baker & Burton, for app’lt; Edgar A. Spencer, for resp’t.
   Bockes, J.

There was a sharp conflict of proof upon the principal if not upon all the material facts in the case; and the evidence, too, was chiefly from witnesses interested, pecuniarily or in feeling, in the event of the suit. The case was one, therefore, peculiarly for the jury. We must assume, as we think, that on the proof the jury were authorized to find that the defendant was in possession of and held for the plaintiff a valid policy of insurance, issued to her upon her property, guaranteeing her against loss and damage by fire; that contrary to this obligation and duty to her he cancelled such policy, or caused it to be cancelled; and further, the insured property having been destroyed by fire, the plaintiff was damaged by reason of such cancellation to the amount certified in the verdict. The evidence on the part of the plaintiff, if credited and construed as it was insisted before the jury it should be, would support a finding that the policy was upon the plaintiff’s interest in the property covered by it, and was, while in the hands of the defendant, and until cancelled by or through his wrongful conduct in that regard, a valid, binding instrument. The issue on which great stress was laid at the trial was whether the policy was in force at the time of the surrender and cancellation. After looking carefully into the proof we cannot say that the verdict is unsupported by the evidence. So to do would require us to credit, discredit and construe conflicting proof, which was within the province of the jury, not for the court on reviewing the case on appeal.

As to the wrongful action of the defendant, and as to the damages resulting to the plaintiff therefrom, there was proof to the effect that the former not only cancelled the policy, or caused its cancellation, but also that he refused to give the latter the name of the company in which he effected the insurance; and it would follow as a consequence that the plaintiff, could not present her claim for payment or perfect it by the service of the requisite proof of loss. There was, too, a presumption that the policy, if valid and in force at the time of its cancellation, was of its face value to the plaintiff as a contract of indemnity, on proof that such face value was no greater than was the value of the plaintiff’s interest in the property insured and destroyed by fire, and indeed the unavailability of the contract for any reason conceding its validity, would be matter of defense by way of'reduction of damages. The same rule would apply here as in case of trover for a promissory note, bill of exchange, draft or other contract. Thayer v. Manly, 73 N. Y., 305. There is nothing decided in Wills v. Wells (8 Taunt., 264), cited by appellant’s counsel to the contrary of this. Accepting then the verdict as conclusive on the material questions of fact, it remains to enquire whether there is any error in the rulings of the court, either upon questions as to the admission or rejection of evidence, or in the submission of the case to the jury for decision.

It appeared that the property covered by the policy was owned jointly by the plaintiff and her husband, and that the former was in possession at the time the arrangement was made with the defendant for the insurance. The plaintiff was permitted to testify, against - objection and exception, that her husband told her when he went away to use the property as she saw fit for the benefit of herself and children; that it was her property. This evidence was, as the case was made, quite immaterial; but as her interest only was insured and such interest was equal in value to the amount of the insurance such evidence was entirely harmless. Objection was also made to what occurred at the defendant’s office when the plaintiff went there after the fire to see about the policy. As to this, the plaintiff testified that the clerk took the policy out of the safe and said it was her’s, and handed it to her or reached it towards her. and that she asked him to read it, and he did so; that. he stated the vocation of the land, also the company, but that she did not remember the name of it. The objection made and urged was to any evidence tending to prove & delivery of the policy subsequent to the fire or to an agreement relating to it; and also to the witness giving the contents of the policy. The evidence does not seem to be obnoxious to the grounds of objection urged. The point of the evidence went to the mere fact of the existence of the policy, and for this purpose the evidence was admissible. It also appeared at a subsequent stage of the trial that the plaintiff had served notice on the defendant to produce the policy, with which he failed to comply without showing satisfactory reason for the omission, and for this reason the question to the defendant as to whose name was written in the policy was rightfully excluded. Platt v. Platt, 58 N. Y., 649. In this connection the defendant testified that he kept a record of the written portion of policies issued through his agency, and that there was a record of the written portion of this policy (the policy in question) made in a book kept by him for that purpose; that it was made from the conversation had between him and the plaintiff immediately after the latter left his office at the time of her application for the insurance; also that there was a written memorandum then made in her presence of what she desired to have insured; that it was read over to her but not preserved, but that the book contained an exact copy of that memoranda. The book was offered in evidence but was rejected.

In this there was no error. The policy was the best evidence of the facts sought to be proved, and the defendant had made this incompetent because of his contumacy in refusing to produce it. As a memoranda, it was incompetent to be read in evidence because not necessary to aid the the memory of any witness as to any fact stated in it. The defendant also offered to show that the insurance was written in the Niagara Insurance Company, and that it was written to A. P. and Mary Duel, and that the policy contained a provision declaring that it should be void in the absence of an endorsement thereon to the effect stated by counsel, and that there was no such endorsement on the policy. This evidence was objected to and excluded. It is understood from the course of the trial that this was an offer of proof by paroi. In this ruling there was no error, because as to all this the policy itself was the best evidence, and that even was then inadmissible on the defendant’s offer because of his contumacy, as above stated, in omitting to produce it on the notice requiring its production. Besides, it did not lie with the defendant to allege that the policy issued through his agency was invalid when called upon to answer for his wrongful cancellation of it. The defendant was asked as to what were his instructions from the company in regard to the cancellation of policies. As the case was made on the proof, this subject of inquiry was entirely irrelevant. Whatever were his instructions from the company in that regard could not affect the question in issue between the parties here, whether the defendant had, contrary to his agreement with the plaintiff to carry the policy for her, himself caused its cancellation. The question was not one between the plaintiff and the company, but was one between the plaintiff and the defendant as to his duty and obligation to her.

