author: Daniels, J.

text:
    In the Matter of the Will of Rachel Berrien, Deceased.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    1. Will—Probate—Witness.
    The proponent of a will, also a legatee thereunder, was sworn as a witness upon the proof, when he was objected to as incompetent. Thereupon, he stated that he renounced all right to the legacy. He was then accepted as a witness, and testified. Held, no error. A simple expression of dissent by the donee of a legacy, though only by a parol declaration, is sufficient to avoid the gift.
    2. Same—Testamentary capacity.
    Evidence sufficient to show testamentary capacity.
    Appeal by Eliza S. Baker and Haney 0. Berrien, otherwise known as Maria Gr. Berrien, from the decree of the surrogate of the county of New York admitting to probate the will of Rachel Berrien, deceased.

      Howe & Hummel, for app’lts; Cyrus A. Peake, for resp’t.
   Daniels, J.

The instrument in controversy was dated on the 19th of June, 1888. At the time of its execution the testatrix was about the age of eighty-three years, and she then resided in the family of Benjamin Gr. Berrien, her son, to whom, and her grandchildren, she gave nearly all of her estate. She died on the 25th of July, 1888, leaving an estate of the value of about two thousand dollars. Besides her son and grandchildren she left surviving her two daughters, who have appealed from the surrogate’s decree. To these daughters she gave no part of her property by her will, and they contested the application for its probate on the ground that the instrument had not been executed, or freely executed by her, and that she was not at the time of sound mind, memory or understanding, and that she had been induced to subscribe the instrument, if she did it at all, by undue influence, fraud and coercion. Shortly prior to the time of the execution of this instrument the testatrix was a member of the family of her daughter, Eliza S. Baker, with whom the other daughter also resided. She remained in that family between one and two years, and about four o’clock in the morning, in the early part of June, she left that house through an unsecured window and went to a neighbor’s a short distance therefrom. There she remained for about eight days, when she was taken with her own consent to the residence of her son, where she afterwards resided until the time of her decease.

On the 23rd of April, 1885, she executed another will, in which she gave her property, after the payment of her debts and funeral expenses, to these two daughters, nominating the husband of her daughter, Mrs. Baker, as her executor. At that time, therefore, her disposition and intention evidently was that they should be the recipients of her property. And the fact that her intention in this respect was afterwards so radically changed as to exclude them, and to donate all her property upon her son and his children, with a slight exception, awakens a suspicion at least that her conduct in this respect may have been improperly influenced.-

But this was met and explained by evidence indicating her condition and intention when she executed the paper in controversy, and of ill-treament alleged to have been received by her while she was an inmate of the family of her daughter Mrs. Baker. Upon these subjects a very large amount of evidence was taken, but it was not heard by the surrogate, but by his assistant, and then reported to him for'his final action upon the application to probate the will. The case is accordingly to be considered on the effect of the evidence as it has now been brought before this court, for it has the same means of considering the evidence as the surrogate himself had, the witnesses not appearing or testifying before him. In the final disposition of the case the practice prescribed by the Code of Civil Procedure has not been followed. But as all the evidence and proceedings have now been brought before this court,. and each party through their counsel has submitted their views, this mere informality should not be allowed to stand in the way of a final disposition of this controversy.

The burden was upon the proponent of the will for probate to establish the fact, not only that it had been subscribed by the testatrix, but also that the other legal formalties prescribed by the statute had been observed, and that she was at the time a person of testamentary capacity. To meet this obligation the three witnesses who attested the execution of the instrument were sworn and examined in the surrogate’s court. They were persons of intelligence and fair character certainly, two of them being members of the bar, and one a member of the medical profession. The instrument itself was drawn by Mr. Peake, one of these three witnesses, and he testified that it was so drawn on the day preceding its execution ; and that the testatrix had dictated or stated to him the persons to whom she designed to give .her property and the articles to be given to each as they appeared in the instrument drawn by him. It was also testified that this instrument was read over to her after it was drawn, and that she expressed her approval of what had been done.

On the following day these three witnesses, together with the son of the testatrix, were present, for the purpose of having the instrument executed by her. And Mr. Miles, who was a physician, testified that he conversed with her to ascertain and discover what was then her mental condition, and from the conversation which took place concluded her to be a person of sound mind and understanding. And the testimony of the other persons who were present directly tends to sustain this statement of the doctor. The paper in controversy was produced, and it is stated by the persons who were present that she subscribed her name to it, although in a defective and partially illegible character, owing, apparently, in some degree to her very defective eyesight. And that after that had .been done, either in answer to an inquiry made by Mr. Peake or of her own volition, she declared the instrument to be her last will and testament, and requested these persons to subscribe it as witnesses, which they then and there did in her presence. These witnesses agree that her conduct and conversation appeared to them to be rational, and that' she understood the business which she was at the time transacting. And her son, who was the proponent of the will, gave evidence of the same general description.

His testimony was objected to when this subject was reached, on the ground that he was incompetent, being one of the legatees named in the will. But all that was given to him by its language was one Boston rocking chair. And when this objection was taken to his competency as a witness, he stated that he renounced all right to this legacy, and upon that the objection was overruled and the contestants, by their counsel, excepted. This objection was also from time to time repeated and directed to other portions of the testimony of this witness. But it does not appear to be capable of being sustained, for the article intended to be given to him being personal property, could certainly be rejected and refused in this manner. The gift itself was, necessarily, dependent upon his acceptance of it, and when he declined to do that, then it became ineffectual.

The law upon this subject has been stated to be that, “as a gift is not perfect, at law until ratified by the assent of the donee, and a disclaimer operates pnerely as evidence that such assent was never given, and that the estate consequently never vested in the donee, it would seem to follow that a simple expression of dissent by the donee, though it were only by a parol declaration, would be sufficient to avoid the gift.” Hill on Trustees, 3rd Am. Ed., 331.

And the principle has been stated' still more positively in 1 Perry on Trusts, 2d ed., in § 270, where it has been stated that “ it is now established that a parol disclaimer is sufficient in all cases of a gift by a deed or will of both real and personal estate.” And this has been sustained certainly by the tenor, if not by direct adjudication, of the authorities. Townson v. Tickell, 3 Barn. &, Ald., 31; Small v. Marwood, 4 Man. & Ryland, 181, 189, and note containing a very fair statement of the cases and the principle considered to be maintained by them. King v. Wilson, 5 id., 140; Peppercorn v. Wayman, 5 De Grex & Smales, 30; Doe v. Harris, 16 M. & W., 517, 520; Com. v. Mateer, 16 S. & Rawle, 416.

