text:
    In the Matter of application for the Probate of the Will of Julia Ann Spratt, Deceased.

      (Supreme Court, Appellate Division, First Department,

      Filed April 10, 1896.)

    1. Appeal—Question of fact.
    Where a notice of appeal has been taken from every part of a decree of the surrogate, the facts are before the appellate court for review, though .no exception to the surrogate’s decision has been filed; upon the hearing of the appeal, the court may' reverse it upon the facts, if the case is one which requires such action.
    2. Same—Questions of law.
    But no questions of law can be reviewed upon such an appeal, unless exceptions have been taken as provided by section 2545 of the Code.
    3. Wills—Undue influence.
    The natural influence of a parent or guardian over the children, or the husband over the wife, or the attorney over the client, may lawfully be exerted to obtain a will or legacy, so long as the testator thoroughly understands what he is doing and is a free agent'. .
    4. Same—Burden of proof.
    The person who alleges that the will was obtained by undue influence is bound to prove, not only that there was an opportunity to exercise undue influence, but that it was actually exerted, and that the effect of it .was to overpower the. will of the testator, and procure him to make a disposition of his property other than that which he would have made if no influence was exerted and which he would not have made if no such influence had been practiced upon him.

      ;g. Witness—Section 829 of the Code.
    Where the only evidence as to the relations between the testatrix and her residuary legatee, who is alleged to have exercised undue influence over her, is that elicited on the cross examination of such legatee, the witness is not precluded by section 829 of the Code front the fullest opportunity to explain all the transactions as to which he is interrogated, and to give not only the facts, but the circumstances, when material.
    Appeal from a decree of the surrogate admitting to probate a -will dated April 24, 1893, and refusing probate to an instrument ■■dated May 25, 1893.
    Francis Forbes and Chas. T. Haviland, for app’lts; Chas. H. .Beckett, for resp’ts.
   RUMSEY, J.

The respondents object to the consideration of ■this appeal for the reason that no exception to the decision of the •surrogate were filed by the appellants. Section 2545 of the Code •of Civil Procedure provides for the taking of exceptions to a ruling made by the surrogate upon the trial. It also provides that the surrogate must file his decision in each case, which must state separately the facts found and the conclusion of law, -and that ■either party may, upon the settlement of the case, request a •■finding upon any question of law, and an exception may be taken to such finding or ruling, or to the refusal to so find ■or rule. It is further provided that the appeal from a decree ■of the surrogate’s court brings up for review each decision to ■which an exceptión is taken by the appellant. Under the provision of that section, it was held in the case of Angevine v. Jackson, 103 N. Y. 470; 3 St. Rep. 463, where no exception was taken to the findings, that the general term was powerless to reverse the decree of the surrogate. But upon further consideration, in the case of Burger v. Burger, 111 N. Y. 524; 20 St. Rep. 105, and the ruling in the Angevine Case was to some extent changed. In the Case of Burger an exception had been taken to the •decision of the surrogate, but the court held that that exception, for reasons there stated, was of no avail. It further held, however, that, although the exception was not available to raise any question, yet that an appeal from the decision of the surrogate on the ■facts as well as on the law, was sufficient to give the appellate •court jurisdiction to review the facts, if a case containing evidence had been made, and that an exception to a finding of fact was neither necessary nor proper. It is provided by section 2576 of the. Code-of Civil Procedure that an appeal may be taken upon questions of law, or upon the facts, or both. The appeal is to be taken by serving a notice referring to the decree, and stating that the appellant appears from the same, or from a specified part thereof. It was held in Re Stewart, 135 N. Y. 413; 48 St. Rep. 434, that- where the notice of appeal stated that the appeal was taken from the decree of the surrogate, and from every part thereof, it was sufficient to bring up for review, not only the law, but the facts. Considering the last two cases together, the rule is, as we think, that, where a notice of appeal has been taken from every part of the decree, t)ie facts are before the appellate court;, for review, although bo exception to the surrogate’s decision has, been filed, and that, upon the hearing of the appeal, the court! may reverse it upon the facts, if the case is one which requires-such action. But no questions of law can be reviewed upon such an appeal unless exceptions have been taken as provided by section 2545 of the Code. The case presented here., therefore, is sufficient to require us to review the facts, and also such questions-of law as were raised by exceptions taken to the rulings of the-surrogate upon the trial.

The testatrix, Julia Ann Spratt, was a widow, aged from 70 te74 years, who had lived for many years in the .city of New York. She had no children or descendants of any children, her sole relatives being nephews and; nieces. .On tjre 24th :of April, 1893, she executed a will; and in'about a month from that time, and on the 25th of M.ay, 1893, she executed another one. She died in October of the same .year. Each will was presented for probate-by the proper person, and the usual allegations in opposition to-the probate of each one were presented by those persons who desired to,contest them. Affcer the contestants! answers had been filed in each case, the surrogate made an .order, upon-consent, consolidating the two. proceedings, which were carried pn together, from that time. .As the result oi; the tidal had .upon those proceedings, the decree .from which this appeal, was taken was entered, denying probate to the will of Mhy 25, 1893, and admitting to-probate of April 24, Í893. It was conceded, .on all .hands that-the testatrix was of sound .mind, and., competent to make a will, and, so far as mere formal masters were concerned, each will was:properly executed,, The, only, q.uestio.n presented, to the surrogate, and upon which, he decided, was,whether, the will of May 24, 1893, was procured by undue, influence practiced, upon Mrs. Spratt by William Nelson ¡fie Page, the residuary.legatee in. that-will. Le Page was the nephew of Mrs. Spratt’s husband, who, it. appeared, had died .marry years before, leaving ,a considerable-estate in China. After the death of the husband, it seems that Le Page had been consulted by íírs. Spratt with_reference to the collection or settlement of her husband’s matters in the, foreign country, and had,taken, general charge of it for .her, under an agreement that he was to receive a certain portion of what was collected as compensation for’his services. Whi)e the testimony upon this-subject is somewhat vague, it is fair to infer that he brought about a settlement of the matter, and, received, in, one form or another,, the agreed compensation for his work. Aiter that time it would seem that Le Page was trusted by Mrs. Spraft to a very consider-, able extent;, that he was her adviser somewhat; and that he -had considerable to do with her financial affairs. •

The surrogate, in deciding the. case, assumed, as the result of the evidencé, that Le Page occupied a confidential relation towards-Mrs. Spratt. Were it necessary to pass upon that point, we would have great difficulty in reaching the conclusion which the surrogate arrived at. But, without considering that question further, and assuming, upon the decision of this appeal, that the surrogate-was correct in his conclusion in that regard, it remains to be seen whether the facts warranted a finding that the will was procured by undue influence practiced by Le Page, as was found by the surrogate.

What constitutes undue influence which would avoid a will has been so frequently the subject of decision that no examination of authorities with regard to it is necessary. The rule as we adopt it is laid down in Re Seagrist’s Will, recently decided by this court, and reported in — St. Rep.-, and the cases therein cited..

