author: O'Brien, J.

text:
    Miles M. O’Brien et al., as Receivers, etc., Pl’ffs, v. Simon Ottenberg et al., Def’ts.

      (Supreme Court, New York Special Term,

      Filed, April, 1894.)

    1. Equity—Accounting.
    An action for an accounting against directors for breach of "their common law duties as trustees of a financial corporation, is one in equity and not at law.
    2. Pleadings—Complaint—Demand fob belief.
    The prayer for relief in the complaint does not determine the nature of the action. Whether the action is legal or equitable, is to be determined by the allegations of the complaint and the relief to which, upon such allegations, the plaintiff would be entitled.
    8. Same —Mobe definite and cebtain.
    It is only where the precise nature of the charge is not apparent that an application to make the complaint more definite and certain is proper.
    Motions to make the complaint more definite and certain.
   O'Brien, J.

These motions, which may be considered together, are made under § 548 of the Code of Civil Procedure, which provides that where one or more denials or allegations contained-in a pleading are so indefinite or uncertain that the precise meaning or application thereof is not apparent, the court may require the pleading to be made definite and certain by amendment”

Section 481 of the Code requires a plain and Concise statement of facts constituting each cause of action, without unnecessary repetition. The complaint here comprises twenty-six folios, and the mere enumeration of the particulars demanded, in which the complaint should be made more definite and certain, contains nineteen folios; and, at first blush, it would seem that the granting of the motion, notwithstanding the rule as to conciseness, would require in this case a most elaborate and long drawn out pleading. i

The error into which I think the defendants have fallen in their argument in support of the motion is in failing to clearly apprehend the scope and theory of the action. It is evident that the complaint is modeled after tlje two cases of Brinckerhoff v. Bostwick, 88 N. Y. 52; 105 id. 567; 8 St, Rep. 196, and Briggs v. Spaulding, 141 U. S. 143. It may be that this error is due in large part to the fact that the pleader has not in all respects followed the form of the complaints in those actions, notably in respect to the prayer for relief, and, growing out of the circumstances of the- complaint stating the damages at $750,000, and demanding in form a money judgment for that amount, the irepression seems to have been created that this was an action at law, instead of a suit in equity.

In this respect the prayer of the complaint differs from the prayers in the two cases cited, as can be seen by reference thereto. In the BrincJcerhoff case the plaintiff demanding judgment that the damages sustained should be ascertained and determined, while in the Briggs case the prayer was specifically for relief. The theory of both of these actions, however, was the same, both being suits in equity for an accounting against the defendants as directors for breach of their common-law duties as trustees of a financial corporation, and they were both held to be actions in equity and not at law. Thus in the Brinckerhoff case, 88 N. Y. 58, Judge Rapallo says: “ The liability of the directors of corporations for violations of their duty of breaches of the trust committed to them, and the jurisdiction of courts of equity to afford redress to the corporation, and in proper cases to its shareholders, for such wrongs exist independently of any statute; n and cites with approval the rule of liability laid down by Chancellor Walworth in Robinson v. Smith, 3 Paige, 222, that “ the directors of a corporation who wilfully abuse their trust or misapply the funds of the company, by which a loss is sustained, are personally liable as trustees to make good that loss, and they are also liable if they suffer the corporate funds, to be lost or wasted by gross negligence and inattention to the duties of;their trust.”

In the same case, Brinckerhoff v. Bostwick, 105 N. Y., 567 ; 8 St. Rep., 196, Judge Peckham, p. 570, referring to this former opinion, says: “ This action has already been held by this court to be an equitable one.” So in Briggs v. Spaulding, supra; it was said that “ the bill was framed upon the theory of a breach by defendants as directors of their common law duties as trustees of a financial corporation, and of breaches of special restrictions and obligations of the Hational Banking act.” And it will be seen that in that case, where a number, of directors were joined, it proceeded as a suit in equity to compel the directors respectively to account for their part in having, through negligence or misfeasance, permitted a waste or loss of the assets of the bank.

The fact that in this case the prayer for relief is similar to that in an action at law, and demands a money judgment, is not conclusive upon the form of action, it having been many times held that the court is not bound or controlled by the prayer for relief; but the question whether the action is legal or equitable is to be determined by the allegations of the complaint and the relief to which upon such allegations the plaintiff would be entitled. Valentine v. Richardt, 126 N. Y., 277; 37 St. Rep., 12. So here, there is not the slightest doubt that the complaint alleges a cause of action against the defendants as directors of the Madison Square Bank, out of which it is claimed the right accrués to recover damages from them on the ground of their misfeasance in office, in that by their negligence the property of the bank became dissipated and lost. It is in substance, therefore, an action in equity to compel the defendants to severally account for such loss to such an extent and amount as each individually may have suffered or permitted the same.

The argument based upon the ground that these directors performed their duties over widely different periods, requires no discussion in view of the able manner in which that is disposed of, not only in the Brinckerhoff and Briggs cases, but also in the New Jersey case of Ackerman v. Halsey, 37 N. J. Eq., 365.

Another error into which counsel seems to have fallen is in assuming that this complaint states several causes of action. And this, as shown by one of the briefs, seems to have arisen from giving too narrow a construction to the language used by Judge Rapado in his opinion in the Brincherhoff case, wherein he says: “ The causes of action set forth in the complaint are losses and misapplication of the funds of the bank through the negligence and misconduct of its directors.” Brinckerhoff v. Bostwick, 88 N. Y., 56. An examination of the complaint in the action itself, however (which is to be found in volume 25, 1887, of the court of appeals, at the Bar Association), shows that there was but one cause of action against all the directors for an accounting. So here, the action is for the negligence and misfeasance of the directors, resulting in loss and damage.

Having, therefore, in mind the character of the action, we can more intelligently proceed to determine whether the complaint is wanting in definiteness and certainty. The claim that the complaint is not sufficiently definite and certain in stating in what such negligence or malfeasance consisted, seems to me without force, because with great elaboration the complaint states what were the duties of such directors or trustees, and then proceeds to enumerate the respects in which they neglected and illy performed such duties. That it is only where the precise nature of the charge is not apparent that an application is proper to make the complaint more definite and certain, has many times been held. Difficulty sometimes arises in the application of this rule, and this is well illustrated by the case-of Rubens v. Ludgate Hill S. S. Co., 21 Abb. N. C. 464; 17 St. Rep. 17, which has been referred to as controlling authority by the defendants. In that case the complaint, in an action against a common carrier of goods for negligence, alleged that “ the defendant so negligently and carelessly misbehaved itself in transporting said fur that' the same was dam°aged,” etc. It was held that this was not sufficiently definite, because it did not show the character of the negligence, whether it was by improper stowage or careless handling or negligent exposure, or by any of the numerous acts, omissions and circumstances by which negligence would be made apparent. It was ac•cordinglv held in that case that the complaint was not sufficiently definite or certain.

The distinction between that case and this consists in the fact that, while there negligence was generally averred, here, charges are stated in general terms, the complaint continues with a more specific statement of facts which definitely state the various charges made, and the respects in which the defendants were negligent and wanting in their duty as directors. Thus there is no uncertainty as to the specific charges made against them, the complaint .stating, among other things, that they did not keep or cause to be kept correct books of account, but permitted them to be falsified, by false and deceptive entries; that they suffered and permitted various persons, firms or corporations, who were insolvent and irresponsible, to overdraw their accounts; that they negligently suffered the moneys of the bank to be loaned to irresponsible firms; that they did not employ honest and competent persons as officers of said bank; that they neglected to require and keep good the security for the faithful performance of the duties of the president and officers and employes of the bank; that they neglected and failed to make personal examination of the conduct and management of the affairs of the bank, and into the character of the securities held by it as collateral, and of the propriety of the investments made by the bank; that they neglected and failed to take sufficient security for the loans made by the bank, taking as collateral security stocks and bonds of insufficient value, and in many cases taking no security whatever; that they negligently and carelessly permitted the officers and directors to largely borrow the funds of the bank for themselves, or for members of their families, and to loan to relatives or friends large sums without security or upon insufficient collaterals; and various other specific charges which it is unnecessary to enumerate. If, to make the complaint definite, in addition to these the pleader is bound to insert the numerous particulars demanded, it would require not only a setting forth in the complaint of all the particulars as to time, place and circumstance, but as to some of the charges a setting forth of the evidence.

My conclusion, therefore, is that, though it would have been better if the prayer had been so framed as not to obscure the character of the action, or leave it in the slightest degree indefinite, still it is not open to the criticism of being so indefinite and uncertain that the defendants are not apprised of the charges made against them, and that in making the motion they have lost sight of the distinction between-the relief which is to be secured by a motion to make definite and certain, and through a bill of particulars.

' Motion denied, with ten dollars costs.


source: Caselaw Access Project

author: Dugro, J.

license: Public Domain

text:
    William J. Brewster, Resp’t, v. George H. Wooster, App’lt.

      (New York Superior Court, General Term,

      Filed April, 1894.)

    1. Evidence—Unsworn statement.
    In an action to recover the value of property transferred by plaintiff, on the ground of an alleged breach of a contract, whereby the plaintiff and his associates agreed to purchase certain machinery and goods from the defendant, and each to pay a certain proportion of the price in satisfactory value, or by conveying real estate, an unsworn appraisement of property conveyed by one of the other parties to defendant, made by a third person, is inadmissible.
    2. Damages—Contract.
    In the absence of the return to the defendant of the property, jointly received by plaintiff and his associates, the plaintiff’s recovery, "in an action by him alone for the value of the property delivered by him, should be limited to the value of his property, less the value of the goods delivered by the defendant to the plaintiff and liis associates.
    Appeal from judgment in favor of the plaintiff, entered upon the verdict of a jury. Action to recover the value of property conveyed by plaintiff to the defendant under a contract for the purchase of certain machinery and goods from the latter by the plaintiff and two others.