It is true that in these cases the disclaimer was by writing, but, the opinions of the courts proceed upon the theory that this degree of formality was not absolutely essential, certainly where the property intended to be donated is personal. And the same degree of approval of this legal theory is contained in Roseboom v. Mosher, 2 Denio, 61, 68-70, where the authorities underwent a, very liberal degree of examination. And it follows from them, as well as the reason of the principle, that a gift of personal estate rejected by the donee cannot be held to be effectual either in law or equity. And the result is that this person was a competent witness to give evidence upon the hearing of the case. To prove the mental capacity of the testatrix it was further shown that she had executed a power of attorney and a deed of an undivided interest in a parcel of land shortly before the time when this instrument was subscribed and witnessed, and that conversation took place between herself and the counsel who drew and was present at the execution of these papers indicating her complete understanding of their contents.

It was also stated, and such no doubt was the fact, that her daughter, Mrs. Baker, was present at the time when the power of attorney was executed and endeavored to induce the testatrix to-decline its execution. But this effort on her part was ineffectual, and her mother refused to listen to her remonstrance and censured her for the treatment she had received while a member of the family of Mrs. Baker.

The object of the power of attorney was to authorize her son to manage her affairs. And under its authority he brought an action of replevin to recover the personal property of the testatrix which was left by her at the residence of Mrs. Baker at the time when she took her departure. And evidence was given showing that she stated where the articles would be found, and what they were, which it was the object of the suit in replevin to recover. And that these articles were found at the residence of Mrs. Baker as the testatrix stated they would be.

When she left that residence she went to the house of Mary Hallinan, where she remained for eight days. This was on the way to. the residence of her son. And while she was at this house Mrs. Baker endeavored to induce her to return to her own house, but the testatrix refused to do so, asserting that she had there been misused. The testimony of Mrs. Hallinan is also to the effect that she conversed with the testatrix at different times while she remained at her house, and that her memory was good and her conversation intelligent. And such also was the evidence of Dr. Darlington, a witness who was sworn and examined on behalf of the proponent, and visited the testatrix at the house of Mrs. Baker, both as her friend and her physician. He stated that he had repeated conversations with her, and that he considered in substance that she was' rational and intelligent, but suffering from bodily diseases. The clergyman Nathaniel Thompson gave similar evidence. And so did Moses Burbank, she readily is stated to have whom recognized when he called upon her at the residence of Mrs. Baker. And the evidence of Peter B. Berrien is in the same direction.

Another incident connected with the execution of the instrument in controversy was her refusal to leave anything to her grandson Bennie. And that, she stated, was induced by the fact that she had at one time loaned him four dollars, and when she asked him to pay it he not only laughed at her, but refused to do so. The testimony of these witnesses as to what took place at the time when the power of attorney and the deed were executed, and when the will was drawn and it was executed and witnessed, is substantially uncontradicted by the other evidence contained in the case. And it tends very decidedly to prove the fact to be that the testatrix fully understood what she was doing and intended to dispose of her property as that has been directed by this instrument.

The reason assigned by her for excluding her daughters from participation in the property is that they had misused her and had restrained her in the house of Mrs. Baker, not permitting her to go when she desired to do so to the residence of her son. And the testimony, not only of Mr. Peake, to whom the statements of the testatrix were made, but that of the physician Thomas Darlington, the witness Thomas Tighe, Mary Hallinan, Benjamin B. and Sarah E. Berrien, tends directly to prove this to have been the fact, and that it had impressed itself to such an extent on the mind of the testatrix as to induce her to exclude these two daughters from participation in her property.

The testimony of the daughters themselves, as well as that of Alonzo Baker and Wilber S. Baker, the husband and son of Mrs. Baker, is that she was well and kindly treated at their residence, and that the complaints made by her were destitute of foundation. Farther evidence was given by the witness Edman that the testatrix, although previously well acquainted with him, did not recognize him when he called upon her at the residence of Mrs. Baker. And upon the evidence of these witnesses the position has been taken that her complaints were imaginative, resulting from delusions, and that her mind had become so far impaired as to render her incapable of making a valid will. And upon this subject the evidence of the physician, Frederick W. O’Brian, was taken very much at large, as it was also for the purpose of trying and criticising the preceding witness, Thomas Darlington. The witnesses who were members of Mrs. Baker’s household concur in their statements that the testatrix while she was there suffered from different diseases, and that her bodily health had become quite infirm, and that she had on several occasions indulged in acts and made expressions indicating the want of mind and memory. Among these were the fact of her throwing a step-ladder and. other articles down stairs, breaking the windows of a stove, destroying a geranium plant, and drumming on the table in her room with boys’ drumsticks, and the language used by her on different-occasions, which is described as being abusive, obscene and contradictory, and of her departure at one time from the house and her discovery afterwards at a stone quarry, which however, seems to ,..ave been between this residence and the home of her son. Yai’ious questions were propounded to Dr. O’Brian as to the indications .'.rising out of this language and these acts, and he expressed himseif repeatedly that she was a person affected with what was called senile dementia, arising from advanced age and these bodily infirmities. But while this evidence afforded ground for concluding that her mind had become the subject of derangement, it still appeared from what was stated by the witnesses on the part of the contestants that this was not constantly the condition of the testatrix, but that it resulted from the disturbed state-of her health at the time, and that in the intervals she was reasonably rational and intelligent Upon this subject the witness, Miss Berrien, states that on one occasion a person called upon the testatrix whom she failed to recognize, but a few days before that the same person was in there and saw her and was talking with her, and she seemed quite sensible. She-further testified that it was not a matter of fact that they kept her confined in the house and would not let her go out, and then added, “ Only when she was in her wild spells, when we were afraid that she would escape and injure herself, she was at liberty to go wherever and whenever she wished; when she had these spells on her she might get herself into harm.” Mrs. Baker also gave similar testimony, in which she stated, “I never attempted to prevent her from leaving the house only at times when she had these wild spells, and when she was in a sick condition and was not fit to go.”