The surrogate, assuming that Le Page occupied towards the testator a confidential relation, held that there arose from that fact alone a presumption that the will had been procured by his undue influence practiced upon her, and that the burden was put upon him of rebutting this presumption, and establishing that in making this will the testator acted without restraint or undue influence and that it was the production of her own free will, without any undue pressure of the beneficiary. In this conclusion the surrogate erred. Where contracts are made inter vivos which take-effect presently, it is well established that, if the party benefited be such contracts occupies towards the other party a confidential relation, the court will presume that the contract was obtained through his fraud, and will put upon him the burden of proof,, when it is attacked, that it was fair in all its' parts, and was obtained by the exercise of no improper. influence upon the other party to the contract. But in the case of wills no such rule exists. In such cases the natural influence of the parent or guardian over the children, or the husband over the wife, or the attorney over the client, may lawfully be exerted to obtain a will or legacy, so long as the testator thoroughly understands what he is-doing, and is a free agent. This distinction is so thoroughly established that it is only necessary to cite authorities in support of it. Parfitt v. Lawless, L. R. 2 Prob. & Div. 462; Brick v. Brick, 66 N. Y. 144; In re Lyddy’s Will, 24 St. Rep. 607; In re Bedlow, 67 Hun, 408; 51 St. Rep. 782; Bancroft v. Otis (Ala.) 8 South. 286. Heither is it sufficient to establish that a will was obtained by undue influence that the person accused of practicing it had an opportunity so to do, because the fact that such an opportunity existed does not raise the presumption that advantage was taken of it. In re Bedlow, 67 Hun, 408; 51 St. Rep. 782; Cudney v. Cudney, 68 N. Y. 148. The person who alleges that the will was obtained in that way is bound to prove, not only that there was an opportunity to exercise undue influence, but that it was actually exerted, and that the effect of it was to overpower the will of the testator, and procure him to make a disposition of his property other than-that which he would have made if no influence was exerted, and which he would not have made if no such influence had been practiced upon him. It will be necessary to examine the evidence-in this case to see whether, within these well settled rules, the contestants established that the will was procured by undue influence of Le Page, as the surrogate found.

It appears from the testimony that, in 1881, Mrs. Spratt'made a will, in which Le Page was named as residuary legatee. This will -continued in existence until April 24, 1893. Theré is nothing to show that during all that time there was any ground of difference between Le Page and Mrs. Spratt, or that up to that time she had' .any reason to complain of his conduct towards her. It is quite true that there were financial transactions between them, and it may be that, as the result of these transactions, Le Page did not -appear in an enviable situation, but with regard to that more will ■be said hereafter. It was made to appear that on the 24th of April, 1893, Mrs. Spratt made a new will, from the provisions of which Le Page was excluded, and another person named as residuary legatee. Why this viras done nowhere appeared. Where Le-Page was at that time is not shown by the evidence. It does appear, however, that, soon after that time, he came to the city of New York, with his wife. He did not stay at Mrs. Pratt’s house, but he and his wife stayed at the Sinclair House.. There is no •evidence to show that from the 24th of April, 1893, to the 25th •of May, 1893, he saw Mrs. Spratt more than twice. One of those times was when the second will was made, and the other a few ■days before it. The person .who saw him with Mrs. Spratt at that time did not undertake to say that he had one word of conversation with her. The case is entirely barren, therefore, of any proof that, by word or act between the 24th of April and the 25th of May, Le Page communicated with Mrs. Spratt on the subject of a will, or conveyed to her any intimation or request that she should 'make any change in the will which she had previously made. Indeed, there is no evidence in the case that he knew what were'the -terms of the will of April 24th. Mrs. LePage said that she heard that Mrs. Spratt had made a will, and that she told her husband -of it, but that she never saw it, and did not know what was in it . There is no evidence to contradict this except the testimony of Mrs. Carrie'Spratt, who says that one time, in the month of May, 1893, she saw Mrs. Le Pagein the laundry, showing her husband -a folded light brown paper; and that immediately afterwards Le Page said that he had to go down town, and that he would be "back; and that he was very much excited. It does not appear that Le Page or his wife looked at the paper, or that they knew •the contents of it, nor that it was the will of April 24, 1893. But it was possibly fair .to infer, although there was no direct proof upon the subject, that Le Page did have some conversation with Mrs. Spratt during the month of May, 1893, because in some way he became possessed of her desire to have another will made, and' procured Harrison & Byrd to' go to her house to make it. Even that inference, however, leaves us a long way from any proof that he exercised any undue influence, or any influence whatever, upon Mrs. Spratt to get her to make the will she did make in May. "The only evidence as to the relations between these parties is that ■derived from Le Page’s cross-examination when he was sworn and examined as a surrogate’s witness. .Care must be taken rot to draw from that examination too severe inferences against the witness. He was required to answer explicitly whatever question was put to him, however harsh might be the inferences to be drawn from his answer. He was not permitted to explain his ■answers, although he made many efforts to do so; nor was he permitted to tell fully any of his business transactions with Mrs. Spratt, from which these inferences were drawn, which, as the surrogate says, show him in an unenviable light. Neither was he permitted, by independént evidence, to explain any of these transactions. For these reasons, it is necessary to be careful, and not lay too much stress upon this cross-examination of Le Page, either as showing that he was a "bad man, or that his relations with Mrs. Spratt were such that he could have practiced undue influence upon her if he had seen fit. When the conduct of a witness is attacked in such a case, he should have given to him the very fullest opportunity to explain all the transactions as to which he is inquired of, not only giving the facts, but, where the surroundings are material, giving the circumstances of the transaction in full. In this case, although Le Page was permitted to go into his business affairs with Mrs. Spratt, frequently when he attempted to give testimony on his own account with regard to some transaction, he was met by the objection that it was not admissible, under section 829 of the Code, and his version of the transaction was excluded. Not only was this done in his own case, but it was done in the case of the witness Cole, when he was sworn to testify as to the payments made by him to Mrs. Spratt. But, giving this testimony its utmost ■weight against Le Page," it proves only that he had used his friendship with Mrs. Spratt to borrow money of her, part of which he had paid; but it does not show that he had gained any great ■control or influence over her, much less that he exercised any at this time. Besides the testimony of Le Page, there was evidence ■given from Mrs. Sellon and from one Eodenberger, bearing upon the feeling of Mrs. Spratt towards Le Page, Of this evidence it may be said that it showed that Mrs. Spratt found fault with Le Page at the time of which the witnesses spoke, because he had borrowed money of her. Except for that testimony, there is no evidence in the case to show any undue influence on the part of Le Page in the making of the will of May 25th. On the contrary, it appears from the testimony of Mr. Harrison that Mrs. Spratt told him what legacies she desired to leave by that will, that Le Page said nothing on the subject, and she communicated with nobody in his presence with regard to them, except with Toner, about the carriage and horse. A comparison of that will with the will of April 24th shows that there is little material difference between them, except with regard to the residuary legatee. In the will of May 25th she had reinserted Le Page as residuary legatee, which position he had occupied towards her ever since 1881, except one month. The other provisions of the will are substantially like the will which was made on the 24t-h of April.

We have thus gone over in a general way all the testimony, which is relied upon as showing that the will was obtained by undue influence practiced by Le Page upon Mrs. Spratt, and we have reached the conclusion that the surrogate erred in his decision on that point.