      This contract provided that each of the purchasers should pay a proportionate share of the purchase price in satisfactory value, or by the conveyance of real estate. The plaintiff and his associates paid the purchase price, but it is claimed that the defendants failed to comply with the terms of the contract and did not transfer all of the property called for by it. On the trial of the action, an unsworn appraisement, made by one James Lawrence, as to the value of the real estate conveyed by one of the plaintiff’s associates, was admitted under objection.

      Thomas B. Browning, for app’lt; Arnoux, Bitch & Woodford, for resp’t.
   Dugro, J.

I think it was error which, under the law of the case bearing upon the rule fixing the amount of a recovery (as laid down in the charge), may have prejudiced the defendant, to admit in evidence a copy of the appraisement made by Mr. Lawrence. This paper was offered and read in evidence against the objection of the defendant; it was not competent evidence as to the value of the property referred to in it, and may have mislead the jury in that regard.

That the plaintiff’s counsel offered and made use of it as such evidence, and endeavored by it to influence the jury in determining the value of the One Hundredand Thirty-third street property, is evident from his cross-examination of the witness Brown. “ Q. Do you know Mr. J. A. Lawrence, the broker who was an appraiser for the Mutual Life * * * ? A. Only by reputation. * * * Q. * ' * * by hearsay was not his reputation that of an excellent appraiser ? ”

These questions could have no purpose other than to induce the jury to consider Lawrence’s appraisal as evidence of value, and such consideration was improper. That the amount of the verdict is not excessive is by no means certain ; under what we believe to be the true rule of law applicable to the amount of the recovery, it seems that it is. It is, however, unnecessary to pass upon this question.

The learned trial judge in charging said, regarding the rule as to the amount of arecovery, “If you find for the plaintiff you must deduct from such sum as you believe to be the value of the equity in the Fifty ninth street house, of the horses, * * * the value of the goods which the plaintiff sold and received money for unless you find that the defendant has already been compensated in that regard by the property received from either Bateman or Brown, or both of them, in which case the law would not require you to make that deduction from the value of the property which you believe the plaintiff parted with.”

This portion of the charge was not objected to, and so was the law of the case at the trial. It may be well to refer to it now, that upon a new trial it may not prove misleading.

It appears that plaintiff and his associates jointly received defendant’s property. In the absence of its return to the defendant, the recovery of the,plaintiff, as the case stands, ought to be limited to the value of the property he delivered to the defendant, less the value of the goods delivered to the plaintiff and his associates by the defendant. This rule seems the proper one applicable to the case. If it were otherwise the plaintiff could not gain an unfair advantage over his associates or the defendant. If he chooses to bring an action not making his associates parties, and making no arangement equivalent to a return of the goods not taken by defendant, he must bear the burden of the conditions.

Upon the whole case I think that justice requires that the judgment should be reversed and a new trial ordered, with costs to abide the event

■Judgment reversed and new trial ordered, with costs to abide the event.

Sedgwick, Ch. J., concurs.


text:
    Herman Russ et al., App'lts, v. Eliza Stratton et al., Def’ts. The Lawyers’ Title Insurance Company, Resp’t; Louis E. Fraser et al., App'lts, v. Minnie Duncan et al., Def’ts. The Lawyers’ Title Insurance Company, Resp’t.

      (New York Superior Court, General Term,

      Filed April, 1894.)

    1. Parties—Corsequertial ihterest.
    A person, who has no interest in the subject of the action, but only in the question involved therein, is not entitled under § 452 of the Code, to be made a defendant.
    3. Same—Power oe special term.
    The special term has power to direct a person to be made a defendant, though not required to do so by said section, but should not grant the application where he has a fair opportunity to protect his interest without being made a party.
    Appeal from order making the Lawyers’ Title Insurance Company a party defendant. Action to redeem lands from the lien of a mortgage which had been foreclosed. After the action was commenced, the title insurance cbmpany, which had insured the title of certain of the defendants derived through the foreclosure sale, made application to. be made a party defendant, claiming to have an interest in the subject matter of the action and in the real property, which application was granted.

      1). I'L Porter, for app’lt; Parsons, Shephard & Odgen {David B. Odgen, of counsel), for resp’t.
   Dugro, J.

The respondent was not entitled to be made a defendant by virtue of § 452 of the Code of Civil Procedure. The subject of the-action is the real property, and in this the respondent has no interest. Its interest is only in the question involved in the action, and this is not the interest to which § 452 refers; a consequential interest will not suffice. Barb. Parties, 488.

The special term had power to direct the respondent to be made a defendant, though not required to do so by the Code provision. White's Bank of Buffalo v. Farthing, 101 N. Y. 344; 1 St. Rep. 15. But naturally this power ought not to have been exercised except for sufficient reason ; the papers disclpse none. There is no charge of misconduct against the insured, nor does there appear to be any reason to doubt that the respondent will have a fair opportunity to protect its interest without being a defendant. Under the circumstances the motion should not have been granted. Davies v. Fish, 47 Hun, 314; 13 St. Rep. 554.

Sedgwick, Oh. J. and G-ildersleeve, J., concur.

Order reversed, with ten dollars costs and disbursements.


author: Bookstaver, J.

text:
    Caroline Jaeger, as Executrix, etc., Pl’ff, v. The Bowery Bank of New York, Deft.

      (New York Common Pleas, Special Term,,

      Filed April, 1894)
    Executors—Counterclaim.
    A demand against the decedent, falling due after his death, is not available as a counterclaim in an action, by the executor, either at law or in equity.
    Action by executrix to recover deposit of $1,620.48 left by her testator in defendant bank. Oountercla"'m for $3,000, the face value of a note which defendant had discounted for the testator, and which fell due after his death, but before this action was begun.
    The defendant alleges that the estate is insolvent. Plaintiff demurs.

      Abraham L. Jacobs, for pl’ff; James R. Marvin, for deft
   Bookstaver, J.

On a more careful consideration of this demurer, I have arrived at the conclusion that it must be sustained.

The question presented is twofold. Has the defendant a right to counterclaim under § 506 of the Code of Civil Procedure or, if not, has he such a right on equitable grounds ?

The language of § 506 is that a counterclaim may be set up against an executor, “ as if the action had been brought by the decedent in his lifetime.” Had this action been brought by the ■decedent in his lifetime, this counterclaim would not h‘ave been •available because not yet in existence.

Had the meaning of the statute been that the counterclaim could be set up as if the decedent were still living and brought the action it would have been easy to say as much.

In speaking of 2 R. S. 355, § 23, in Jordan v. Nat. Shoe & Leather Bk., 74 N. Y., 467, 474-5, the court said: “We think that the statute means that for a demand to be set off against an executor or administrator in an action brought by him it must have been due and payable from the decedent in his lifetime.” And further on : “It is claimed that § 506 has made a change in the law. It is plain that it has, in words. We are not called upon to say whether or not it has in substance.” That it has not is the view taken, and I think correctly, by Mr. Throop in his note on counterclaims in 3 Civ. Pro. Rep. (p. 226), and by Mr. Ramsey in his work on practice (vol. 1, p. 367); see also, Ewart v. Bk. of Monroe, 70 Hun, 90; 53 St. Rep. 497; Wakeman v. Everett, 41 Hun, 278 ; 2 St. Rep. 643 ; Patterson v. Patterson, 59 N. Y. 574 ; Taylor v. Mayor, etc., 82 N. Y. 17.

Neither does this seem a proper case for the exercise of the-equitable powers of the court in the defendant’s favor. On the contrary, to allow this set cff would he unfair to other creditors whose claims existed at the death of the decedent or matured before the defendant’s.

Had the'decedent lived he might have drawn this deposit and satisfied such prior creditors, og, they might have reached it by judgment and execution. Against both of these chances the defendant now asks to profit, and to be allowed to come in and take-all of a fund which other creditors, by reason of their earlier right, might have had to his exclusion but for the accident of the debtor’s death.

In Fera v. Wickham, 135 N. Y. 223, 227 ; 47 St. Rep. 866, it was said : “ By an assignment in trust for the assignor’s creditors, what natural equities previously existed became suspended by an intervention of the rights of other creditors.” By analogy the death of an insolvent debtor has the same effect in a case like the present.


author: Osborne, J.

text:
    Albertina Phillips, Resp’t, v. Isaac Ehrman, App’lt.

      (Brooklyn City Court, General Term,

      Filed April, 1894.)

    Landlord and tenant—Repairs—Damages.
    Where the landlord, on leasing the upper portion of his building, covenants to do all repairs, and, on notice, promises but fails to repair the roof on which the tenant has no right to go, whereby the latter’s furniture and chattels are injured, the measure of damages is the injury done to such property.
    Appeal from judgment in favor of the plaintiff, entered upon a. verdict.

      Fernando Solinger for app’lt; Henry C. Botty, for resp’t.
   Osborne, J.

Defendant owned certain premises in this city, a portion of which he'occupied'with his family, and the rest was let out. Plaintiff, early in January, 1893, hired by the month and went into possession of three of the rooms on the top floor at a monthly rent, payable in advance; defendant also agreed, as plaintiff testified, to do all repairing.

It appeared from plaintiff’s evidence that in the latter part of January the roof leaked so as to cause a portion of the ceiling in one of her rooms to fall; that defendant,, when- his attention was called to it, promised to have the roof fixed the same day, and subsequently told her that he had had it repaired : that early in February the roof leaked again ; plaintiff told defendant of it, and he replied, “ Well, we will have it repaired; ” that early in the morning of February 22nd, during a heavy rain storm, the water again poured through the roof into plaintiff’s apartments, causing the ceiling to fall and seriously damaging her household effects and clothing.