She also testified when in a state of excitement in these fits that the last witness that has been examined has described, she would look generally quite wild out of her eyes, and her eyes didn’t look natural, and she would talk a great deal to herself. And, on the occasion when the windows of the stove were broken, she states that the testatrix seemed to be very wild when we went, up to look. And also that “ when she had a wild spell we kept, the windows and doors fastened.” The witness Ellen Flanigan also testified that sometimes she would be very wild, and a number of times she was quite right, and that she had these violent spells most every week one or two days, sometimes a week, and sometimes three weeks. The witness Edman referred to the same condition, in which he stated that her health under these spells was very poor. And other evidence was given that when not affected by them she conversed and acted rationally. And the testimony of Doctor O’Brian, in connection with this other evidence, would seem to warrant the belief that she was not in a demented condition, for in the intervals between her wild spells, which were identified with more than usual severity of her bodily diseases, she was not affected with these mental disturbances, for he stated that he thought a smile demant once is a senile demant always, which is not consistent with the theory presented by this evidence on behalf of the contestants. For that discloses the fact to have been that during the intervals between these infirm and wild conditions so often designated as “ spells,” that the testatrix had the rational control of her faculties. And the evidence given on behalf of the proponent very clearly discloses the fact to have been that it was in an interval of this description that this power of attorney, deed and will were executed. On each of the occasions connected with the drawing, reading and execution of the instrument in controversy the testatrix exhibited a fair amount of mental strength and understanding. She is shown to have comprehended what was in the instrument, and that it was drawn in pursuance of her express instructions, and that the reason leading to the exclusion of her daughters was the treatment that she had received at their hands.

Her complaints of this treatment were made at times when the witnesses attesting them agree that her conversation was rational and her memory appeared to be good. And the fact that she repeated thesp complaints as frequently as she did, when she was rational and her mind was active, confirms the conclusion that her accusations against her daughters, although in some respects exaggerated, had a sufficient foundation to excuse her in judgment of law for excluding them from all interest in her estate. There was some other evidence given, but not equal in importance to that which has been referred to, tending to exculpate the contestants and to charge the son with ill-treatment of his mother. And there is reason for believing that this charge was well founded, but it had not proceeded so far as the acts of the daughters, which were still more recent, and for that reason more effectual in controlling the intention of the testatrix. Her aversion to them and her indisposition to return, stating she would prefer to die in the street, fully explain the motive leading to their exclusion under the will. And as the testatrix was clearly not affected by either of these wild spells mentioned by the contestants and their witnesses at the time when the instrument was executed by her, but is shown by the attesting witnesses, as well as by the evidence of her son, who was present, to have been entirely free from every affecttion or disability of that nature, the conclusion appears to follow that she did possess that degree of mind and memory requisite to the making of her will, and freely, intelligently and intentionally made this disposition of her property. The causes assigned inducing her to do so transpired after the making of her will in 1885. They lead to an entire change in her design. And as she has given expression to it in this instrument, and was at the time competent to understand it, and freely and voluntarily made it as the result of her own inclinations, the surrogate was right in admitting it to probate, and the decree should be affirmed, with costs.

Van Brunt, P. J., and Brady, J., concur.


source: Caselaw Access Project

author: Brady, J.

license: Public Domain

text:
    Isaac Morley, Resp’t, v. The Mayor, etc., of New York et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Municipal corporations—Officers—Salary.
    The plaintiff, who had been appointed under § 48, chap. 410, Laws of 1882, an assistant engineer in the department of public works in New York, received a notice of suspension. - Thereafter he made frequent tenders of his services, which were declined. Held, that as plaintiff had neither resigned nor been dismissed he was entitled to recover his salary.
    Appeal from a judgment in favor of the plaintiff directed by the court.

      Charles Blandy, for app’lts; Cecil Campbell Higgins, for resp’t.
   Brady, J.

This action was brought to recover an amount of salary as an assistant engineer in the department of public works. The plaintiff was appointed on the 2nd of February, 1884, under § 48, chap. 410, of the Laws of 1882, at a salary of $1,800 per year, which was afterwards increased to $2,000, and entered upon the performance of his duties. While engaged in the work of the department he received a notice of suspension, and which was as follows:

Isaac Morley, Esq.:
“ Dear Sir—Notice of suspension as assistant engineer in the department of public works, to take effect on the 31st of July, 1886, is hereby served on you.
“Respectfully, William B. Smith,
Deputy Commissioner Public Worlcsl ■

He was paid in full from the date of his employment until the 1st of August, 1886. This action embraced the period between the day last named and the 1st of December, 1887, on which latter date he accepted a position under the Aqueduct board. During the period from August 1, 1886, to December 1, 1887, he rendered no services as an assistant engineer in the department of public works, having been suspended as already stated, and notwithstanding that during the period named he made repeated applications at the department for assignment to active duty and tendered liis services to the officials there, but was notified that the department had nothing for him to do. It appears, however, that he made repeated efforts to get employment elsewhere and finally succeeded in obtaining work from the Hudson River Supply Company, where he was paid for his services for a period of four months, at the rate of $2,000 per annum, the same sum at which his salary was fixed at the department of public works. It also appears that he never received any notice of dismissal and that during the period of his employment there was no charge of incompetency or inefficiency made against him.

Upon the conclusion of the evidence the plaintiff’s counsel asked the court to direct a verdict for the plaintiff and the defend ants’ counsel asked the court to direct a verdict for the defendants on the proofs. The court directed a verdict for the plaintiff.

The defendants’ counsel then asked to go to the jury on the question whether Mr: Morley did not understand when he received the notice of suspension that he was discharged, and whether his subsequent acts in applying first to Mr. Birdsall for other employment and in the acceptance of employment from the Hudson River Supply Company and from the aqueduct commission were not evidence of such understanding.

The plaintiff’s right to recover was urged chiefly upon the decision made in the case of Gregory v. The Mayor, 113 N. Y., 416; 22 N. Y. State Rep., 703, which case his counsel claimed was decisive of his client’s right to recover.