We have examined the various exceptions taken to the ruling of the surrogate; but, as the conclusion reached above will require a new'trial of the issue of undue influence, it is unnecessary to say more with regard to it than that many óf them proceeded upon an erroneous principle. The evidence of Cole, which was-objected to imd excluded as incompetent, under section 829 of the Code was plainly competent. So", was the evidence of Mrs. Le Page. She had been examined fully as to the transactions-with Mrs. Spratt, and as to the time when she became acquainted with her; and, by that course of examination, the contestants-had opened the whole subject, so that she was .competent to testify upon it; and it was error to exclude her testimony upon the grounds to which objection was made. But it is unnecessary to-pursue the investigation óf these exceptions further. The conclusion of our examination is that the decree of the surrogate-must be reversed, and the case must be sent for trial by jury in. the supreme podrí upon two questions: First. Was. the paper writing dated on the 25th of May, 1893, the last will and testament óf Julia Ann Spratt? And, second, was such paper writing procured by fraud and undue influence óf Robert ¡Nelson Le-Page?

The costs óf this appeal are to abide íbé event, of the final ,determination of the case, after the new trial shall have'been had.

All concur.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    Helen Silver, Resp’t, v. Western Assurance Company of Toronto, Canada, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed, April 10, 1896.)

    1. Insurance—Foreign— Service on summons.
    In an action against a foreign insurance company, it is not necessary to-serve a summons upon tire insurance commissioner.
    2. Same.
    In the absence of proof that a designation under subdivision. 2 of section 432 of the Code had been made or was in force, or .of. proof that the defendant had no property within this state, nor that the cause of action did not arise in this state, the service,' if made upon- the cashier, director . or managing agent of the corporation, is good under the third subdivision of said section.-
    3. Same.
    The company cannot procure an order setting aside the summons and complaint unless it proves that the service made was,not such as the law provides for to give the court jurisdiction of-the action.
    Appeal from an order made at special term, which vacated a former order made on default" setting aside the service of summons and complaint in the action, and which denied defendant's motion .to set aside such service.

      February 6, 1896, George A. Stearns made an affidavit entitled' in the action, wherein he stated, in substance, that he was the attorney for the defendant in the action for the motion only ; that defendant was a foreign corporation organized under the laws of Canada; that it was doing business in this state,, and had complied with the laws of the state; that pursuant to law the defendant had duly designated the superintendent of insurance of the .state as the person on whom service of all process in the state must be made, and such designation was still in force, as appeared by a certificate of said superintendent in deponent’s possession certifying that defendant filed in his department July 16, 1884, an appointment of the superintendent as its attorney to receive service of process in the state under the provisions of chapter 346, Laws 1884, and that such appointment had not been revoked, and was still in force and effect; that one Blackwell was a special .agent for defendant, and that his duty was to act for the defendant in receiving proofs of loss and in adjusting losses, and that deponent had been informed by said Blackwell that a summons .and complaint in this action were left with him, although he (Blackwell) expressly stated that he was not the proper person upon whom tó make service. Upon this affidavit an order to •show cause was made, and afterwards, the plaintiff being in default, the order was made, setting aside the service of the summons and complaint. Afterwards the attorney for the plaintiff made ■an affidavit, in which he stated, among other things, that the action was commenced by the service of the summons and complaint iipoa Mr. Blackwell, "the agent of defendant Subsequently the default was opened, and the motion to set aside the service was denied. The only facts upon which the court acted in denying the motion to set aside the service were those stated in these two affidavits .above referred to. The summons and complaint were not used on the motion, and are not in the papers upon this appeal.
    George A. Stearns, for app’It; Abraham H. Sarasohn, for resp’t.
   WILLIAMS, J.

It is conceded here that the court at special term erred in placing its decision upon the failure of defendant to make the designation provided for in chapter 349, Laws 1895. That act related solely to justices’ courts, and had no application to courts of record. The only question is whether the service was properly made by delivering copies of the summons and complaint to Blackwell, the agent of defendant, under subdivision 3, "| 432, Code Civ. Proc. That section provides that:

“ Personal service of the summons upon a foreign corporation must be made by delivering a copy thereof within the state, (1) to the president, treasurer, or secretary, or if the corporation lacks either of these officers, to the officer performing corresponding functions under another name. (2) To a person designated for the purpose by a writing under the seal of the corporation and the signature of the president, vice-president or other acting head, accompanied with a written consent of the person designated and filed in the office of the secretary of state. (The section then provides for the contents of the designation, and that it shall remain in force until a written revocation is-filed, etc.) (3) If such a designation is not in force or if neither the person designated nor any officer specified in subdivision 1,. of this section can be found with due diligence, and the corporation has property within the state, or if the cause of action arose-therein, to the cashier, a director, or a managing agent of thecoi-poration within the state.”

The defendant made the motion to set aside the service, and it. was incumbent upon it, in order to obtain the relief sought for, to-show facts from which the court could determine that the service-was improperly made. We do not think such facts were showu by the papers used on the motion. The appointment of superintendent of insurance as attorney to receive service of process was-made under chapter 346, Laws 1884 (not 1894, as stated in the-printed papers). The appointment was made in 1884, after the-passage of the act of that year. * That act was repealed by chapter 690, Laws 1892, and section 30 of the later act was enacted in. place of the provisions of the act of 1884. The act of 1884 and. the act of 1892, so far as the question here involved is concerned,, were substantially the same, and provided, in effect, that a foreign-insurance corporation should execute and file in the office of the-superintendent of insurance a written appointment of the superintendent to be the true and lawful attorney of such corporation in and for this state, upon whom all lawful process in any action or proceeding against such corporation might be served with the-same force and effect as if -it_ were a domestic corporation, and that service upon such attorney should be deemed service upon-the corporation. The appointment made under these provisions; was not the designation provided for, however, by subdivision 2,. section 432, Codé Civ. Pro-c. The appointment made under these-acts was to be filed in the office of the superintendent of insurance, and related alone to foreign insurance corporations; while the designation under this section of the Code was to be filed in the office of the secretary of state, and related to all foreign corporations, whether insurance or otherwise. The provisions of section 432 of the Code of Civil Procedure were enacted long before either the statute of 1884 or that of 1892. These provisions-of the Code have never been expressly repealed, and are still in, force. The provisions of the acts of 1884 and 1892 in no manner ' conflict with the provisions of the Code. The acts of 1884 and 1892 provided fix the service of process upon a person other than those specified in the provisions of the Code, where the foreign corporation was an insurance company. The acts of 1884 and 1892 provided merely that process might be served upon the superintendent, of insurance, not that it must be. A proper, service might, therefore, be made upon a foreign insurance corporation under the provisions either of the Code or of the act of 1884 or 1892. Concededly, there was no attempt here to serve; under the provisions of the act of 1884 or- of 1892. ' --