Plaintiff brought this action to recover damages caused to her furniture and chattels, and had a verdict. Defendant appeals from the judgment entered thereon, and-his main contention is that he was not liable for any damages to plaintiff’s chattels caused by the leaky condition of the roof, but that the measure of any damage sustained by the plaintiff was either the amount that it would have cost to make the necessary repairs, which the tenant had the right to deduct from the rent, or the difference in rental value of the use of the premises caused by the neglect to repair. The learned counsel for the appellant cites several authorities in support of his contention, but no one of them appears to us to be applicable to the case before us. That a tenant cannot deliberately leave his property in a building and expose it to injury from storms or otherwise, when he knows the roof is leaky and defective, and look to the landlord for indemnity, is well settled, Cook v. Soule, 56 N. Y. 423, but the case at bar is different. Plaintiff was a tenant of only a portion of the upper floor of defendant’s building, and she had no right to go on the roof to make repairs. On two occasions when the roof leaked she had called defendant’s attention to its condition, and he told her that he would have it fixed, and plaintiff, in reliance on defendants promise, was induced to remain and continue her tenancy. She was justified in assuming that defendant had fulfilled his promise, and was ignorant that the roof was in a defective condition till the storm came which produced the damage complained of. Under these circumstances, we think that the defendant became liable for the damages suffered by plaintiff, for it was in consequence of his failure to put the roof in proper repair, as he agreed to do, that plaintiff was damaged. That défendant failed to properly repair the roof is, we think, abundantly shown by its utter insufficiency to shield plaintiff’s property from the storm of February 22nd. We are not unmindful of the fact that defendant contradicted plaintiff on many material points in her testimony, but those disputed questions were left to the jury, and they have decided them in favor of the plaintiff. There are no exceptions in the case that seem to us to call for any discussion. The judgment should be affirmed, with costs.

Clement, Oh. J., concurs.

Judgment affirmed, with costs.


author: Van Brunt, J.

text:
    Katharine L. Knox, Resp’t, v. Henry Nobel, App’lt.

      (Supreme Court, General Term, First Department,

      Filed April, 1894.)

    1. Executoes, etc.—Infant.
    Letters of administration, issued by a surrogate to a minor, are void.

      2. Same—Contbacts.
    A contract, entered into by a minor so appointed is void, so far as it attempts or purports to bind the estate.
    3. Same—Action to set aside.
    In such case, the minor has a cause of action to set aside a sale purporting to have been made by him as administrator, in order to relieve himself from any claims which might be attempted to be enforced.
    Appeal from interlocutory judgment overruling demurrer to the complaint.

      E. Eoyt, for app’lt; L. Birdseye, for resp’t.
   Van Brunt, J.

This action is brought by the plaintiff individually to set aside a sale attempted to be made by her as the administratrix of her deceased husband, upon the ground that at the time of granting the letters of administration she was a minor, and that the sale was made under the fraudulent representations and inducements of the defendants, and that the consideration paid was inadequate.

The main question involved upon this appeal is whether letters of administration issued by the surrogate to a minor are or are not void.

It is urged that, as it is well established that the granting of letters of administration by the surrogate are conclusive as to his jurisdiction, the question as to the eligibility of the plaintiff to the office of administratrix cannot be inquired into collaterally. ' We think that the question as to whether, the plaintiff could legally be appointed administratrix of her deceased husband, she being a minor, has no relation whatever to the question as to the jurisdiction of the surrogate to grant letters of administration ; and here is where" the confusion has arisen.

An examination of § 2660 of the Code, as it existed at the time of the issuing of the letters of administration in question, will show that the eligibility of a petitioner to appointment as administrator hah no connection with the facts upon which the jurisdiction of the surrogate’s court to grant letters of administration upon the estate depends. The section says: “ A person entitled absolutely or contingently to administration upon the estate of an intestate may present to the surrogate’s court having jurisdiction a written petition, duly verified, praying for a decree awarding letters of, administration either to him or to such other person or persons, having a prior right, as may be entitled thereto, or in the alternative as the petitioner elects ; and if necessary that the persons required in the next section but one, may be cited to show cause why such decree should not be made. The petition must set forth the petitioner’s title ” (if is clear that what is meant by this provision is the relationship under which the petitioner claims) “ the facts upon which the jurisdiction of the court to grant letters of administration upon the estate depends; and the names of the husband or wife, if any, and of the next of kin of the decedent, so far as they are known to the petitioner ór can be ascertained by him with due diligence.”

It is thus seen that the facts upon which the jurisdiction of the court to grant letters depend do not include the petitionerls title, and were not intended to include the petitioner’s title, and are, by the very language of the section, excluded. And, therefore, when it has been held that the grant of letters of administration is conclusive as to the surrogate’s jurisdiction it has only been decided that the granting of such letters is conclusive as to the facts upon which the jurisdiction of the court to grant letters upon the estate depend, and, as already seen, the petitioner’s title is not one of them, nor is the petitioner’s eligibility to the office. While, therefore, the decree of the surrogate is conclusive as to all the facts necessary for his jurisdiction, it imports nothing as to the eligibility of the person to whom the letters are issued. The statute expressly prohibits the granting of letters to a person convicted of an infamous crime, or to one incapable of making aeon-tract, or to a person who is under twenty-one years of age, etc. Gan it be said that the surrogate by his ipse dixit can repeal the statute, it being manifest that the question of the eligibility of the person proposed to be appointed administrator is not one of the jurisdictional facts? It would be a monstrous proposition to hold that any judicial officer can, by his mere will, override the express prohibitions of the statute.

The question of the age of this petitioner was in no respect presented to the surrogate for adjudication ; no such issue was before him, and his jurisdiction to appoint an administrator did not depend upon any such inquiry. And in this respect the case at bar differs from those of Roderigas v. East River Savings Bank, 63 N. Y. 460, and 76 N. Y. 316, and Bolton v. Schriever, 135 N. Y. 70; 47 St. Rep. 870.

In those cases the question before the surrogate was as to his right to act at all, and he having determined the question of jurisdiction, it was held that such adjudication could not be attacked collaterally. The right of the surrogate in the case at bar' to appoint an administrator could not be attacked collaterally; but when he selects a person whom the statute saj's he shall not appoint as such administrator, after having determined to appoint such an officer, his act is absolutely void. Such was the rule laid down in Carow v. Mowatt, 2 Edw. Ch. 58, in which it was held that not only was the appointment of a minor void, but he could not be called to account for any portion of the estate which he had received. It seems, therefore, reasonably clear that the appointment by the surrogate of the plaintiff was void; and that the contract, as far as the plaintiff attempted to bind the estate of her husband, was also void.

But it is a familiar principle that a person attempting to enter into a contract in a representative capacity, having no authority to enter into the contract as the administratrix of her husband, because of the invalidity of her appointment, she would have been held individually had it not been for her minority. And even if the contract was entered into at a time when she was a minor, unless repudiated within a reasonable time after she became of age she might be held upon it. The plaintiff, by this action, comes into court and seeks to disaffirm the contract, alleging that it was entered into while she was a minor, further alleging that it was obtained by fraud, and that she seeks to avoid the personal responsibility which would arise against her because of her entry into the contract, as administrator of her husband, without having the authority so to act.

It seems to us that she has a right to maintain this action to relieve herself individually from any claims which might bo attempted to be enforced against her. The estate which she assumed to represent has no interest in this question. It is not bound by the contract and is not at all interested the question as to whether the plaintiff individually is or is not so bound. She alone is interested in the question as to whether she is to be liable to the defendants for damages in attempting to enter into a contract without authority.

We are of opinion, therefore, that the judgment should be affirmed, with costs, with leave to defendants to withdraw demurrer, and, on payment of costs of court below and of this court, to answer. - "

Pollett and Parker, JJ., concur.


author: Sedgwick, C. J.

text:
    Ellen Bonden, App’lt, v. George Lewis Prentiss, as General Guardian, etc., Resp’t.

      (New York Superior Court, General Term,

      Filed April, 1894.)

    1. Execution—Void.
    Ad execution issued on the day of, hut after, the debtor’s death is void. 3. Time—Computation.
    The law takes notice of fractions of a day when there are conflicting rights.
    Appeal by defendant from a judgment entered upon a decision of a judge at special term.

      Benjamin Patterson and George Bell, for app’lt; William B. Wilder, for resp't.
   Sedgwick, C. J.

The action was in the nature of a creditor’s bill, designed to reach real property that had been conveyed by the debtor to the defendant. The plaintiff, in order to succeed in the action, had to prove that an execution had been issued against the debtor’s property, and had been returned nnsatisfied. Adsit v. Butler, 87 N. Y. 585. An execution had been issued and returned, but it was void. It had been levied on the day of the debtor’s death and about five hours after his death. Section 1180, Code Civ. Proc. forbids that being done. Wallace v. Swinton, 64 N. Y. 188.

The counsel for respondent invokes the principle by which in certain cases courts do not take notice of the fraction of a day. They do, however, take notice of them when there are conflicting rights, for the determination of which it is necessary for them to do so. Broome’s Legal Max. 134. First and last, the fact that the judgment debtor had died would be decisive that an execution could not issue.

For this reason the judgment should be reversed, and a new tria), ordered, with costs to,appellants to abide the event.

Freedman and McAdam, JJ., concur.


author: McAdam, J.

text:
    Minnie C. Warren, Pl’ff, v. Lyman E. Warren, Def’t.