Notwithstanding the extended criticism and review of that case indulged in by the counsel for the appellants, it is regarded as conclusive upon the right of the plaintiff to recover. In that case the plaintiff was employed by the commissioners of excise of the city of New York as an inspector of excise. In December, 1880, he received notice that he had been suspended, and after that time was not allowed to render any services. He frequently attended at the office of the board and offered to discharge the duties of inspector. He never received any notice of dismissal. The court held in that case that the commissioners had no power to suspend, and that the attendance of the plaintiff and his frequent offers to discharge the duties of the position to which he had been appointed were sufficient tenders of performance on his part to warrant the conclusion of the learned judge in directing a verdict. There seems to be no difference whatever between the two cases in the respect suggested. Our attention has not been called to any statute or authority for the suspension of the plaintiff.

An attempt was made by the counsel for the appellants to distinguish this case from that referred to as one in which there is an attempt to perform services of a temporary character, and out of which it is thought springs the right to suspend the person thus selected. But the appointment of the plaintiff by the commissioner of public works was as an assistant engineer at $1,800 per year and not at the rate of $1,800 per year, from which latter phraseology, had it been used, it might be inferred that the appointment was but temporary in character. He was, however, employed for the sum mentioned per year, which was an appointment for that period. There is, therefore, as already suggested, nothing in this case to distinguish it in principle from the case cited, and it must be controlled fly the law pronounced in that adjudication.

The court deducted from the amount of the plaintiff’s claim the sum earned by him from the Hudson River Supply Company during the period mentioned.

The defendants, however, have taken no appeal upon that subject and that question is not presented for our consideration, although discussed upon the respondent’s brief.

It thus appears that the plaintiff, on the facts and the law applicable to them, was entitled to recover for the period named ratably according to the amount of compensation he received per annum. This salary was fixed by the commissioner of public works in pursuance of power conferred upon him by the legislature. Sec. 48, chap. 410, Laws 1882.

It is only necessary to consider one other proposition growing out of the request on the part of the defendants that they be allowed to go to the jury upon the issue of whether the plaintiff did not understand when he received the notice of suspension that he was discharged, and whether his subsequent acts in seeking and accepting employment elsewhere were not evidence of such understanding. That request was properly declined for the reason that the court of appeals distinctly held in the case of Fitzsimmons v. The City of Brooklyn, 102 N. Y., 536; 2 N. Y. State Rep., 475, that a person occupying a public office, such as the plaintiff in this case, when deprived of the opportunity of discharging his duties could have the right to seek employment wherever he could get it, and to receive compensation without any obligation on his part to account for it and without any prejudice to his right to recover the full amount of salary attached to the office he held, a rule which is predicate of the proposition that there is no contract between an officer and a state or municipality by force of which his salary is payable; it belongs to him as an incident of his office as long as he holds it, and when improperly withheld he may recover the full amount. In connection with this proposition it must be borne in mind that the plaintiff had not been dismissed from his office and had not resigned. It is subject also to the criticism that the plaintiff’s rights were not to be controlled by what he understood the notice to mean, but by what the commissioner did in fact. He did not discharge the plaintiff and there was no evidence on which a finding thereto could rest. For these reasons the judgment appealed from must be affirmed, with costs.

Van Brunt, P. J., and Daniels, J., concur.


text:
    Schickle, Harrison & Co., Resp’t, v. Rowland N. Hazard et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    1. Bills and notes—Counterclaim in eavob oe makers not available TO ACCOMMODATION ENDORSES EXCEPT ON PBOOE OE MAKER’S INSOLVENCY.
    Plaintiffs were holders before maturity and for value of a note made by O. & L., of which H. was an accommodation endorser. In an action on the note 0. & L. set up counterclaims. H., also, set up the counterclaims of 0. & L. in his answer, and demanded that any amounts due from plain tiffs to C. & L. by reason thereof should be deducted from the amount due on the note; but he offered no proof of the counterclaims. He also alleged that 0. & L. were insolvent, but gave no proof of it. Plaintiffs denied the counterclaims and the insolvency of 0. & L. Held, that H. must fail in his defense.
    3. Same.
    Where a principal is insolvent a surety may, in equity, avail himself of all existing claims in favor of the principal against the plaintiff, but as this remedy depends upon insolvency, that must be proved.

      Appeal from judgment entered upon report of referee.

      Moses R. Crow, for app’lts; A. Taylor, for resp’t
   Brady, J.

This action was brought upon a promissory note for $14,542.17, made by the defendants Comegys & Lewis, to their own order, and endorsed by them and the defendant Hazard, and delivered before maturity to the plaintiffs for value.

The defendants Comegys & Lewis denied the allegations of the complaint, but set up two counterclaims, one for the alleged breach of a contract made by the plaintiff to furnish pipe for. waterworks at Nebraska City, and the other for an alleged breach of a contract on behalf of the plaintiffs by which they agreed to furnish pipe for works at Chillicothe.'

The defendant Hazard averred that he was an accommodation endorser, setting forth the fact that the makers of it had a counterclaim against the plaintiffs, and claiming that any and all amounts due from plaintiffs to the defendants Comegys & Lewis arising from the alleged counterclaims should be deducted from the amount due upon said note and that judgment should be rendered against them accordingly. It appears, however, that he offered no evidence to support these allegations. These averments of counterclaim were denied and a settlement of the accounts of Comegys & Lewis set up by the plaintiff in their reply. The learned referee has discussed elaborately the questions arising upon the evidence and the facts which he found had been established.

A careful and elaborate examination of the record has led to the conclusion that his findings of fact cannot be disturbed; that they are all sustained by the evidence and so clearly that it is only necessary to state that result

It would be a work of supererogation to go into details to demonstrate the propriety of his findings. The opinion which was delivered by him upon the rendition of judgment is one which commends itself to our judgment upon due deliberation of the facts and circumstances of the case, and as a disposition of all the questions save one which will be made the subject of separate consideration. The findings of fact and conclusions of law as declared by the referee are, therefore, adopted and affirmed.

It may be said with great propriety that the chief legal proposition urged on behalf of the defendant Hazard is that he occupied the position of a naked surety without consideration for the performance by the defendants Comegys & Lewis of their contract with the plaintiffs, and that, therefore, if by reason of the nonperformance of that contract by the plaintiffs any damages resulted to the defendants Comegys & Lewis they were applicable to the satisfaction of the note in suit in whole or in part; and that he had the right to insist that they should be so applied.