The only question, therefore, is whether the defendant; mad& proof of such facts at special term as called upon the .court to hold 'that there was not good service under the provisions of the Code. :It appeared that the service was made by delivering the summons- ¡and complaint to Blackwell. There was no proof or claim that ■any designation had been made under the provisions of the Code. 'The difficulty with the proof that was made at special term was-'that it did not show that Blackwell was not the person referred 'to in either the first or third subdivision of section 432. All that 'the proof showed was that he was a special agent for defendant, and that his duty was to act for defendant in receiving proofs of loss and in adjusting losses. It did not-show that he had no other relations with the defendant. For all that appeared, he might have been the president or secretary of defendant. There was no proof that the defendant did not lack either of these officers, and that Blackwell was not then an officer performing corresponding functions. If he was either of these persons, the service was good under the first subdivision of the section. There was no proof that a designation under subdivision 2 of the section had been made or was in force, nor was there any proof that the defendant had no property within this state, nor that the cause of action did not arise in this state; and, in the absence of this proof, the service, if made upon the cashier, a director, or a managing agent of the defendant, was good under the third subdivision of the section ; and then there was no proof that Blackwell was not either the cashier, a director, or a managing agent of the defendant. The defendant could not have an order setting aside the summons -and complaint unless he proved that the service made was not ■such as the law provided for to give the court jurisdiction of the action. ISTo such proof was given, for the reasons stated. Such .proof was at hand if it could be made at all. Blackwell was the-■agent for defendant, located in the state. His affidavit could have 'been presented showing what his entire relations with the defendant were. Only the attorney’s affidavit was produced, and it might well be true that he had no knowledge as to Blackwell’s'relations with the defendant, or whether they were anything more than that of a special agent with the duty to receive proofs of loss and to adjust losses or not. We do not deem it necessary to-pass upon the question whether, if Blackwell’s only, relations with, the defendants were to act for it in receiving proofs of loss and adjust losses, he was a managing agent under the provisions of section 432 of the Code. There was no proof before the special term that these were his only relations with defendant, no proof that his relations were not such as clearly and beyond all question constituted him a managing agent.

We think the order was properly made by the special term, and that it should be affirmed, with costs.

All concur.


author: INGRAHAM, J.

text:
    Uriah Herrmann et al., Resp’ts, v. Herman A. Curiel et al., App’lts.

      (Supreme Court, Appellate Division, First Department,

      Filed April 10, 1896.)

    1. Use and occupation—Value.
    In an action to recover for the use and occupation of premises, a verbal agreement of leasing, invalid under the statute of frauds, is admissible to establish the value of such use and occupation.
    2. Same.
    In such action, the plaintiffs are not entitled to a recovery for any part of the building not occupied; or of which possession was not taken by defendants.
    3. Same—Delivery.
    The delivery of a key of a store, with the continued use and occupation of such store, cannot he considered a symbolical delivery of the lofts above the store when the access to such lofts is by a separate door, not connected in any way with the store itself, and where the keys of such loft or of the door leading thereto, have not been delivered.
    Appeal from a judgment in favor of plaintiffs.
    O. E. Eushmore, for app’lts; Henry H Man, for resp’ts.
   INGRAHAM, J.

The complaint alleges that on or about December 12, 1890, at the request of the defendants, the plaintiffs delivered possession to them of the first floor, basement and see-' ond, third and. fourth lofts of the building No. 80J Pearl street;, that the defendants continued in the possession and occupation of the premises down to .the 30th day of December, 1891, when they surrendered the same to the plaintiffs; that'the value of the use' and occupation of said premises was at the rate of $2,000 per an-1 nnm; that the defendants “obtained the plaintiffs” to give them such possession by orally promising to pay' the sum of $2,000 per annum for the use and occupation of the premises. The; judgment demanded is for the recovery of $2.100, with interest. These allegations are denied. To show the value of the use and ■occupation of the premises, the plaintiffs proved á verbal agreement by which the defendants agreed to lease the premises for three years at $2,000 per year; and, the jury having found that such agreement was made, we do not think we should be justified in disturbing the verdict fixing the value of the use and occupation. 1

The other question at issue was as to the possession of the whole building by the defendants. It is conceded that the defendants entered into possession of the store; but, as this stor& was disconnected from the rest of the building, and as the actioni is for use and occupation, it seems clear that the plaintiffs would! not be entitled to a recovery for any part of the building not oc‘ cupied, or of which possession was not taken by them. ' The coarto 'left it for the jury to say whether the defendants did take possession of the whole premises, and charged them that, if the defend'ants were only in possession of the first floor, they were not under obligation to the plaintiffs for any other part of the building. We do not think that there was any evidence to sustain the finding of 'the jury that the defendants actually took possession of any part of the building except the store. It was proved that the keys of 'the store Were delivered by the plaintiffs or their agent to the defendants ; that the defendants opened the door leading into the store, and used the store; but there is no evidence to show that they ever had possession of any key to the upper part of the 'building, that they were ever in actual possession of the upper part of the building, or used it in any way. The store itself was entirely disconnected from the rest of the building, the entrance to the upper part of the building being by a separate door from that used as an entrance to the store. Upon this finding of the jury the plaintiffs would clearly be entitled to recover the value of the use and occupation of the store; but, in the absence of evidence to show either an áctual or symbolical possession of the other lofts, there could be no liability for use and occupation of •such upper lofts. The delivery of a key of a store, with the continued use and occupation of such store, cannot be considered a .symbolical delivery of the lofts above the store When the access to such lofts is by a separate door, not connected in any way with the store itself, and Where the keys of such lofts, or of the door leading to such lofts, have not been delivered. The delivery of a key can only be considered a symbolical delivery of the premises to which access is given by the door which the key that is delivered controls. By the delivery of the key to the store, no access or method of cofinhunication with the upper lofts was given to the defendants. They could not control in any way the upper lofts by the use of this key of the store, and, so far as appears, the lofts "themselves were at all times under the control of the plaintiffs, rather than the defendants. To sustain this action it is not sufficient to prove that the plaintiff gave to the defendants the means of obtaining possession. In the absence of a covenant to pay rent that can be enforced the liability must depend upon the actual use ■and occupation of the premises, and there can be recovery except for the value of the use and occupation of what was actually used and occupied.

The case of Hall v. Transportation Co., 34 N. Y. 284, relied upon by the defendants, presented the question as to whether or not a landlord could recover for use and occupation of premises when it appeared that the defendants were not in the actual manual occupation thereof. In that case it was found that the defendants took possession of the premises .under an agreement for leasing for the term of three years, paid rent for one year, and then locked up the premises, retained the key thereof, and had not surrendered the possession of the premises to the plaintiff at the time of the commencement of the action. It was held that that possession was sufficient to maintain the action for the use and occupation. And this rule would apply to the right of the plaintiffs to maintain an action for the use and occupation of the store for the period during which the defendants occupied it, and down to the time when the key was surrendered. But the occupation of these premises was entirely different from that in the case-above cited. In this case there is no evidence tp show that the-defendants were ever actually in the lofts except once, when one of them went through the premises, to see what alterations would be necessary. No part of the lofts was ever used, no key to the lofts was ever in the defendants’ possession, the lofts were never-locked by the defendants. At no time was the whole possession, of the premises given to the defendants, because, by the terms of the lease, the plaintiffs reserved a portion of the second floor for their own use. And the essential element in an action for use and occupation must be the actual use and occupation of the-premises.