      (New York Superior Court, Equity Term,

      Filed April, 1894.)

    1. Divorce—Proof.
    In actions for divorce, courts must take such evidence as the nature of the case permits, whether circumstantial, direct or positive, and, weighing it with prudence and care, give effect to its just preponderance.

      3. Same—Innocent construction.
    The rule that, if the acts of parties are capable of two constructions, one innocent and the other not, the former is to prevail, is not applicable where a combination of circumstances appears, logically pointing to guilt with a potency excluding any other hypothesis.
    8. Same.
    The evidence, in this case, was purely circumstantial, but was deemed sufficient to warrant a decree of divorce.
    Action for absolute divorce on the ground of adultery.

      Hoioe & Hummel, for pl’ff; A. G. Nanz, for def’t,
   McAdam, J.

In actions for divorce, courts must take such evidence as the nature of the case permits—circumstantial, direct or positive, and bring to bear upon it the experiences and observation of life, and thus, - weighing it with prudence and care, give effect to its just preponderance. Moller v. Moller, 115 N. Y. 466; 26 St. Rep. 207.

The proof in this case is not of a direct, but circumstantial nature, depending upon a combination of events of such a consistent and reliable character as to form a complete chain of evidence. It appears that the defendant, after separating from his wife, went to board in a flat occupied by the co-respondent, at the “ Kingston,” No. 100 West Seventy-sixth street. The corespondent slept in the parlor, and the defendant in a room adjoining. Mrs. Brewster, the chambermaid, testified to seeing defendant and co-respondent together in neglige attire; to seeing them kiss and embrace one another; to finding in the defendant’s bed hair-pins and handkerchiefs belonging to the co-respondent, and on one occasion, finding her in his room while he ivas there, both attired in their night dress. It appears that the co-respondent kissed the defendant when he left the house in the morning, and again on his return in the evening; and that she apologized for the proximity of her bed to his by the remark that the defendant was her brother-in-law, and on that account the circumstance was not worthy of comment.

The complaint describes the co-respondent as “ Lilyou Daniels, otherwise Donna Madi.xa, otherwise Mrs. Smith, otherwise Mrs. Abbott,” and it appears that she was also known as Mrs. Beardsley. This multiplicity of names is explained by her as follows: “ Mrs. Daniels” is the name she acquired from her last husband, William B. Daniels, who sued for and obtained a divorce; “Donna Madixa” is her family and professional name; the name “Mrs. Smith” is apparently disclaimed; “Mrs. Abbott" is the name she derived from her first husband; and she assumed the name of “Beardsley” because it was that of her mother.

It appears, also, that after the co-respondent gave up the flat at the “Kingston” she took another in West Fifty-fourth street, on the lease of which the defendant went security, meaning thereby that if she did not pay the rent he would. The relations between the parties were equally as friendly at this flat as in the previous one; Indeed, the only division between the bed-room of the defendant .and that of the co-respondent was a pair of hanging portieres, The co-respondent called the defendant her brother-in-law, and she was known to the janitress as his sister-in-law. She called his daughter her niece, and that was explained by her in this way: “ Mr. Warren’s first wife was an Abbott, and Miss Abbott was my husband’s cousin, and that is the reason why we assumed any relationship whatever.” When asked why she represented the defendant as her brother-in-law, the co-respondent said that “ it was to save a great many inquiries into family affairs connected with Abbott and his troubles with his wife, and several other disagreeable things.” The explanation may have seemed satisfactory to the co-respondent, but it would be mere assumption to infer that it was at all satisfactory to any one else.

It also appears that the defendent took the co-respondent to a theatre on at least one occasion, and it is conceded that he kissed her on his leaving for Europe. The co-respondent on one occasion ordered a hat and had it charged to the defendant, who paid for it. She first denied this, but the testimony as to the fact was overwhelming.

The defendant called several reputable witnesses, who testified that they never saw any acts of familiarity on the part of defendant towards the co-respondent. But their testimony proved nothing, for no one had asserted that these individuals had ever seen anything which might have been a proper subject of comment.. The chambermaid is disinterested, and thei'e is no reason to disbelieve her story, and if that is believed the case is made out.

It is said that if the acts of parties are capable of two constructions, one innocent and the other not, the former is to prevail. Pollock v. Pollock, 71 N. Y. 137. This is certainly the rule, but not applicable where a combination of circumstances appears logically pointing to guilt with a potency excluding any other hypothesis. In criminal cases guilt must be established beyond ■all reasonable doubt, while all that is required in civil causes’ is that there shall be a preponderance of proof—a term which means that the plaintiff must produce evidence which carries conviction to the human mind—a process which in its own peculiar manner dispels doubt.

The defendant and co-respondent professed their innocence, and if it should be that they are innocent of wrongdoing it is unfortunate that they surrounded themselves with circumstances of suspicion evidencing great indiscretion, amounting in legal acceptation to proof of guilt. Defendant was living apart from the plaintiff, his second wife, and the co-respondent was living apart from her second husband. The conduct of either'was liable to be criticised, particularly in view of the fact that the co-respondent at this very time was under charges made by her husband in an action for divorce on the ground of adultery with one Rochfort; and the defendant had been divorced from his first wife. It was unfortunate, therefore, that the defendant and the co-respondent came together under such circumstances, in disregard of the admonition, “Lead us not into temptation." Even the appearance of evil should have been carefully avoided.

The relations existing between the defendant and the co-re.spondent were evidently more intimate than those of boardinghouse keeper and boarder. Why did they assume a false relationship and go to a theatre together ? Did he not appreciate the peril, or did he defy consequences ? The co-respondent admits to smoking cigarettes, and that in the 54tli street house nothing but the portieres divided her bedroom from that of the defendant. The defendant and the co-respondent are educated people, with an intelligence that precludes any idea that they were unconscious that their relations were free from suspicion.

Under the circumstances in this case, it is reasonably clear that the defendant is guilty of the charges made. People are to be judged by their acts, which speak louder than words, and often render subsequent explanations unsatisfactory.

Let us reverse the order of things, and suppose Warren to be the boarding-house keeper, with a suit pending against him by the second wife for divorce on the ground of adultery, and the co-respondent a wife separated from her second husband. Take the fact that she became security for his rent, went to his house to board, was found kissing and embracing him; that they were ' in neglige together; that their rooms adjoined one another; that he was seen in her room in sleeping apparel; that his shirt-buttons and handkerchiefs were found in her bed; that they assumed a false relationship which required explanation; and it also appeared that she went to a theatre with him, and paid for a hat that he had bought and had charged to her—would anyone doubt her guilt? What is the practical difference between the two cases? In worldly affairs the popular view is generally correct, and must be taken, if the world is expected to agree with you; and whenever there is a common accord among men upon a given subject, it is nothing less than the judgment thereon of your peers.

The plaintiff is entitled to the usual decree, to be settled on notice. '


author: Bischoff, J.

text:
    Thomas J. Briggs, Resp’t, v. Nathaniel S. Jones et al., App’lts.

      (New York Common Pleas, General Term,

      Filed May, 1894.)

    1. Conversion—Bailee.
    In an action of conversion, it is the act which is the gravamen; and, when such act is established, a bailee, whether for, or not for, reward, is liable for the conversion of the property bailed.
    2. Same—Demand.
    Where the bailee has no stock of the same character subsequent to the conversion, the cause of action is complete without a demand.
    3. Brokers—Stock—Principal and agent.
    Where brokers, under their contract, have assumed the duty of delivering stock to their customer, a violation by an agent of such duty, so assumed and delegated, is attributable to the principals as their act.
    4. Same—Defense.
    The fact that such agent procured his agency in this particular transaction, by reason of misrepresentation, does not affect the principal’s liability.

      Appeal from a judgment entered upon the report of a referee.'

      Wheeler H. Peckham, for app’lts; Frederick Seymour, for resp’t.
   Bischoff, J.

his is an action for the conversion of 200 shares of stock, the property of the plaintiff, held by the defendants for the plaintiff’s account in their capacity of stock brokers. That error is predicable of the referee’s findings of fact upon the evidence is not, we think, to be successfully urged, and that the case in this aspect is accepted by the appellants seems to appear from the nature of their contention for a reversal. It appears that the stock in question was lost to the plaintiff, when in the custody of the defendants as bailees, under the following circumstances: During the period covered by the plaintiff’s transactions with the defendants’ firm there was in their employ one Thomas Stout, by whom the plaintiff’s business was principally attended to. The stock which forms the subject of this action had been purchased by the firm for the plaintiff, the sum of $10,000 having been paid by him to them for such purpose, leaving á balance due the latter upon the transaction of $1,241.69. After this property had been in the defendants’ custody for a certain period of time, Stout obtained the same, upon the representation thfit the plaintiff had made a call for it. A check, purporting to bear the plaintiff’s indorsement, in the amount owing upon this transaction as above stated, was presented to the firm by Stout, and the stock was delivered to him, with instructions to deliver it to the plaintiff. This indorsement was, in fact, a forgery, and the means whereby Stout obtained possession of the stock were fraudulent as against the defendants. Subsequently, the said Stout disposed of the stock, and applied the proceeds to his own purposes. The referee gave judgment for the plaintiff, and the defendants have taken this appeal, our attention being directed, by the points relied upon, to the correctness of the conclusion reached in view of the finding of fact that the agency of Stout in this particular transaction, had its foundation upon his fraud as practiced upon the defendants.