Indeed the proposition is carried so far that it is insisted that if the defendants by their dealings and arrangements with the plaintiffs waived or relinquished their right to have such damages, the defendant Hazard was deprived of a substantial right and was, therefore, discharged from all liability upon the note. And this legal attitude is founded upon the assumption that a surety may avail himself of all existing claims in favor of his principal against the plaintiff where the principal is insolvent, citing the cases of Gillespie v. Torrance, 25 N. Y., 306, and Coffin v. McLean, 80 id., 560.

Admitting for the sake of argument that the counterclaim herein was established and that the defendant Hazard is entitled to all the advantages springing therefrom, nevertheless there is no proof of the insolvency of the defendants Comegys & Lewis.

It is true that insolvency is averred by the defendant Hazard in his answer, and that it is not denied in express terms by the plaintiff; but there is a denial of each and every allegation of the defendant’s answer in so far as it sets up a counterclaim in this action. And this is regarded as, a sufficient denial inasmuch as insolvency is a necessary element to make the counterclaim available to the surety.

It is supposed that the denial is limited to the counterclaim alleged and that the allegation of insolvency is not denied either generally or specifically, but this is an erroneous view of the condition of the pleadings for the reasons above stated.

The adjudications mentioned upon which the defendant Hazard relies declare that in equity a counterclaim may be pleaded as contemplated where the principal is insolvent, and this makes insolvency a constituent part of such a defense. There was no proof' of it and, therefore, the alleged counterclaim is of no avail.

No case has been cited which goes so far as to hold that under circumstanées kindred to those which marked the relations between the plaintiff and the defendants, Comegys & Lewis, they might waive either a counterclaim or a set off which might otherwise have existed.

In this case, the doctrine invoked on behalf of the plaintiff was one of waiver, which rests, however, upon ddctrines of equity, and for that reason are further from the grasp of the surety than they otherwise would be. '

For these reasons, in addition to those contained in the opinion of the referee, the judgment should be affirmed.

Van Brunt, P. J., and Daniels, J., concur.


author: Dykman, J.

text:
    In the Matter of the Petition of Hubert O. Thompson, Com’r. Claim of Helen M. Diggles, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    1. Eminent domain—New Yobk aqueduct—Damages—Evidence.
    Appellant presented a claim for injury to her water privileges, buildings, etc., by reason of blasting, etc. An easement in the land only had been taken. The commissioners excluded evidence as to the cost of the reservoir, buildings, etc., claimed to have been injured. Held, no error.
    2. Same.
    Appellant’s claim was for $85,000, which was subsequently increased to $174,000. Held, that in view of the evidence and the value of the property, an award of $6,000 was ample to cover the injury sustained.

      Appeal .from order confirming report of commissioners of appraisal.

      Calvin Frost and Noah Davis, for app’lt; William H. Clark, De Lancey Nicoll and Esek Cowen, for resp’t.
   Dykman, J.

This is an appeal from the report of commissioners appointed to ascertain and appraise the damages sustained by reason of the construction of the new Croton Aqueduct.

The appeal is by Helen M. Biggies, whose claim was for damages to parcels numbers 612 and 613, the former being a portion of an old road and the latter being a strip sixty-six feet wide and 2850 feet long running through the farm of the appellant, in which a perpetual easement is taken for the construction and maintenance of the new aqueduct at a depth below the surface varying from one hundred to two hundred and fifty feet Ho other interest or right in the land of the appellant is taken, and the city has acquired no right to interfere with the surface of the land of the petitioner at any place or in any manner.

The appellant filed a claim for $85,000 damages which she claimed to have sustained by reason of the construction of the aqueduct “by the destruction of water privileges, injury to the buildings and other, structures by reason of blasting, etc.,” and at the close of her case she filed an amended claim in the same language increasing her claim for damages to $174,588.69.

The commissioners awarded the claimant $6,057.70 for all her damages by reason of the acquisition, use and occupation of the real estate for the purpose indicated in the statute under which the condemnation proceedings were conducted.

It appeared from the testimony introduced before the commissioners that an artificial reservoir for water had been constructed upon the premises with a dam to retain the water, and that a road or drive way had also been built and some other minor improvements had been made, and the commissioners excluded evidence of the cost of such improvements and such exclusion is now arraigned for error.

There is no force in the exception to the ruling of the commissioners for several reasons. There was no proposition to take the land or any part of it, and if there had been, the value of the portion taken and the injury to the portion remaining was all the claimant could ask, and the question had no relevancy to any legitimate line of inquiry to be pursued before the commissioners.

Moreover it was not within the plaintiff’s demand, she only claimed damages for injury to the structures, and the expense of their construction years ago could in no manner tend to illustrate their value now or the extent of the injuries which they had sustained. The testimony would have raised collateral issues in no way material to the main question, and it was properly excluded.

The claimant desired to prove by a house carpenter the natural effect of the concussion caused by the explosions in the excavation for the aqueduct upon the water supply on the surface, and the testimony was excluded, and its rejection was in accordance with the plain rules of evidence.

Again, objection was made to the reception of the opinion of a witness, whose occupation was boring, wells for water supply, and who had been extensively engaged in such business for twenty years, respecting the depth to which it would be necessary to bore on the Biggies property to obtain a supply of five thousand gallons of water per day, but the exception presents no error.

Respecting the exclusion of evidence of the value of the fee of the strip of land over the aqueduct, it is unnecessary to do more than refer to the case of Mallory and others, which was similar to this and arose under the same statute, decided by us in July last, where we held that the city acquired an easement only for the aqueduct, and did not take the fee of the land through which it was built. 32 N. Y. State Rep., 969.

We examined the question in that case with great care, and assigned our reason at some length for the conclusion we reached.

Complaint is made by the appellant of the small size of the award, but the testimony satisfies us that it is ample to cover all the injury to the property caused by the construction of the aqueduct.

The claim of the appellant was for damages sustained by reason of the destruction of water privileges and injury to buildings and other structures, but the bulk of the testim'óny was directed towards the diminution of the supply of water, and it was not made clear that it would be very serious ; one witness said he found nine feet of water in the well at the house, and another witness testified that Mr. Biggies, the husband of the claimant, expressed to him his determination to drain the artificial pond, and said if he could not empty it in any other way he would put down the dam. Mr. Biggies did not contradict or deny that statement, although it proved him guilty of deception and false pretense, and tainted the claim with dishonesty and fraud.