The jury was instructed that, if they found that the plaintiffs-did not give to the defendants possession of the entire building 80&. Pearl street, except the first loft, then the plaintiffs could not recover, and the defendants were entitled to a verdict. And as we are of the opinion that there was no evidence to sustain a finding, that the plaintiffs did give to the defendants possession of the entire building, or that the defendants ever took possession of the-entire building, we do not think the finding of the jury can be sustained. In view of the new trial, however, it seems proper that, we should say that, upon proof to the satisfaction of the jury that, the defendants made the agreement to have the building as testified to by the plaintiffs, the plaintiffs could recover in this action for the value of the use and occupation of the store upon proving the agreement or contract under which the defendants took possession, and the continued possession of the store.

The judgment should therefore be reversed, and a new trial ordered, with cost's to the appellant to abide the event.

All concur.


author: HATCH, J.

text:
    J. Philip Rinn, App’lt, v. Electric Power Company et al., Resp’ts.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 7, 1896.)

    1. Mechanic's lien—Abchitbct.
    An architect, who only furnishes plans, but performs no work upon the-building, is not entitled to a lien.
    2. Same.
    It is the part which the architect takes during the construction of the-building that draws his services within the lien law.
    8. Same—Modification of flans. '
    Where, before the building was commenced, the plans were modified, byj the direction of the owner, so as to provide for the present erection of only one-half the entire building, the architect is entitled to a lien for about .one-half his commissions for the entire plans, and, in addition, for all his-expenses and his commission for superintendence on the amount actually expended.

      Appeal from a judgment denying a lien as to a portion of the claim,
    Edward B. Hill, for app’lt; Lester W. Clark, for resp’ts.
   HATCH, J.

The facts upon which this appeal is to'be determined are practically without dispute. .The action is to foreclose a mechanic’s lien. Plaintiff is an architect, a.nd was employed by the defendant company, in 1892, to prepare plans for and superintend the construction of a power house at Hew Brighton, Staten Island. His compensation, provided by agreement, was five per cent, on the cost of the structure, and expenses- After the preparation of the plans the company requested him to modify them " by limiting the construction to one-half of the building. This plaintiff complied with by providing an 18-inch wall, running through the center of the proposed structure. The construction of this building was then entered upon, and when about one-half completed the company became insolvent, and was placed in the hands of the receiver. When the work was abandoned $115,000 had been expended thereon, and to complete the same would have required about $50,000. The estimated cost of the whole building, when planned, was $330,000. Plaintiff’s compensation, as agreed upon, was five per cent, of the cost of the structure; but, by custom, among architects, established upon the trial, when the building is not erected, or if the erection is begun and not completed, . the compensation is reduced by 1£ per cent, of the cost of the part 1 not erected,—the compensation of five per cent, being made up ¡by a charge of 3-|- per cent, for preparing plans and l-} per cent, for supervision. His expenses were $440.80. Plaintiff’s present claim is that he was entitled to a lien of $10,288.35, and, if not entitled to the whole sum, for more than the court has allowed. His claim is made up by charging five per cent, on the amount expended, three and one-half per cent, on $216,000, the estimated cost of completion, and expenses. The admitted payment is $3,427.45.

The court below found and stated plaintiff’s account as follows:

For preparing plans for whole structure............ $11,550 00

Expenses...................................... 440 00

$11,990 00

Payments.................................... 3,427 45

$8,562 55

One-half...................................... $4,281 22

One and a half per cent, for snpervising $115,000 expended.................................. 1,725 00

' $6,006 22

—Which sum he determined was a lien, and directed a personal judgment for the remainder of the claim.

The only substantial point in controversy relates to the extent! of the lien. There is no decision in this state, that we are able to-find, where it has been held that an architect who simply prepares plans and specifications is embraced within the lien law of the' state. Wherever the question has arisen, the preparation of plans-' has been accompanied by superintendence of the construction. In Stryker v. Cassidy, 76 N. Y. 50, the court of appeals held, reversing the general term, which denied the existence of the lien, that! an architect was entitled to it. But in that case there was pres-' ent the. element of actual supervision. In disposing of this ques-1 ion the court said:

“The architect -who superintends the construction of a building performs labor as truly -as the carpenter who frames it, or the mason who lays the walls, and labor of a most important character.”

The stress of the whole opinion is laid upon the fact that there is active participation in the manual function of construction, rather than in the preparation of the plans for the edifice.

In Bank v. Gries, 35 Pa. St. 423, this distinction was recognized, and it was there held that an architect, who only furnishes plans, and performs no -w-ork upon the building, is not entitled to a lien. In Ames v. Dyer, 41 Me. 397, it was. held that a mold from which a ship’s timbera are formed does not enter into the structure, and -is, therefore, not embraced as material- for construe-! tion. In Central Trust Co. v. Richmond, N. I. & B. R. Co., 54 Fed. 723, it was intimated that a consulting engineer, whose worki was only advisory, would have no lien, but one who actually sup-| erintended would. In Phœnix Furniture Co. v. Put-in-Bay Hotel Co., 66 Fed. 683, it was doubted if a lien could be maintained by! an architect who only furnished plans and specifications. In all! the cases which have fallen under our observation, the lien was' denied, or there was concurrence of plans and superintendence. Gardner v. Leck, 52 Minn. 522; Knight v. Norris, 13 Minn. 473 (Gil. 438); Von Dorn v. Mengedoht, 41 Neb. 525.

We think the court below was right in holding that it is the part the architect takes during the construction that draws his ser-j vices within the lien law. This rule, as applied here, limited the lien to the actual superintendence of the part constructed. Before the construction was entered upon, plaintiff was informed of the modification proposed, and changed his plans accordingly. When the construction was begun, he then knew, and assented thereto, that the building, which was to be erected, was only one-half of the one originally proposed; that the other half’ might or might! not be erected, ás contingences dictated. And when the work; was begun, as well as when work stopped, it was the common un- \ derstanding that only the half would then be erected It cannot,! therefore, be said that more than this part, was erected, within the! contemplation of the parties, even though, as part thereof, the found dation for another chimney, which might be used in the other half,: was laid. In fact, its construction was never entered upon. The! argument of plaintiff that his plans may be used eventually in the! construction of the other part does, not aid him. He never bad a, lien for his plans. If nothing had ■ been erected, he would have •had his damages,—no more. He has his judgment for damages now, and the court can no further aid him.

It is quite apparent, however, that plaintiff is entitled to a modification of his judgment. The court below only allowed him a lien for one-half of his expenses. He was entitled to the whole sum. This item was all incurred in and about the construction of the building, and consequently was subject to no deduction. This sum amounts’ to $220.80, which should be added to the amount allowed as a lien, and deducted from the general judgment ordered. Plaintiff is also entitled to interest upon the respective amounts allowed. In all other respects we think the conclusion was right.

The judgment will be modified in accordance with this opinion, and, as modified, affirmed without costs.

All concur.


author: CULLEN, J.

text:
    In the Matter of Petition by Daniel B. Taylor to have Declared Illegal Election for Incorporation of Mount Vernon.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 7, 1896.)

    1. Election—Incobpobaton of villages.
    The election law was not intended to include elections for the incorpora' tion of villages.
    2. Same.
    The whole of article 4 of the election law is limited to elections at which public officers are to be elected.
    3. Same—Repeal by implication.
    Section 8 and 9, chapter 291 of 1870, are not impliedly repealed by chapter 262 of 1890, as amended by laws of 1895.
    Appeal from an order denying a petition to have the election for the incorporation of the proposed village of Mount Vernon declared illegal.
    O. H. & J. A. Young & Terry, for app’lt; William Samuel Johnson, for resp’t.
   CULLEN, J.