The recovery rests, not upon any question as to the degree of care which was required of the defendants in the performance of their duty to the plaintiff with its correlative responsibility for negligence, but proceeds upon, the theory that the act of Stout, in exercising unwarranted dominion over the property in question, was attributable to the defendants as his principals. The referee has found that no negligence existed in the appointment and continued employment of Stout by the defendants, so consideration as to the duty of preserving the property, which existed by reason of the nature of the contract, is unnecessary. In an action of trover it is not, as in assumpsit, the omission which forms the gravamen, it is the act, Willard v. Bridge, 4 Barb. 361: and, when such act may be established, a bailee, whether for reward or not, is liable for the conversion of the property bailed. Esmay v. Fanning, 9 Barb., 189. Bearing this distinction in mind, it is apparent that the rule of liability for the theft of a servant in the bailee’s employ, as laid down in Foster v. Essex Bank, 17 Mass., 479; 9 Am. Dec., 168. and similar cases in assumpsit, is not to serve as a criterion in such an action as the present.

The determination of the learned referee was that, under their contract, the defendants had assumed the duty of delivering this stock to the plaintiff, and, for the purpose of fulfilling their duty, authority was by them delegated to their agent. Therefore, a violation by this agent of the principal’s duty, so assumed and delegated, is attributable to the principals as their act. The obvious soundness of this proposition of law is not open to question, (see Story on Agency, § 455, 9th ed.; Quinn v. Power, 87 N. Y. 535; Stewart v. Brooklyn, etc. R. R. Co., 90 N. Y. 588), but it is contended that, by reason of the misrepresentations of Stout in procuring his agency, in this particular transaction, the defendants are not chargeable. This, however, would he a question in no way affecting the plaintiff, but would rest solely between Stout and his employers ; and that liability may be avoided by the principal in such a case was distinctly negatived in Caswell v. Putman, 41 Hun, 521; 4 St. Rep. 106.

There can he no question, upon the evidence, that Stout acted throughout in the capacity of agent to the defendants, and that he was at no time the agent of the plaintiff. In view of the authorities we are not able to hold that the measure of damages adopted by the referee was unauthorized, Wright v. Bank of Metropolis, 110 N. Y. 237; 18 St. Rep. 92, and, upon the undisputed evidence that the defendants had no stock of the same character subsequent to the conversion, the conclusion that the plaintiff’s cause of action was complete when such conversion took place, without a demand, rests upon unquestioned authority. Ganley v. Troy City Nat. Bank, 98 N. Y., 487, 493, and cases cited. The judgment must be affirmed, with costs.

Daly, O.J., and Pryor, J., concur.


text:
    Thomas Briggs, Resp’t, v. Francis J. Kennett et al., App’lts.

      (New York Common Pleas, General Term,

      Filed May, 1894.)

    1. Principal and agént—Ostensible.
    The rule of law, which imposes a liability upon the principal, in a case where injury has resulted through reliance upon an ostensible agency, rests upon the doctrine of estoppel.

      2. Same—Authority.
    The law will infer authority in an agent as well from the general • character of the acts which he has been permitted to perform, as from a special written power.
    3. Same—Damages.
    In an action for fraudulent diversion by an agent of stock delivered as collateral security, the plaintiff is entitled to recover the dividends declared upon such certificates between the date of the deposit and the time of the demand.
    Appeal from a judgment entered upon the report of a referee.

      Wheeler H Peckham, for app’lts; Frederick Seymour, for resp’t.
   Bischoff, J.

This action is brought to recover damages for the breach of a contract of bailment, the subject of the action being 140 shares of stock of the American Telegraph and Cable Company, which are alleged to have been delivered by the plaintiff to the defendants’ agent, one Thomas Stout, to be held as collateral upon such plaintiff’s account with the defendants, a firm of stock brokers. The defense interposed was that no such delivery had been made to the defendants, the issue being practically resolved into a question as to Stout’s agency. . It appears that this individual fraudulently diverted the stock in question, and that it was never received from him by the defendants.

The question of law presented by this appeal relates to the referee’s finding that Stout, in receiving from the plaintiff these certificates of stock, was acting within the scope of his authority as delegated by the defendants, it being claimed for the appellants that this finding is unsupported by the evidence. Upon this question alone is the appeal to be determined, no dispute arising as to defendants’ responsibility for their failure to deliver the stock on demand, in accordance with the contract, should,this agency have existed at the time when the transaction took place. Such the learned counsel for the appellants very properly admits to be true. As to the fact that Stout acted in the capacity of the defendants’ agent, and was not, in so far as the plaintiff was concerned, understood by such plaintiff to be acting as his agent, there is no reasonable room for doubt, in view of the letters in evidence, which formed the correspondence between'plaintiff and Stout with reference to the transactions had by plaintiff with defendants’ firm. The defendants incontestably had knowledge of plaintiff’s dealing with the firm, as appears from the entries in their books and the testimony of the defendant, Hopkins. Further were they aware that these dealings were had through their agent, Stout. As to the contention that they might well consider that. Stout was acting as agent for the plaintiff, we fail to see its bearing-upon the case. If any presumption were to be indulged in this regard, there-being no evidence upon the subject, it would seem to be that Stout was thus acting in the course of his duties to his employers when receiving orders for the firm, such acts being within the scope of his employment, as appears from the defendants’ evidence. At best they would be put upon their inquiry as to the nature of the transaction in this regard. Timpson v. Allen, 7 Misc. R., 323; 57 St. Rep. 558. The action is based upon Stout’s authority, and the rule of law which imposes a liability upon the principal, in a case where injury has resulted through reliance placed upon such ostensible agency, rests upon the doctrine of estoppel. People v. Bank of North America, 75 N. Y. 547. The question turns therefore, upon what justification there existed for the plaintiff’s relying upon 'previous acts of Stout, performed with the-acquiescence of the defendants, when entrusting him with these certificates.

There appears, to have been one instance of a transaction precisely similar to that now in question, but although agency to do a special act is not- to be generally inferred from one instance alone, yet this prior act of Stout's in receiving from the plaintiff negotiable securities and delivering them to the defendants for the plaintiff’s account, without remonstrance from them by reason of his having so assumed this duty, goes far as a justification for the plaintiff’s reliance upon his agency for this purpose. See Graves v. Horton, 35 Northwn. R. 569. In connection with this we have the fact that the plaintiff’s cheques were received by the firm through Stout, who was, in turn, entrusted by them with receipts for funds and stocks to be returned to the plaintiff. On the occasion of a certain change in the firm, it was through Stout that the circular letter and blank transfer of account were received by plaintiff, and through him was the executed instrument of transfer returned to the firm. Further than this, the defendants, at a time prior to this transaction, had themselves entrusted to Stout the possession of negotiable securities for delivery to the plaintiff, which fact has an important bearing upon their own recognition of the extent of his agency.

We are constrained to concur in the finding of the learned referee that these circumstances attending the dealings of the parties established, as between them, an apparent agency in Stout to receive the certificates from plaintiff in the instance now considered. “ An agent’s apparent powers * * * are those with which he is clothed by the character in which he is held out to the world, although not strictly within his commission. Whatever is done under any authority thus manifested is actually within the authority as to third persons, and the principal is bound for that reason.” Mechanics Bank v N. Y. & N. H. R. R. Co., 13 N. Y. 635. The law will infer authority in an agent as well as from the general character of the acts which he has been permitted to perform, as from a special written power. Exchange Bank v. Monteath, 17 Barb. 171, approved, 26 N. Y. 505. And to the same effect is the case of Second National Bank v. Pottier, &c., Co., 18 St. Rep. 955; 56 Supr. Ct. R. 216.

Therefore, that the agency of Stout included an apparent authorization to receive the stock in question is not, we think, to be doubted.

The loss to the plaintiff of the dividends declared upon these certificates, between the date of the deposit and the time of the demand, was properly included in computing the damages, such loss being a direct and necessary result of this breach of contract.”

“ The broad general rule in such cases is that the party injured is entitled to recover all his damages, including gains prevented as well as losses sustained; and this rule is subject to but two conditions: The damages must be such as may fairly be sup-

posed to have entered into the contemplation of the parties when they made the contract, that is, must be such as might naturally be expected to follow its violation ; and they must be certain, both in their nature and in respect to the cause from which they proceed. Griffin v. Colver, 16 N. Y. 494.

This case is clearly within the rule, and the fact that neither the defendants nor Stout are shown to have obtained the benefit of such dividends cannot affect the question. It is the plaintiff’s loss which forms the basis of recovery.

The judgment is affirmed, with costs.

Daly, 0. J., and Pryor, J., concur.


author: Ehrlich, C. J.

text:
    Abram French Company, App’lt, v. Philip Marx, Resp’t.

      (New York City Court, General Term,

      Filed May 18, 1894.)

    Judgment—Default—Opening.
    An application by defendant to vacate and set aside a judgment upon a technical objection as to the plaintiff’s capacity to sue will be denied.
    Appeal from, order setting aside judgment.

      Hayes & Greenbaum, for app’lt; ¡Samuel Mullen, for resp’t.
   Ehrlich, C. J.

The application made by the defendant was for an order vacating and setting aside the judgment herein, and not to open the default as a matter of favor. The application was not founded on any defense meritorious in its character, but upon a technical objection as to the plaintiff’s capacity to sue. The objection did not appear on the táce of the complaint, and was one that could not be urged by way of demurrer, but, in the nature of things, would have to be taken advantage of by special plea in the answer, calling upon the plaintiff to make proof that it had the necessary legal authority to transact, business in this state. We think the application made below should have been denied; if it was granted as matter of right, such decision would be erroneous, and if granted as a matter of favor, the discretion was not wisely exercised. In either case the order appealed from would have to be reversed, with costs.

Yan Wyck, J., concurs.


text:
    William W. Badger, App’lt, v. Isaac Mayer, Resp’t.