In fact, the enormous amount claimed for damages is a manifest effort at imposition, which was doubtless detected by the commissioners. A claim of $174,588.69 for damages to a piece of property worth less than $40,000, is very suggestive of an effort at deception and imposition.

The award and the order confirming the same should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.


author: Barnard, P. J.

text:
    Cyrus J. Marshall, Resp’t, v. Mary E. Reynolds and Ira C. Reynolds, App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    Mortgage—Consideration.
    Certain premises were conveyed to defendant by her father-in-law and she gave back a mortgage for $2,500 thereon. In an action to foreclose the mortgage defendants claimed that the mortgage was without consideration, the deed being given in consideration of a release by defendant’s husband of his share in his father’s estate. The father testified that the mortgage was taken by him to be paid so as to preserve the equities between his children and it appeared that interest had been demanded and no claim was then made that the mortgage was not a valid security. Meld, that the evidence justified a finding that the mortgage was given for value and was to be paid.

      Appeal from judgment of foreclosure and sale.

      James B. Lockwood, for app’lts; David FI. Hunt, for resp’t.
   Barnard, P. J.

On the 1st of April, 1885, the defendant took a deed from her father-in-law expressing a consideration of $4,000. On the 13th of April, 1885, Mary Reynolds executed to her father-in-law a mortgage on the premises conveyed to her by the deed for $2,500. The plaintiff owns the mortgage and it has never been paid. The answer avers a want of consideration for the mortgage. Ira 0. Reynolds, the husband of Mary Reynolds, the grantee, testified that the deed was given to his wife by his father and that the mortgage was taken back so as to prevent the son from selling the place. The son Ira gave to his father a release of all claim on the estate of his father. The father testified that he had advanced to his son besides this deed, $2,000, and that the son had his share and that the mortgage was taken to be paid so as to preserve equity between his children. The parties differ entirely. The papers support the mortgage. It appears that the father asked both his son and his son’s wife for the interest upon it Mo claim was made by them that the mortgage was not a valid security. There is nothing in the evidence which would justify an appellate court in reversing the finding that the mortgage was given for value and was to be paid

Judgment affirmed, with costs.

Pratt, J., concurs; Dykman, J., not sitting.


text:
    Frank H. Matthews, Resp’t, v. Peter Gilleran, Def’t.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    1. Attachment—Affidavit.
    An affidavit for an attachment which states that deponent knows that plaintiff will not be able, with due diligence, to make personal service on defendant within the state; that defendant cannot be found therein and resides in another state where his time is passed in attending to his business, is sufficient.
    '2. Service—Publication.
    It is not necessary to publish or mail a copy of the summons where personal service has been made without the state.
    Appeal from order denying motion of Keyes D. Browne, assignee for creditors of defendant, to vacate an attachment.
    On or about March 25, 1889, an attachment was granted in this action upon the affidavit of a clerk of plaintiff,which stated that deponent knew defendant, “ that he knows the residence of the latter. That the latter resides at Mohegan, in the state of Rhode Island. That his post office address is the same and that he is of full age. That defendant has property in the state of Mew York, viz., a large •quantity of woolen goods, or so called woolen goods, being cloth, now in the hands of the firm of Jacob Wendell & Company, his ■consignee thereof, for sale at their stores, Mos 61 and 63 Worth street, in the city of Mew York. That deponent is personally familiar with all the facts or allegations stated in the complaint and knows that the same are true. That defendant is indebted to plaintiff in the sum of $2,183.92 for wool in bags sold and delivered by plaintiff to defendant on November 3d and December 5th last, to be paid for, part in sixty days and part in ninety days from those dates, all as- stated in the complaint. That deponent knows that the plaintiff will be unable, with due diligence, to-make personal service of the summons in this action on said defendant within this state. That the same cannot be so served because he cannot be found therein to make service upon him. That he cannot be found here, because he resides in the state of Rhode Island; that his place of business is in the state of Rhode Island. That his time is passed in said state in superintending the manufacture of woolen cloth, being the business carried on by him.”
    An order for the sei’vice of the summons by publication was also granted, and the summons and' copy order were served personally on defendant in Rhode Island.
    April 1, 1889, defendant executed an assignment for creditors to Keyes D. Browne, who, in June, 1890, moved to vacate ‘the-attachment on the ground of the insufficiency of the affidavit, and also on the ground that copies of the summons, complaint and order of publication were not mailed to defendant as required by the order.

      George W. Van Slyck, for app’lt; Sidney V. Lowell, for resp’t.
   Dykman, J.

This is an appeal from an order denying a motion to set aside an attachment issued against the defendant on. the ground of his non-residence, which is not denied.

The summons, complaint and attachment papers were served on the defendant personally in the state of Rhode Island after an order for service by publication had been obtained in the-action.

The grounds upon which the defendant based his motion were the insufficiency of the affidavit to sustain the attachment and the failure to make publication of the summons in pursuance of the order, in addition to the personal service of the defendant, outside of the state.

Neither of the positions are sustained, and the order should be affirmed, with ten dollars costs and disbursements.

Barnard, P. J., concurs.


author: Cullen, J.

text:
    Henrietta A. Longhead, App’lt, v The Dykman’s Baptist Church & Society, Impl’d, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    Wills—Devise—Society not incobpobated at testatob’s decease.
    By a testator’s will he devised certain real estate “ at the death of my wife ” to defendant, to be used as a parsonage, and provided that when the society ceased to use it for that purpose it should revert to his heirs-at-law. At the time of testator’s death defendant was not incorporated, but it was incorporated prior to the death of the widow. Held, that the devise was not intended to operate until the death of the widow, and that the-incorporation of defendant having taken place prior to that event it was competent to take.

      Appeal from judgment in favor of defendant.