The main objection urged by the appellant against the irregularity of the election in question is that it was conducted in accordance with the provisions of section 9 of the general act for the incorporation of villages (chapter 291, Laws 1870) and nowise in conformity with the requirements of the election law of 1892; that is to say there were no official ballots provided for the election, and the ballots voted at the election were not blanket ballots, but separate ballots in favor of or against the proposed incorporation; also there were no voting booths, guard rails, or similar arrangements or appliances. The validity of -this objection depends on the question whether the election law of 1892, as amended in 1895 (Laws 1895, c. 810), is applicable to elections to determine the question of an incorporation of a proposed village. The statute of 1870 directs, in express terms, how such an election shall be held, and the style of ballots to be voted thereat. The statute, in these respects, has not been, in direct terms, either repealed or modified. If not in', force, it must be because the election law of 1892 covers the same¡ subject-matter, and operates as an implied repeal of these provi-j sions of the village law. The first reform ballot law was that of 1890. After the enactment of that statue an election was held to pass upon the proposed incorporation of the village of Harrisville. The election was held and the voting had in the old way. On1 appeal it was held that the ballot law of 1890 did not apply to such elections and that the election was valid. Village of Harrisville v. Lawrence, 66 Hun, 302; 49 St. Rep. 288. It is entirely clear that that decision was correct. The statute of 1890 was repealed in 1892, the election law substituted' for it, but I find nothing in the latter statute to show that it was intended to include, elections of this character. Sections 2-4 of the statute would' seem to confine its scope and application to general elections andj special elections to fill vacancies in office. There has not been] pointed out to me, nor can I find any express provision in it, that; it shall be of general application to all elections. The direction as' to official ballots and the form of such ballots is plainly not gen-, eral. Section 80 prescribes when official ballots shall be provided: . " j

“Official ballots shall be provided at public expense at eachj polling place for every general election at which public officers, are to be elected directly by the people, except an election of school district officers or’ school officers of a city or village at which no other public officer is to be elected.” í

Hence, if there were no public officer to be elected by the people at an election, no official ballots are prescribed, and there is no requirement that the ballots voted should be of any particular character, for section 89 only applies where official ballots should have been furnished, and yet have not been furnished. It will be seen by the limitations and provisions of section 80 that the whole of article 4 of the election law is limited to elections at which public officers are to be elected. The serious question in this case arises from the amendment of section 83, made by chapter 810, Laws 1895. As amended, it directs that, whenever a constitual amend-1 ment or other proposition or question is to be submitted to the! vote of the electors of the state or of any. district thereof, a sepa- j rate ballot shall be provided by the same officers who are charged! by law with the duty of providing the official ballots for candidates for public office. . Such ballots shall comply with the re-; quirements of the official ballot for candidates for public office, in! so far as such requirements are applicable thereto. It may be conceded that the language of this section in its present form is! broad enough to include the election here in dispute, but this concession is not conclusive upon the question presented. The intention of the legislature must be determined from a consideration of the two statutes taken in their entireties. It is to be premised that repeals by implication are not favored. “A statute may sometimes he regarded as being repealed by reason of its inconsisteney with a subsequent statute and by implication; but repeals by-implication are not favored in the law, and it is only in cases where the repugnancy is manifest, and the two statutes cannot be reconciled or stand .together, that the rule can be applied.” Mark v State, 97 N. Y. 572. See People v. New York Catholic Protectory, 101 N. Y. 195. The provisions of the several election .laws enacted during the last six years for the furnishing of ballots •at public expense were not dictated solely by a purpose of insuring the secrecy of the vote. This could largely, if not wholly, be .accomplished by other provisions of the election law. These provisions proceeded mainly from an intention to prevent the assessment of candidates for public office, political organizations,' for large sums, under the guise of necessary or proper election expenses, and the expenditure by candidates of large party contributions. In this the spirit of the election law is the exact reverse -of the village act. By the latter act, the persons interested in the promotion of the incorporation of the village are compelled to defray all the expenses attendant the proposed incorporation. The promoters must have the survey map and description made and the census taken; they must post and advertise the requisite notices, and provide the place for holding the election. I find no provision for reimbursing the promotors, even when the village is incorporated. It seems the plain intent of the statute that the whole expense of the proceedings to incorporate a village should 'be borne by those interested in affecting the corporation. It would be extremely difficult to apply to such proceedings the machínéry of a statute framed on lines directly the reverse. If the latter statute applies, the expense of the election would fall upon the whole town, probably in all cases, but at least when the ■incorporation failed; yet the election, as in this instance, might only affect a portion of the town. The village act also provides a perfect system of its own for reviewing the election held under its provisions. There is another consideration not without weight. The evils which the various ballot and election acts have been framed to prevent have related to party politics, and the election ■of candidates for office, and those evils have existed but to a ■slight extent, if at all, in elections to determine other public questions. No amendment made by the act of 1895, other than that •of section 83, has any effect on the question before us. Section ■'80 still remains unaltered, prescribing that official ballots shall be furnished at public expense for elections at which.public officers are to be elected. Section 83 may well be limited to the same -class of elections. For these reasons I think the provisions of the act of 1870 are still in force, and that the election was properly •conducted.

_ The order appealed from should be affirmed, with $10 costs and •disbursements. '"

All concur.


author: McADAM, J.

text:
    Lyungstranda, Resp’t, v. William Haaker Company, App’lt.

      (Supreme Court, Appellate Term, First Department,

      Filed March 23, 1896.)

    1. Bailment—Lien.
    A mere volunteer, who accepts tfye temporary custody of goods, without, any agreement on the subject, has no lien for compensation.
    2. Counterclaim—Replevin.
    Such volunteer cannot, ip- replevin, plead storage or money advanced to-en ablé plaintiff to buy the goods or due for labor thereon as counterclaims.
    8. Trial—Waiver.
    Where evidence is admissible to sustain defendant’s claim of lien, an objection to it as supporting the counterclaim, is not waived by a failure to-object. ,
    4. Appeal—First instance. ""
    Where, pleadings are oral and the defendant goes to trial without compelling plaintiff to make an election of- the form of action, he cannot urge-objection for the first time on appeal. . .....
    Appeal from. a. judgment in favor plaintiff
    A. 0. Shens,toq,e, for app’lt; Gr. B. Dupn, for resp’t'
   McADAM, J.

Upon joining issue,, the plaintiff stated-, as bis-, complaint,, copversion of hip property, valued at, $100. The defendant in,terpo.sed. a general- denial, apff counterclaimed, $75 for moneys advanced to. enable the plaintiff to purchase the property, $3.09 for labor thereon, $1.55 for empty bárrele, thirty cents for rock salt, and $9.75 f°r storage., Th.e. plaip.tiff testified that the-$75 said to have been advanced was paid, to him in anticipation of- services, to be rendered by him, and, tfipt all the items of the-alleged, counterclaims, except that for storage, were charged to* hjm by-the defendant op an. account he had with it as- his employer.