      (New York City Court, General Term,

      Filed May 18, 1894.)

    1. Eqity—Elevated Railway.
    In an action against an elevated railway for an injunction and damages, the equitable cause of action fails when the abutting owner sells the property involved.
    3. Attorney and client—Compensation.
    Where an abutting owner agrees with an attorney to give him a part of the recovery for prosecuting an action against an elevated railway company, the latter commences an action for injunctive relief, and the owner by his acts destroys that remedy, he cannot without compensating the attorney for what be has done, compel him to bring a new action for past' damages alone.
    Appeal .from judgment entered on verdict of jury in favor of defendant. .

      W. W. Badger, for app’lt; L. & Marx and & G. James, for resp’t.
   Ehrlich, C. J.

The plaintiff, an attorney-at-law, entered into a written contract with the defendant, the owner of a leasehold estate at 1019 Third avenue, this city, whereby the plaintiff was to prosecute an action by injunction or otherwise against the Manhattan Railway Company, to recover damages to the leasehold interest by reason of the erection and maintenance of a railway structure of the defendant; and it was agreed that the plaintiff was to receive one-fourth of the amount recovered for his services. The plaintiff, thereupon brought an action against the company in the name of the defendant, in which injunctive relief and past damages were prayed for. Pending the action, and after considerable services had been performed therein, the defendant, without any notice to the plaintiff, disposed of his estate in the lands, and as a consequence the right to inj unctive relief was destroyed. Pappenheim v. Met. El R. Co., 128 N. Y. 436; 40 St. Rep. 445; Kernochan v. N. Y. El. R. R. Co., 128 N. Y. 559; 41 St. Rep. 110 ; Foote v. Man. R. R. Co., 58 Hun, 478; 36 St. Rep. 119; Filson v. Crawford, 23 id. 335. In the transfer made by the defendant no reservation was made of the existing right of action ; so that the action brought in the defendant’s name against the railroad company fell directly within these cases. On the trial the plaintiff’s counsel requested the trial judge to charge that the equitable cause of action against the raliroad company failed when the defendant sold the property involved. The court declined to so charge, and the plaintiff’s counsel excepted. Under the rulings made in the cases cited this was error, which was not cured by anything that afterwards transpired. It is settled law that where a party prevents performance of a contract he is liable for damages flowing directly from the breach, and these, in this case, embraced the services which the plaintiff had rendered up to the time he was notified of the fact that the defendant had transferred his property, and that the action commenced had, in consequence, abated. True, the defendant did not, by the act of transfer, lose his claim for past damages ; but the -contract did not confine the plaintiff to that remedy alone, for it expressly provides for proceedings by injunction. Having commenced the action for injunctive relief, and the defendant, by his acts, having destroyed that remedy, he could not, without compensating the plaintiff for what he had done, compel him to bring a new action for past damages alone ; that was not the agreement; and in determining the question of the breach the status of the parties at the time the contract was made fixes their rights and liabilities. For this reason the judgment must be reversed, and a new. trial ordered, with costs to appellant to abide the event.

McCarthy, J., concurs.


author: McCarthy, J.

text:
    Mary C. Bernard, Resp’t, v. United Life Insurance Association, App’lt.

      (New York City Court, General Term,

      Filed May 18, 1894.)

    Insurance—Life—Agent—Warranty.
    Where the assured agrees that the person, soliciting or taking the application, shall be his agent as to all statements and answers in the appMcation, any untrue or false statement or answer, made by such agent, is binding upon the assured, whether he personally knew it to be true or untrue.

      Harry Wilber, for app’It; Lyman W. Redington, for resp’t.
   McCarthy, J.

This action was brought to recover $1,000, on a policy of insurance issued on the life of Elizabeth Kelly by the defendant, payable to the plaintiff. The answer is entirely affirmative. The defense is based upon alleged breaches of warranty by Elizabeth Kelly of the truth of statements made by her in writing and,upon which warranty the policy was issued. The case was tried before court and a jury. The plaintiff, after rebuttal, rested, whereupon defendant’s counsel moved that the court direct a verdict for defendant. Motion denied. Exception, and then moved for a dismissal of the complaint. Motion denied. Exception, the court saying: “ I shall submit to the jury the question whether the representations were known to the insured to be false at the time they were made.” At the close of the testimony defendant’s counsel renewed the aforesaid motions, with like denials and exceptions. The court thereupon charged the jury, and to which charge the defendant’s counsel took the following exceptions: First. To that part of the charge wherein it is charged that Elizabeth Kelly must have known her statement to be false before the jury can find for the defendant. Second. To that part of the charge wherein it is charged that if Elizabeth Kelly did not know she had been rejected the company is liable. Third. To that part of the charge wherein it is charged that if plaintiff relied on the statements made by the company or its officers, and which were made after the issuance of the policy, even although those statements were not in writing or signed by the officers, plaintiff can recover. The plaintiff must stand or fall on the contract or policy and the applications which form part thereof and are in evidence. By these, the plaintiff agreed that the answers and statements in this application whether written by the applicant or not, are warranted to be full, complete and true,- and that this agreement and the constitution and by-laws of the association, with the amendments thereto, together with this application, are hereby made part of any policy that may issue hereon. That if any of the answers or statements made are not full, complete and true, or if any condition or agreement shall not be fulfilled as required by such policy, the policy issued hereon shall be null and void, and all money paid hereon shall be forfeited to such .association. That the person soliciting or taking this application, and also the medical examiner, shall be agents of the applicant as to all statements and answers in this application. This, then, made the person soliciting and taking this application, the agent of the applicant as to all statements and answers contained in the application and binding on the insured, and any untrue or false statement or answers made by him must bind and control her liability in accordance with the terms of the contract. Elliott v. Mut. Ben. Life Assn., 76 Hun, 378; 59 St. Rep. 139. Whether she personally knew them to be true or untrue is immaterial. His acts were the acts of the insured, and bind her. It is conceded that the answers to some of the questions, as contained in the application, are untrue, if Donovan was the agent of the insured as provided for, there is a breach of warranty and this policy is null and void. Donovan may represent the defendant, but they had the right to limit and fix his position, authority and relation as between the insured and themselves. Quinlan v. Providence Washington Ins. Co., of Providence, R. I., 133 N. Y. 356, 362, 364, 365; 45 St. Rep. 200. The trial justice therefore erred in his charge to the jury as to the representations made and that they must have been known to the insured at the time she made the application to be false before ■defendant can recover. Under this contract it is immaterial. These contracts are considered fair and reasonable and are upheld by authority. For these reasons, judgment must be and a new trial ordered, with costs to abide the event.

Ehrlich, O. J., concurs.


text:
    Desiderio Genovese, Resp’t, v. Rizieri Matelli et al., App’lts.

      (New York City Court, General Term,

      Filed May 18, 1894.)

    Pleading—Answer—Supplemental.
    Where a demand is made by an officer who has an execution against the plaintiff in his hands, and the defendant has in his possession the money, which he, by his original answer, admitted to belong to the plaintiff, he is justified in paying it over, and has the right to set up such fact by supplemental answer, in order to reduce the amount of plaintiff’s recovery.

      F. H. Wilson, for app’lts ; Gilbert Elliott, for resp’t.
   McCarthy, J.

This is an appeal from an order made denying the motion of the defendant Vergilio Del Genovese for leave to serve a supplemental answer. The defendant Del Genovese procured an order directing the plaintiff to show cause why the said defendant Del Genovese should not be allowed to serve a supplemental answer. This order to show cause was granted upon the draft of the proposed supplemental answer and upon the affidavit of the defendant Del Genovese, and a transcript of a judgment in the second judicial court of the city of New York. The action was brought to recover the sum of $245 upon a promissory note, made by the defendant Matelli, and indorsed by defendant Genovese. The answer of the defendant Del Genovese was served upon the plaintiff’s attorney. By his answer the defendant Del Genovese admitted that he owed the plaintiff $128.66. On November 29th, 1893, a city marshall presented to the defendant Del Genovese, at his place of business, an execution against the plaintiff in this action, Desiderio Genovese and Rizieri Matelli; and asked if the defendant Del Genovese had any money or property belonging to either Desiderio Genovese or Rizieri Matelli; either individually or as partners of the firm of Genovese and Company ; he replied that he had $128,.96 belonging to said parties. This was the amount which the defendant Del Genovese had admitted in his answer in this suit that he owed the plaintiff.

The marshall seized the sum of $115.66 in cash and took the same away with him. The judgment upon which said execution was issued was recovered in the second judicial district court of New York, on the 17th day of November, 1893, by Luigo Peirano, against Desiderio Genovese, the plaintiff in this action, and Rizieri Matelli. The amount of the judgment was $109.20. This levy by virtue of the said judgment and execution happening after the service of the answer of the defendant, Del Genovese, and he not having knowledge of it until after service of his answer, he now asks to serve a supplemental answer setting up these ■facts, and thus diminishing the amount for which the plaintiff might be entitled to recover by setting off the sum of $115.66 taken on the execution against the amount sought to be recovered by the plaintiff. The supplemental answer is not a substitute for the original answer, but an addition to it. Section 544, Code of Civil Pro., reads: “ Upon the application of either party the court may. and in proper case, must,- upon such terms as are just, per- " mit him to make a supplemental complaint, answer, or reply, al- " leginy material fads which occurred after his former pleading, or of " which he was ignorant when it ivas made: * * *” Folger, J. in Holyoke v. Adams, 59 N. Y., at page 237, says: "So that it comes to this: That generally a defendant has a right to "set up by supplemental answer, matter of defense which has occurred or come to his knowledge subsequently to the "putting in of his first answer, but that he must apply to the court, by ■ motion, for leave so to do, so that the " opposite party may be heard, and the court may determine whether there has been unexcusable laches, or whether any of the reasons ap- pear, which are recognized as giving authority for denying the exer- " cise of the general right in the particular instance. And the court " must grant leave unless the motion papers show a case in which the court may exercise a discretion as to the granting or withholding "leave." The question then, is, was the order appealed from, a discretionary order, or did the facts of the case warrant the exercise of the discretionary power of the court, for if it did, this order should be affirmed. We do not think that the facts of this case showed the defendant guilty of laches in making his motion after the occurrence of the facts desired to be pleaded in his supplemental answer/nor do we think the payment of the money to the marshall under a proper process of law bad faith. A demand being made by the officer and the defendant having the money in his possession, which by his original answer he admitted belonged to the plaintiff, he was justified in paying it over, and had a right to set up such facts by supplemental answer in order to reduce the amount of the plaintiff’s recovery. Spears v. Mayor of New York, 72 N. Y. 444. For these reasons, this order appealed from should be reversed, with costs, and the defendant allowed to serve a supplemental answer on payment to plaintiff of $10.