As respects the exception to the charge of the judge and to his refusal to charge as requested, we find no ground of error. The first request was granted, the second was not refused ; nor, indeed, was there any refusal to the third; nor was an exception entered to the remarks made by th e court in replying to the second and third requests. The general exception “to the refusal to charge as requested and to the charge as made ” is unavailing for indefiniteness.

Judgment and order affirmed, with costs.

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


author:
Bockes, J.
      Land on, J.

text:
    Robert C. Martin, App’lt, v. Maria Ann Rector, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed February, 1887.)

    Lease—Re-entry of demised premises—Code Civ Pro., § 1505—Notice —Ejectment.
    A lease reserved to the lessor the right to re-enter the premises demised, if no sufficient distress could be found upon the premises, or “ if. either of the covenants and conditions hereinbefore contained.” * * * " shall not be performed, fulfilled and kept, or shall be broken," one of which covenants was for the payment of rent at a time specified Held, that a notice of fifteen days, us prescribed by Code of Civil Procedure, section 1505, was essential to the right of action in ejectment for non payment of rent Landon, J , dissenting

      Rosendale & Hessberg, for app’lt; G. W. Miller for resp’t.
   Bockes, J.

The action was ejectment by re-entry for the non-payment of rent. On the trial before a referee, the plaintiff was non-suited, and the complaint dismissed, because of the omision to allege and prove the giving of the fifteen-day notice provided for by section 1505 of the Code of Civil Procedure, which superseded section 3 of chap. 274, Session Laws of 1846.

This ruling seems well sustained by several decisions in the court of appeals, both directly and inferentially. Van Rensselaer v. Snyder, 13 N. Y., 299; Same v. Ball, 19 id., 100, on page 108; Same v. Slingerland, 26 id., 580; Hosford v. Ballard, 39 id., 147, on page 152. The provisions in the leases here counted on, giving the right of re-entry, are, as will be seen on examination and comparison, precisely the same as in the three cases first above cited. Those cases are, as is also Hosford v. Ballard (supra), to the effect that on a lease, conditioned as are these, the right of re-entry for non-payment of rent is made to depend on the service of the fifteen-day notice before suit. We do not deem this question open here to discussion.

It should be noted that when the right to re-enter arises on default of payment of rent, and is not made to depend on a sufficiency of goods whereon to distrain, the fifteendav notice is unnecessary. Hosford v. Ballard, supra; Cruger v. McLaury, 41 N. Y., 219. Such, however, according to the decisions first above cited, is not this case. Here, as is there held, the right to re-enter was given in case no sufficient distress could be found upon the premises to satisfy the rent in arrears. The right to re-enter did not arise simply on an omission to pay the rent reserved and .agreed to be paid. It is true the provision, following that giving the right to re-enter for failure of distress, also in terms gives such right, “if either of the covenants and conditions hereinbefore contained * * shall not be performed, fulfilled and kept, or shall be broken,” one of which covenants was for the payment of rent at the time specified; and it is urged by the appellant’s counsel that under this provision the right of re-entry is preserved to the landlord, independent of the other right given him in case of a failure of distress. This contention seems to be sustained by the remarks of Jewett, Ch. J., in Van Rensselaer v. Jewett (2 N. Y., 141, on page 146). Whether these remarks were or were not concurred in by the other members of the court is not made directly to appear, although such would be the inference probably; and they would doubtless be controlling in this court in the absence of any later case in the court of appeals holding them unsound. But the later cases, particularly the first three above cited, wherein the provisions of the leases there considered were the same as here, hold, as it seems, to a different construction of the proviso, and assert the rule to be that under the provisions contained in the lease here counted on the fifteen-day notice is made essential to the right of action in ejectment for non-payment of rent. We are of the opinion that the question here presented is determined favorably to the defendant by the cases cited.

Judgment affirmed, with costs.

Learned, P. J., concurs.

Land on, J.

(dissenting).—I cannot concur. By this lease-the landlord had the right to re-enter upon default in payment of rent, without any reference to the question whether there was a sufficiency of goods whereof distress could be-made. Section 1505 of the Code of Civil Procedure, requiring fifteen days notice, applies to a lease in which the right of re-entry is given in default of sufficient distress, but does, not apply where the right to re-enter depends upon the mere non-payment of rent. Hosford v. Ballard, 39 N. Y., 147 ; Cruger v. McLaury, 41 id., 219.

Now in addition to the absolute right to re-enter for nonpayment of rent, this lease also contains the right to re-enter “if no sufficient distress can be found upon the premises.” The plaintiff does not count upon this covenant, and if he did he should not fail, if alleging two sufficient causes, he-made one good. It seems unsound to hold that the plaintiff cannot maintain the first covenant of his lease, because-he has not attempted to maintain the second, the two covenants being independent.

Van Rensselaer v. Jewett, (2 N. Y., 141), supports this', position. The lease there was precisely like this. Subsequent cases in which the point did not arise are cited as authority for the contrary doctrine. Every judge knows how difficult it is to limit his language to the precise point he needs to decide, and the little consideration nis language deserves when it covers new points which he did not have to consider. In Snyder’s case (13 N. Y., 299); Ball’s case (19 id.,. 100), and Slingerland’s case (26 id., 580), the fifteen days, notice was given. Hence there was no need to consider the-effect of not giving it, and hence they do not detract from the authority of Van Rensselaer v. Jewett (supra).