The justice,eyidjently-pdfopted thjs yipw,.bpcause; he fpund for the plaintiff, holdipg that the defendant had- no lien on the. prop-, erty, No agreemept to pay. storage was. proved-, and, as the. defendant did not keep a. storage warehouse,, nope cap be implied.. Alt v. Weidenberg, 6 Bosw. 176. As, wag spi-d in Rivara v. Ghio, 3 E. D. Smith, at page 267:

“ When, the law renders it the duty of one to.receive-and keep,., it gives him a lien upon the goods for the compensation. But aj mere volunteer, under no.-such obligation, accepting the- tempo-} i-ary custody of the goods, without any agreement op: the subject; has pp such lien, He. may or may not, apcording to- circumstances, be entitled to compensation as for work and labor, etc., asupop.a quantum.meruit, but hp bag no lien,”

See, also, Alt v. Weidenberg, supra; Grinnell v. Cook, 3 Hill, at page 491.

The adjudication did not impair the defendant’s counterclaims; at independent causes of action against the plaintiff, for the decision of the justice, in effect, was that, although they might exist in that form, they were not, under the circumstances, available to the defendant in this action, because they did not arise out of the transaction set forth in the complaint, nor were they connected with the subject of the action. Code, § 501. It is claimed, however, that the counterclaim should have been allowed, because facts in support of it were proven without objection. As such proof was, however, admissible to sustain the defendant’s claim of lien, no waiver of the objection to it as supporting the counterclaim can be urged by failure to object.

The form of the judgment has been criticised by the appellant, in that the complaint was for conversion of property, and the judgment in form for replevin for its possession, or its value in case possession cannot be had. The pleadings were oral, and the complaint fails to disclose whether the action is in replevin or trover; but, as conversion would authorize an action in either form, it cannot be said that the judgment is unwarranted. Morris, Repl. 63. The distinction between replevin and trover applies to the-effect of the remedy, not to the principles which govern in determining the question of right. Wells, Repl. § 47. If the plaintiff' had declared in trover, the form of the action would have been apparent; but he did not. He declared for the wrong done; and as the defendant appeared in the action, the plaintiff was entitled, under his form of complaint, to such relief as the facts warranted. The defendant might have compelled the plaintiff to elect as to the form in which he would proceed, or to make his complaint, more definite in that regard; but it did not adopt either course, and went to trial on the pleadings as they were. It cannot find fault with them for-the first time on appeal

The action must now be regarded as in replevin for the possession of the articles claimed. The justice evidently so considered it. The claims set up by the defendant must have been addressed to the right of possession, with a view of defeating the-action; for, as claims against the plaintiff upon independent contracts, they were not pleadable to such an action. People v. Willis, 5 Abb. Prac. 205; Rochester Distilling Co. v. O’Brien, 72 Hun, 462; 55 St. Rep. 149; Walker v. Am. C. Insurance Co., 143 N. Y. 167; 62 St. Rep. 191. The answer, so far as if attempted to set up a lien to the extent of the claims, was good as a defense, but not as a counterclaim. Id. The justice held there was no lien, and therefore no defense was established, and found for the plaintiff.

The judgment must be affirmed, with costs. All concur.


text:
    In the Matter of Petition of James Talcott to Prove Claim Against Hector M. Hitchings, as Assignee, etc., of Orlo Atwood & Sons.

      (Supreme Court, Appellate Division, First Department,

      Filed April 10, 1896.)

    1. Assignment fob creditors—Claim of factor.
    A factor, with property of his principal in his possession, cannot, on-assignment of his principal for benefit of creditors, have his claim for ad=vanees established at the full amount remaining unpaid at the time of the assignment, and take his dividend thereon from the estate, and then apply the proceeds of the further sales of the property to the payment of any balance that may remain unpaid after such dividends are so applied.
    3. Appeal—First instance.
    The relief cannot be claimed on appeal upon a theory not urged and founded bn issues not raised on the trial.
    3. Costs—Allowance.
    Where a person fails to prove his claim against an assigned estate, an allowance against him of $500, for attorney’s fees is excessive, where the trial is not a lengthy one.
    Appeal .from a judgment disallowing the creditor’s claim and «charging him with costs and $500 counsel fees.
    The claim was presented to the assignee, who refused to allow it. Thereupon the claimant applied to the court, by petition, for an order of reference to adjudicate as to his claim. The assignee made answer to the petition, and thereupon the .reference was -ordered to hear, try, and determine the issue made as to the allowance of the claim. . The referee reported that the assignors, in 1892 and 1893, were manufacturers of ribbons, and the claimant was a commission merchant in the city of New York; that in December, 1892, an arrangement was made, between the assignors .and the claimant, under which goods manufactured by the assignors were, consigned to the claimant, who received them for sale on nn agreed commission; that between December 1, 1892, and August 3, 1893, when the. assignment was made, the claimant recei-: .ved large quantities of manufactured goods for sale on commission, pursuant to such arrangement, upon which claimant made large advances of money to the assignors; that during the same time the claimant made large sales of such goods for the account of the assignors, and applied the proceeds, exceeding $60,000, ini reduction of his advances tó the assignors and his charges for. interest and commissions; that, after assignment, the claimant presented to the assignee the claim, in due form, against the assigned •estate for the sum of $90,599.29, being the sum claimed by him to be due from the assignors on account of advances, interest, and ■commissions at the date of the assignment, which claim the as-; signee refused to allow, but rejected; that, since the assignment, the claimant has continued to make sales of the consigned goods, ■but a considerable portion thereof remained unsold, and in the ■possession of the claimant. Upon these facts the referee decided that the claimant vías not, at the time, entitled to prove such claim! Against the estate, and his claim should be disallowed, with costs' Against the claimant. Upon this report the judgment appealed) from was ordered by the court, confirming the report disallowing, the claim, and charging claimant with costs of the proceedings $227.50, and counsel fees, $500. From that judgment this appeal! is taken.
    Lyman B. Bunnell and Theron Gf. Strong, for app’It; George! W. Stephens, for resp’t.
   WILLIAMS, J.

This was a proceeding to determine the validity oE a claim against an assigned estate, under section 26, chapter 466, Laws of 1877, which provides that the court or judge may, in its or his discretion, order a trial by a jury or before & referee of any disputed claim or matter arising under the provisions of the act, and may award reasonable costs and counsel fees, and determine which party shall pay the same.

The claim made by the claimant, as appears by his petition, was for an indebtedness owing and due by the assignors to him at the time of the assignment. The assignee denied that there was any such indebtedness, and that was the issue tried before the referee. There was no suggestion in the petition, as there seems to be on ' this appeal, that the claimant desired a reference to ascertain the amount of his lien upon the property in his hands for advances, .to the end that the property subject to the lien might be applied to pay the same. What he asked for was that the claim against the estate might be adjudicated and determined, to the end that he might have his distributive share of the estate; and the order of reference directed the issue raised by the petition and answer to be so referred and heard and determined. The trial, as it took place, was of the issues so made; and the report was upon such issues alone. It is too late, now, upon appeal, for the claimant to ■allege that, while he may have been properly beaten upon the issue made and tried, still he should have had relief, by way of an ■accounting, as to the amount of his lien upon the property, to the end that the property might be applied in payment, of the .same.