Ehrlich, C. J. and Yah Wyck, J., concur.


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    Desiderio Genovese, Resp’t, v. Rizieri Matelli et al., App’lts.

      (New York City Court, General Term,

      Filed May 18, 1894.)

      F. H. Wilson, for app’lts ; Gilbert Elliott, for resp’t.
   McCarthy, J.

The facts being identical with those set out in action No. 1, (see opinion) the order appealed from herein is reversed, with costs, and the defendant allowed to serve a supplemental answer on payment of $10 costs.

Ehrlich, C. J. and Van Wyck, J., concur.


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    Max Lansburgh, Resp’t, v. Thomas Walsh et al., App’lts.

      (New York City Court, General Term,

      Filed May 18, 1894.)

    Appeal — Afpibmancb.
    Where the second trial was conducted on the lines laid down in the opinion filed on the former appeal, the verdict is satisfactorily sustained by the evidence and no error appears in the rulings, the jadgment will be affirmed.
    Appeal from judgment entered on verdict of a jury in favor of plaintiff.
    • M. J. Scanlon, for app’lts; L. G. Rosenblatt, for resp’t.
   Ehrlich, C. J.

The facts, as they appear in the appeal book, are substantially the same as on the former appeal, Lansburgh v. Walsh, 48 St. Rep. 639, and for the reasons stated in the opinion of Van Wyck, J., the case was one for determination by a jury, and for not sending it to the jury the non-suit ordered on the first trial was set aside. The second trial (that which we are now reviewing) seems to have been conducted on the lines laid down in the opinion filed on the former ■ appeal (48 St. Rep., supra) and the finding of the jury in favor of the plaintiff being satisfactorily sustained by the evidence, and no error appearing in the rulings, which require correction by a new trial, it follows that the judgment appealed from must be affirmed with costs.

Van Wyck, J. concurs.


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    Morris Levy, Resp’t, v. Elizabeth E. Kottman, App’lt.

      (New York City Court, General Term,

      Filed May 18, 1894.)

    Appeal—Findings of fact.
    The finding of the jury upon questions of fact, which have been submitted to them under proper instructions, is conclusive on the appellate court.

      L. S. Goebel, for app’lt; J. L. Weinberg, for resp’t. ■
   McCarthy, J.

This is an action for broker's commission under employment to procure a purchaser for real estate. The complaint sets up employment of plaintiff to sell No. 264 Delancey street in the city of New York for the usual commission of one per cent. That he procured a purchaser who paid to the ' defendant $50 on the price of $25,500 for the parcel. That the plaintiff earned his commission of $255. The„answer denied the employment of the plaintiff, that he procured a purchaser, that the purchaser agreed to buy, that he paid $50 on account of the purchase price ; but alleges that she received $50 on June 5th 1892 from a stranger for the option to buy the property on the next day, but that the stranger never came back to complete the sale, and pleads conspiracy and collusion between the purchaser and broker to defraud her out of $205 the amount being the difference between the commission sued for and the $50 she admitted that she received. The evidence sufficiently shows the employment of the plaintiff by the defendant’s husband, and her authority and ratification of the same. There is also evidence of the procuring of the purchaser by the plaintiff and his ability to cany out the contract. These being questions of fact and the same having been submitted to the jury under proper instruction, and they having found for the plaintiff it is conclusive on us.

We find no error and the j udgment should be affirmed, with costs.

Ehrlich, C. J., and Yan Wyck, J., concur.


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    Arlando Marine, Resp’t, v. Simon Peyser et al., App’lts.

      (New York City Court, General Term,

      Filed May 18, 1894.)

    Appeal—Chab&e.
    In an action on a note, in which fraudulent diversion is set up as a defense, a charge “that there has not been any fraudulent diversion of this note,” is erroneous, where a question of fact, upon conflicting evidence, is' , raised upon such issue.,

      Fromme Brothers, for app’lts ; Ormision & Borsett, for resp’t.
   McCarthy, J.

This is an appeal by the defendants, Peyser, Wolfe & Eisenberg, from a judgment in favor of the plaintiff entered upon a verdict of a jury. The action is brought to recover upon a promissory note of $1,000 and interest, and the complaint alleges in substance the making of the note by Peyser and delivery thereof by him to one Dempsey and Smith, named as defendants herein, and their delivery thereof to Eisenberg and his to Wolfe, and thereafter by mesne endorsements to - plaintiff. The answer in substance admits the making of the note, but puts in issue the other material allegations. They allege that the note was given without consideration and deny that it was endorsed and delivered by Dempsey and Smith to Eisenberg and then by him to Wolfe, but allege that the note was purely an accommodation note, and the endorsements purely accommodation endorsements, with the use of said note restricted to a special purpose, to wit, to enable Dempsey and Smith to procure discount thereof, to raise money wherewith to be enabled to carry on certain work, and for no other purpose. But, that after procuring the said note and endorsements in this way, Dempsey and Smith diverted the,same fraudulently from the purposes for which it was given and passed the same in payment of or as security for a precedent indebtedness of theirs to plaintiff, of all of which plaintiff had knowledge. On the trial the appellants had the affirmative. It appeared that Dempsey and Smith were contractors and had contracted to do certain stone work and upon performing such work in the manner provided for in the agreement between them and Peyser would be entitled to certain payments and at certain times and under certain conditions. It was claimed, that at the time of the giving of the note in suit there was nothing due or payable to Dempsey and Smith, they not having done their work and not being able to prosecute the same and also that there was advanced some cash and. upon the express understanding that the plaintiff should have it discounted and they advance the money to Dempsey and Smith. Under the contract the payment had not become due when the note was given and plaintiff had knowledge of all these facts. And the other endorsements were procured in like manner. The defendants further established that Dempsey and Smith did not perform their contract and the work was never properly done. The plaintiff unqualifiedly admitted that he received the note after maturity and further admitted that the note was passed in payment of a precedent debt. This stone had been delivered a year prior to the making of the note. The court at the request of the plaintiff charged the jury, “ that there has not been any fraudulent diversion of this note,” to which defendants duly excepted. Upon a careful examination of the case, we think the trial justice erred in charging as above requested, for the evidence clearly presents this among the issues of fact to Le determined and therefore ought to have been submitted to the jury. The agreement to endorse notes does not take away in the least, the question at issue, to wit, for what purpose was this note given and was it fraudulently diverted. The defendants had the affirmative and presented their side, at the opening of the trial. At folios 50, 51, 52, 53, 5-1, 55 and 56, Eisenberg, one of the defendants, testified among other facts, as follows: “Well, he started to work again, and Mr. Dempsey and also Mr. Marine called at my office and Mr. Marine said, ‘Well, Mr. Dempsey can’t get the buildings enclosed, and-you had better give him your note and I will give you mine, and I can get your note discounted and you get mine discounted and it will help Mr. Dempsey along so that he will go ahead with his work,’ and I said to Mr. Marine, ‘ I cannot swap any notes witii you; I will do this; ’ I said, ‘It is not due yet, the one thousand dollar payment— $240 was put on by a lien by the representive of Dempsey and Smith,’ and I said, ‘I will give you $760 in cash and $1,000 in my note providing you will take care of it when the note becomes due, and will carry it out according to the contract,’ and Mr. Marine said he would do so. * * * About the 10th of October, 1892, Mr. Marine called upon me and he said I should help Mr. Dempsey along—to advance him money to go ahead with the building so that they could get the building enclosed before the cold weather came along. And Mr. Marine offered to give me his note for $1,000, and that I should give him mine, and I should get his note, discounted, and help Mr. Dempsey, and Mr. Marine offered to get his note discounted and help him along, and I refused to do so, and I saw I had trouble with it before and I thought I would keep away from trouble, and I offered Mr. Marine this, I said, “ if you carry out the contract, which is not due yet, but will be due, I will give the $1,000 note and also $1,000 in cash payment.” I said to Mr. Marine, “I refuse to take your note—I will advance him the cash, payments of $760, which, with the $240 which was put on a lien against Dempsey and Smith on the property by the man that was employed- by Dempsey and Smith would make the $1,000,” and $1,000, my note, which I would give to Mr. Dempsey, and Mr. Marine should get it discounted, and advance him money; and I made the note out, and Mr. Marine was in the office at the time, and I indorsed it right over and gave it to Mr. Marine, arid about a couple of weeks after, when Mr. Dempsey called around, 1 asked him— ,

The Court: Is this the note you speak of in suit? Witness: Yes, sir.