      F. S. Barnum, for app’lt; Abram J. Miller, for resp’t.
   Cullen, J.

We assume the law to be that if the remainder given to the defendant by the testator’s will vested at the death of the testator, then the devise is void because at such time the defendant was not incorporated, and that the subsequent incorporation o£ the defendant during the life of the life tenant would not validate the devise. The law was so held in Owens v. Missionary Society, 14 N. Y., 380, and Marx v. McGlynn, 88 id., 368, and .the rule is recognized in Shipman v. Rollins, 98 id., 311. The question then arises whether the devise vested at the death of the testator, or that of his wife, the life tenant. The language of the will is “ At the death of my wife I give and devise, etc.” The natural reading of this language would postpone the devise till the death of the wife. But it must be conceded that the law .so favors the immediate vesting of estates that ordinarily, under a long line of decisions, the word “ at ” would be construed to refer to the time of enjoyment of the estate, not of its vesting. We think that this case is taken out of the ordinary rule by the limitations imposed on the devise. By the will it is provided that the land devised shall be used as a parsonage by the society and church, and that when the society ceases to use it as a parsonage, it shall revert to the testator’s heirs at law. The devisee could, therefore, not alien or dispose of it. The testator never contemplated that the devisee should have any advantage of the devise till the death of his wife. The right of property and -right of enjoyment were to go together, and under the will there could be no right of property apart from the right of enjoyment. If the society had been incorporated at the time of the testator’s death, ■and subsequently became extinct, the devise would have failed. It was thus necessary that the devise should survive till the death •of the life tenant to receive the devise; and thus the devise was necessarily contingent upon the existence of the devisee at ■the termination of the life estate. We, think, therefore, that we are justified in holding that the devise was not intended to -operate till the death of the wife, and, if that construction be correct, the incorporation and existence of the defendant at that period will, under Shipman v. Rollins, supra, render it a competent devisee.

The judgment appealed from should be affirmed, with costs.

Pratt, J., concurs.


text:
    Ammond Tonneson, App’lt, v. P. Sanford Ross et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    1. Master and servant—Negligence.
    A master is bound to use reasonable care to provide and employ competent and skillful servants and to discharge, on notice or knowledge, or the means of knowledge, any who fail to continue such.
    3. Same.
    Plaintiff, while in the employ of defendants, was injured by the negligent act of their captain, who controlled the machinery and who was drunk at the time. It appeared that this was his customary condition, which was known to plaintiff, who said nothing about it to defendants, and it was not shown that they knew of the captain's habits, although their superintendent was frequently at the place were they were at work. Held, that the questions of defendants’ knowledge and whether plaintiff was-guilty of omissions which precluded á recovery should have been submitted to the jury.
    (Pratt, J., dissents.)
    Appeal from judgment dismissing the complaint.

      J. Edward Swanstrom, for app’lt; Robert D. Benedict, for resp’ts.
   Barnard, P. J.

The defendants were contractors engaged in dredging the bottom of the Hudson river, near Weehawken. The-superintendent was one Yincent, and the captain in charge of the dredging machine was one Delamater. The plaintiff was an employe of the defendants, working on a scow which received the mud from the dredging machine. The dredging was done by steam, and the buckets were handed from the mud machine or dredger. The plaintiff had been at work but a few days for the defendants, the 21st to the 29th of September, 1888. On the 29th of September, 1888, while the defendant was at work on the scow, the captain, Delamater, who controlled the same from the pilot, house of the dredge, swung the bucket over and struck the shaft which the plaintiff was turning with a wrench. The wrench was made thereby to spring up so that it struck the plaintiff and seriously injured him, paralyzing his arm and breaking his jaw.

The evidence tended to establish that the captain was drunk at the time. The plaintiff had seen him drunk on three occasions during the employment of eight days. The captain always run the machine. The plaintiff did not tell the defendants of the fact that he was addicted to drink, and did not leave the employment on that account. It is easily to be inferred from the evidence that but for the recklessness caused by strong drink the accident would not have happened.

The captain had full view of the situation, and could regulate the bucket with certainty and precision if his judgment was not affected by his condition. Proof was given tending to show that the captain was in an intoxicated condition as often as two or three times a week, and this was his usual condition for nearly two years before the accident during all the time he worked for the defendants.

The defendants’ superintendent, Yincent, was at Weehawken every other day, and was there the day on which the accident happened. No direct proof was given that the defendants knew of the habits of Delamater. The plaintiff was nonsuited.

The rule of liability in the case is that the master was bound, to use reasonable care to provide and employ competent and skillful servants, and to discharge on notice or knowledge, or the means; of knowledge, any who faü to continue such. Laning v. N. Y. C. R. R. Co., 49 N. Y, 521.

The case of Chapman v. E. R. R., 55 N. Y, 579, aoes not. change this rule. The point decided in that case was that a master did not owe the same care in finding out bad habits after employment as they did in the original employment.

There was proof in the case that the defendant’s division superintendent knew of the drunkenness of the employe, and the court held that the action was made out so far as to go to the jury.

The superintendent was so frequently at the dredge during its use by Delamater, and the habits were proven to be so settled and continuous, that it was a question for the jury to pass upon as to his knowledge or means of knowledge.

Negligence is a question of fact usually, and whether the plaintiff was guilty of omissions which precluded his recovery, assuming the master’s negligence to be proven, was also a question for the jury. The character of the act, the circumstances of the case, and the condition of the parties, were things to be considered in determining the question of contributory negligence. Thurber v. Harlem B. M. & F. R. R. Co., 60 N. Y., 331.

The judgment should, therefore, be reversed, and a new trial granted, costs to abide event.

Dykman, J., concurs; Pratt, J., dissents.


author: Pratt, J. (dissenting).

text:
    John Thompson, Resp’t, v. P. Sanford Ross et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    Appeal from judgment in favor of plaintiff, entered on the verdict of a jury.
    The facts in this case are the same as those in Tonneson v. Boss.

      Robert D. Benedict, for app’lts; J. Edward Swanstrom, for resp’t.
   The court agree to affirm on the opinion in Tonneson v. Boss, supra.

Pratt, J. (dissenting).

The verdict for plaintiff went upon the sole ground that the defendants employed in their business an overseer or “ captain ” who was by his habits of intoxication rendered an improper person to be trusted with such work and that. defendants were chargeable with notice of his incompetence.

In answer to this it is shown by plaintiff’s testimony that he was fully aware of the captain’s incompetence and continued thereafter to work under him without objection or complaint

It appears that plaintiff’s brother worked under the captain two years before the plaintiff entered on the employment, and he testifies that during these two years the captain was an habitual drunkard.