The decision of the referee as to the issue raised and tried before him was correct. The authorities cited by both parties held that, under such an arrangement as existed between these parties, resort must first be had to the fund or the consigned property for the payment of any advances made, before the principal can be made liable, and that it is incumbent upon the factor to show the fund to be insufficient to repay the advances, before a recovery can be had against the consignor personally. Corlies v. Cumming, 6 Cow. 184; Gihon v. Stanton, 9 N. Y. 477; Blackmar v. Thomas, 28 N. Y. 67. In the case of Gihon v. Stanton (above), it was said hy Judge Selden:

“ An ‘advance’ is something which precedes * * * As applied to the payment of money, it implies that the parties look forward to a time when the money will be due to the recipient. -» -s * An advancement by a factor is a prepayment, a mere anticipation of the avails of the goods consigned, and no more creates a debt in the first instance than an advancement by a father to his son, in anticipation of his expected inheritance, creates a debt.”

The real contention of the claimant at the trial was, as it is on appeal, that he was entitled to have his claim for advances established at the full amount remaining unpaid at the time of the assignment, and to take his dividend thereon from the estate, and then apply the proceeds of the'further sales of the property to the payment of any balance that might remain unpaid after such dividends were so applied. He therefore made no attempt to account for any sales of property made after the date of the assignment, though it appeared many such sales had been made. He furnished the referee with no means of ascertaining the amount, unpaid upon his advances at the time of the trial, so that the amount of his lien upon the property at that time could be established, and a decree made with reference thereto.

It is hardly necessary to suggest the case of People v. E. Remington & Sons, 121 N. Y. 328; 31 St. Rep. 289, cited by counsel for claimant, is no authority for the position taken by him at the-trial, "and still maintained, that claimant might prove the full amount of the balance of his advances at the time of the assignment, and take his dividend thereon, and apply the proceeds of subsequent sales of property to the payment of balances remaining after applying the dividend so received'. In that case there-was a debt owing for which the property was pledged as collateral. Here there is no debt, primarily. A debt only comes into-existence after the sale of the- property, and the application of the proceeds, and then the debt is for the deficiency, and that alone can be proved. No debt or claim existed, at the time of the trial, for which this claimant could make proof, and upon, which he could take a dividend from the estate. When the property consigned shall have been- disposed of, he may prove for any balance of his demands -remaining unpaid.

The judgment ordered, by the special term, as far as it dismissed the claim, was correct. The court had power, under the statute, to award costs and counsel fees; and there was sufficient basis, in the affidavits and the certificate of the referee, for awarding such counsel fees. The trial, however, was not a lengthy one, and we think $250 was sufficient in amount- for counsel fees.

The judgment should be modified accordingly, and, as modified, affirmed, with costs of appeal to the respondents.

All concur.


text:
    David Simpson, Pl’ff, v. New York, New Haven and Hartford Railroad Company, Def't.

      (Supreme Court, New York Trial Term,

      Filed April 3, 1896.)

    1. Carbiebs—Liability.
    Where a trunk is accepted without charge, simply as passenger’s baggage, or as containing goods for personal use on. a particular journey, the carrier is not liable for merchandise intended for sale, or even for samples-to effect sales, without notice to the company by the passenger that the trunk contains merchandise for samples.
    2. Damage—Loss of baggage.
    In an action against a company for the loss of baggage, plaintiff is entitled to recover its value for use to him, and not the market value.
    Action to recover- for the loss of a trunk delivered by plaintiff to defendant to be transported as his personal baggage.

      Kantrowitz & Esberg, for pl’ff; H. W. Taft, for def’t.
   McADAM, J.

The plaintiff, on November 22, 1892, became a passenger on defendant’s cars for a business trip from New York to Hartford. The defendant took charge of his trunk, and, although often demanded, it has never been delivered to the plaintiff.

Whether the action be regarded as in tort or on contract (Catlin v. Adirondack Co., 11 Abb. N. C. 377), the defendant’s liability for the loss has been legally established. Zinn v. Steamboat Co., 49 N. Y. 442; Canfield v. Railroad Co., 93 id. 532; Curtis v. Railroad Co., 74 id. 116; Fairfax v. Railroad Co., 67 id. 11; 73 id. 167; Matteson v. Railroad Co., 76 id. 381; Stewart v. Stone, 127 id. 500; 40 St. Rep. 314. The extent of the liability will next be considered. The trunk contained personal baggage; also, merchandise valued at $1,249, consisting of silk mufflers and handkerchiefs, such as the plaintiff was then selling in his business as a dealer in such goods. If the trunk had been accepted as freight, the defendant would have collected charges commensurate with the care required and the risk assumed; but it was accepted without charge, simply as passenger’s baggage, or as -containing goods intended for personal use on that particular journey. In such case the carrier is not liable for merchandise intended for sale, or even for samples to effect sales. Hutch. Carr. § 685. The plaintiff undertook to avoid this feature of the ■defense, and bring himself within Stoneman v. Railroad Co., 52 N. Y. 429; Perley v. Railroad Co., 65 id. 374; Sloman v. Railroad Co., 67 id. 208; and Glovinsky v. Steamship Co., 4 Misc. Rep. 266; 53 St. Rep. 528, by testifying that he told the baggage-man the trunk contained merchandise. The usual demand for compensation did not follow, nor was any suggestion made as to paying freight or extra charges. and the testimony as to notice is altogether too vague and unsatisfactory to warrant an affirmative finding thereon in plaintiff’s favor. See Talcott v. Wabash Railroad Co., 50 St. Rep. 423.

The plaintiff is, nevertheless, entitled to recover for the loss of his personal baggage, which had not been long in use, and cost $54.50. The legal measure of compensation as to the articles lost is what they were worth for use by the plaintiff, not the market value. Fairfax v. Railroad Co., 73 N. Y., at page 172. The original cost may be considered after allowing a reasonable sum for age and depreciation. Jones v. Morgan, 90 N. Y., at page 11; Bird v. Everard, 4 Misc. Rep., at page 106, 53 St. Rep. 210.

It was suggested, at the close of the trial, that the plaintiff, in his pleading, itemized his loss, placing a separate value on each article of about so much, making an aggregate of about $43, and that the recovery should not exceed that sum, especially as the defendant had made an offer of judgment founded upon the items and values so enumerated ; the contention being that it would be prejudiced by a disregard of the plaintiff’s allegations, which were relied upon as controlling against him. 1 Bigelow, Estop. (4th Ed.) 687; Fay v. Muhlker, 1 Misc. Rep., at page 323; 48 St. Rep. 699. “About” means nearly, approximately, almost. , Cent. Diet. The itemized sums fixed by the plaintiff in his verified complaint as the values at the time of the wrong are consistent with the-original cost prices, with his estimate of deterioration by age and' use deducted; and in this manner the plaintiff must, upon every just principle, he held to have concluded himself as to the actual-loss sustained. The figures will harmonize in no other way. Interest may be added to give a full compensation (Mairs v. Association, 89 N. Y. 507; Reiss v. N. Y. Steam Co., 35 St. Rep. 86), and this, with the value, makes $50.74, the damages recoverable,, for which sum the plaintiff is entitled to judgment.