By Defendant’s Attorney : And that was all that was said before I gave him the note. I ^ave him the note.

Again at folios 60 and 61, “That note was given to Dempsey and Smith in the presence of Mr. Marine. It was given to Dempsey and Smith to help Messrs. Dempsey and Smith ; it was given to Mr. Marine to help Dempsey and Smith. Mr. Peyser did not owe Mr. Marine any money. The note was given to Dempsey and Smith. Mr. Peyser did not owe Mr. Dempsey at that time,' and he turned the note over to Mr. Marine. I knew Mr. Marine furnished the stone for that building. Wolfe says, at folio 66 : “And Mr. Bisenberg and Mr. Peyser said it would take so long to make a rqan who goes on a bond to complete his work, that the building would go to rack and ruin, and we might better give these people the note they want so as to assist them, and then if we have no redress we can sue on the bond.” The plaintiff at folio 76 says, that the note was given to him for an antecedent debt. Dempsey, at folio 77 says, “ I remember the giving of the note on October 15th of $1,000. At that time the buildings were topped out; I never asked Mr. Bisenberg for any advance; I did not say to him that if be would give me that note that I would have it discounted and raise money on it.” Here there was clearly a conflict, and thus a question of fact raised between the testimony of | Bisenberg and Wolfe on one side, and Marine and Dempsey on the other, as to the arrangements under which the note in suit was given and as to its fraudulent conversion. This then should have been left to the jury, for when the facts are uncertain or there is a conflict in the evidence, the question must be submitted to the jury. Potts v. Mayer, 74 N. Y. 595; Marine v. Peyser, 58 St. Rep. 13; 27 N. Y. Supp. 228.

Judgment should therefore be reversed, and new trial ordered with costs to the appellant to abide the event.

Yan Wyck, J., concurs; Ehrlich, C. J., dissents.


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    In the Matter of Michael H. Gillespie v. John Mulholland.

      (New York City Court, General Term,

      Filed May 18, 1894.)

    Attorney—Summary proceedings.
    In a summary proceeding to compel an attorney to pay over the proceeds of collections to his client, the special term may direct a reference to determine and report upon the questions arising upon the application.
    Appeal from order granting reference, etc.

      James Kearney, for app’lt; Jeroloman & Arrowsmith, for resp’t.
   Ehrlich, C. J.

It appears that Mulholland, the person proceeded against, collected the amount of a judgment recovered in this court, and declined to pay over the proceeds to the firm of Gillespie Brothers, to whom they belonged. These persons thereupon applied to the court for an order directing Mulholland, as an attorney and officer of the court, to pay the proceeds over, according to the duty incumbent upon him as such attorney and officer. The justice at special term, as he lawfully might, directed a reference to determine and report upon the questions arising upon the motion. Code § 3172. Nothing has been decided against the appellant, and the only question submitted for review is whether the court below had the power to make the order directing a referee - to inquire into the facts. As the statute furnishes warrant for the power assumed, there remains nothing for us to do but to affirm the order appealed from, with costs.

Van Wyck and McCarthy, J. J., concur.


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    Catharine O’Shaughnessy, Resp’t. v. The Working Women’s Co-operative Association of the United Insurance League of New York, App’lt.

      (New York City Court, General Term,

      Filed May 18, 1894.)

      1. Appeal — Direction of verdict. ■
    Motions by both plaintiff and defendant for a direction of a verdict, leave the questions of fact entirely to the court.
    &. Insurance — Life — Warranty.
    Where the assured, in a policy of life insurance, warrants the truth of the answers made to questions in the application, compliance with such warranty is a condition of the validity of the contract of insurance.

      W. B. Donihee, for app’lt; William K. Morris, for resp’t.
   McCarthy, J.

It is a pity that counsel do not prepare their causes better and thus present more fully at the trial all the facts relating to the case. This would relieve the judges at general term from much uncertainty and prove more satisfactory to counsel. This case either through neglect or some other cause, was not properly presented by either side, and thus we are compelled to act on very slight evidence indeed. The plaintiff and defendant, having each moved for a direction of a verdict, left the question of 'fact entirely to the court. We can, then, only review on a question of law. At folio 39, the defendant offered in evidence,. among certain proofs submitted to them by the plaintiff, in regard to the death of Catherine Clifford, the following affidavit of the plaintiff:

State of New York,
City and County of New York
Catherine O’Shaughnessy of the city of New York, being duly sworn, says that she resides at 807 First avenue, in the city of New York that she well knew Catherine Clifford ; she was the wife of Patrick Clifford who died in the city of New York, June 29, 1869 ; for the last three years of her life Catherine Clifford lived with me at this number, she died on Monday morning Hovember 27, 1893, at my residence in this city. I know Dr. Jos. A. McLoughlin for about five years, and knew him when he was a physician. attending to Catherine Clifford for rheumatism, inflamatory rheumatism, in 1891, in the summer of 1891, he made one visit; she had rheumatism in the hands. I don’t know her age, only as she states it in her application.
her
Catharine X O’Shaughnessy mark
Sworn to before me this 1st. 1 day of December, 1893. j
Sigmund W. Wolff, Hotary Public, (202) N. Y. Co.

By Exhibit A., the application which Catherine Clifford signed when seeking this insurance, and which forms a part of the contract of insurance, she represents that she never had any rheumatism, while by the affidavit of plaintiff it appears that Mis. Clifford had this disease in the summer of 1891. The plaintiff, although in court, was not called to contradict or éxplain this affidavit. The answer to this question was a material one, and, under the terms of the application and certificate, if false and untrue rendered the policy null and void. Where the assured, in a policy of life insurance warrants the truth of the answers made by her to questions in her application compliance with such warranty is a condition of the validity of the contract of insurance, and it must be assumed that any substantial deviation from truth in such answers is material to the risk and renders the policy void. Dwight v. Germania Life Ins. Co., 103 N. Y., 346 ; 3 St. Rep. 115 ; Armour v. Transatlantic Fire Ins. Co., of Hamburg, Germany, 90 N. Y. 451, 453. Other questions were asked. “ Q. When last sick? A. Hever. Q. Of what disease ? A. Hone. Q. Hame of physician who last attended member proposed, and when ? A. Hone. Q. Has member ever had (if so, give particulars) rheumatism? A. Ho.” Also 20th question (fol. 54, p. 6). “ Q. Has applicant withheld any material facts about member proposed ? A. Ho.” The trial justice, with this evidence before him, erred in directing a verdict for the plaintiff and therefore judgment must be reversed and a new trial granted, with costs to abide the event. The judgment roll which is on file in the clerk’s office has been read, examined and considered as a part of the case on appeal.

Yah Wyck, J., concurs.


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    Edward L. Purdy, Resp’t, v. The Nova Scotia Midland Railway and Iron Company, App’lt.

      (New York City Court, General Term,

      Filed May 18, 1894.)

    Assignment—When sufficient.
    The debtor cannot question the legality of a transfer which is sufficient to protect him in paying to the assignee the amount due on the assigned claim.
    Appeal from judgment entered on verdict of jury in favor of plaintiff.

      H. G. Andrews, for app’lt; Tyler, Pratt & Hibbard, for resp’t.
   Ehrlich, C. J.

The action was to recover for services rendered and materials furnished to the defendant by the New York Bank Note Company in and about the engraving of certain bonds for the defendant. The claim was assigned by the Bank Note Company to the plaintiff. The evidence clearly established the performance of the work and furnishing of the materials, and that $795, with interest, was due therefor. -The assignment was executed by the president of the Bank Note Company, in the presence of its secretary, and the corporate seal of the company was affixed. The assignment was certainly sufficient to protect the defendant in paying the amount due to the plaintiff, and, therefore, the defendant cannot seriously question the legality of the transfer. Sheridan v. The Mayor, 68 N. Y. 30. It nowhere appears that the defendant was entitled to the plates upon which the bonds were printed, and the bonds themselves were delivered and accepted. The verdict of the jury is satisfactorily sustained by the , evidence, and finds every fact in favor of the plaintiff which is required to sustain the judgment, which must be affirmed, with costs.

Van Wyck, and McCarthy, JJ., concur.


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    Howard Rawlings, Resp’t, v Sanfelici Alexander, App’lt.

      (New York City Court, General Term,

      Filed May 18, 1894.)

    Pleadings—Answer—Denial .
    An answer which admits an allegation of the complaint and then ‘ ‘ denies each and every other allegation in said complaint not heretofore specifically admitted, controverted or denied,” presents a sufficient denial.
    Appeal from judgment entered on verdict directed in favor of the plaintiff.

      C. A. Watson, for app’lt; Hayes & Greenbaum, for resp’t.
   Ehrlich, C. J.

The action is to recover for goods sold and delivered by the firm of James Saitta’s Bon & Co. to the defendant. The plaintiff claims under an assignment executed by that firm. The answer admits that the defendant purchased from said firm certain goods and merchandise, and for further answer “denies each and every other allegation in said complaint contained not hereinbefore specifically admitted, controverted or denied." Plaintiff’s counsel moved for judgment on the pleadings, the court granted the motion, and directed a verdict in favor of the plaintiff, which is now the subject of review. The reason for granting plaintiff’s motion was that the answer was not in the form authorized by the Code. But the court of appeals in Griffin v. Long Island R. R. Co., 101 N. Y. 349; 1 St. Rep. 56, has held that such a denial is good and creates a triable issue. Following this case it is clear that the defendant by his answer put in issue the value or agreed price of the goods, together with the fact whether the assignment under which the plaintiff claims was ever executed, as alleged. The direction to find for the plaintiff, was clearly unauthorized, and the judgment entered on such direction must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Van Wtck, J., concurs.