Plaintiff testifies that before he went there he had often been told'that the captain was drunk, and that during his term of service and before the accident he had himself been a witness to the captain’s intoxication. Speaking of the captain he says: “I saw him like a crazy man pretty near every day * * * He looks drunk pretty near every day,” and goes on to say that before he went there his brother many a time told him the captain was drunk.

Upon this testimony it must be held that the plaintiff took the hazard of working under an intoxicated man.

The motion for nonsuit should have been granted.

Judgment reversed and new trial granted, with costs to appellant.

Judgment and order denying new trial affirmed on opinion in Tonneson v. Ross, with costs.

Barnard, P. J., and Dykman, J., concur.


text:
    Robert E. Smith, Resp’t, v. Theresa B. Collins et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    Building contract—Construction op—Sash.
    Plaintiff contracted to furnish certain materials for buildings, including window sashes, doors, blinds and all inside wood and glass work. The specifications provided for the material and manner of glazing, and included the glass of headlights over the doors, which was to be of a particular kind. The first payment was to be made “when the sash and standing trim panel backs ” were delivered. Held, that the headlights over the doors were not included in the term “sash;” that the specification that all sash should be glazed did not lequire that the glazing should be done before the sash was delivered, and the payment being due when such delivery was made, the owner was not justified in refusing payment, and plaintiff could stop the execution of the work and recover for what he had delivered.
    Appeal from judgment in favor of plaintiff.
    Action to foreclose a mechanic’s lien.

      C. D. Rust, for app’lts; Kellogg, Rose & Smith (Abram J. Rose, of counsel), for resp’t.
   Barnard, P. J.

The plaintiff agreed with Theresa B. Collins and her husband to furnish on or before September 30, 1887, “All wooden screens, standing trim and panel backs, water closet seats, panels to stairs, dressers, drawers, window sashes, doors, blinds and all inside wood and glass work required for twenty buildings,” which the owner proposed to erect in Brooklyn.

The houses were separate, six being in Prospect Place, four in Ninth street, and ten in Sixth street. The first payment was to' be made “when the sash and standing trim panel backs is delivered in Prospect Place houses, $2,400.” Only $1,590 of this payment was made. The plaintiff seeks to enforce a lien for the value of the property delivered and the owner asserts that the contract was not performed so as to entitle the contractor to the first payment. v

The .evidence shows that the parties disagreed as to the kind of glass to be furnished and this was submitted to arbitrators, who decided in favor of the claim of the owner.

Before the award was made the first payment was demanded and the dispute seems to turn on the sole question whether the word sash includes the headlights over the doors.

The specification to the contract under the term sash provides for the material and the glass and the manner of glazing and'includes the glazing and glass of the headlights over the doors. The doors are included in the second payment.

The vestibule doors are to be glazed with a particular glass and in a particular way. The specification cannot, therefore, include the vestibule sash nor the front doors under the term sash within the meaning of the clause regulating the first payment. The fact does not appear whether the head lights are part of the door; if it be such it is not included in sash for the first payment. If it be a separate frame over the door it was not properly sash, neither does sash include the glass as commonly understood. The agreement does not clearly include the glass in the term sash. It is not a necessary result, from the specification that all sash shall be glazed, to so read it that'the glazing shall be done before the sash is delivered. The payment being due, the owner was bound to pay it, and if she was wrong in refusing payment the contractor could stop the execution of the contract and recover for what he had delivered.

The proof was conflicting as to the value of this property. There is no such preponderance of proof as to call for a reversal of the judgment for that reason. On the contrary, the evidence of those who would be most likely to be informed of the value fully supports the finding.

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

Dykman and Pratt, JJ., concur.


text:
    The People, Resp’ts, v. Samuel Henschel, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    1. Excise—Complaint—Warrant.
    A complaint stating that defendant had no license, and, upon information and belief, that he sold intoxicating drink in quantities less than five gallons at an auction, and especially to certain persons named, supported by testimony of witnesses that defendant sold them lager beer, which was intoxicating, is sufficient to sustain a warrant for such offense.
    2. Same.
    Proof of sales of lager beer to different persons, and that lager is intoxicating, is sufficient to make a case for the jury. The qualification that one must drink enough of it to cause intoxication, is for the jury to pass upon.
    3. Same—Evidence.
    The complaint in this case is general, and. evidence of witnesses other than those who testified to support the complaint is admissible on the trial.
    Appeal from judgment of court of sessions, affirming conviction for a violation of the excise law in selling liquor without a license.
    Defendant was arrested upon a warrant issued upon an information charging the offense, as follows :
    “ William E. Mulford, being duly sworn, says that on the 10th a i Tv days April, 1890, he acted as clerk at the auction sale of the goods and chattels of Obadiah E. Kevins, deceased, at the late Kevins residence, in the town of Smithtown, Suffolk county, K. Y. That Samuel Henschel came on the Kevins premises with a wagon which had bottles filled with some material. That said Henschel has no license to sell strong and spirituous liquors, ale, wine and beer in quantities less than .five gallons. That deponent is informed and believes that said Henschel did at said place, on said days, sell large quantities of lager beer or intoxicating liquors in quantities less than five gallons, and especially that he sold such beer in quantities less than five gallons, at said place, to one Dennis Sullivan and Michael Degan,' Gideon Mapes and A. M. Brewster.”
    The information was supported by the affidavits of the persons named therein that defendant sold them, lager beer.
    On the trial other witnesses were allowed to testify to sales of lager beer made to them.

      Charles R. Street, for app’lt; Wilmot M. Smith, dis’t att’y, for resp’ts.
   Barnard, P. J.

The complaint was sufficient to give the justice jurisdiction. It was stated therein that the defendant had no license to sell either strong liquor or beer, and that he was engaged in selling, at an auction of one Nevins in Smithtown, intoxicating drink in quantities less than five gallons. The complaint as to the sale was on information and belief. Before the warrant was issued several witnesses made oath in support of the complaint that the defendant sold them lager beer which was intoxicating. That on one occasion he sold the stuff as ginger ale. The purchaser was compelled to testify that it was lager beer. The complaint and affidavits are, therefore, abundant to sustain the warrant of arrest for the misdemeanor charged. The evidence on the trial was sufficient to make a case for the jury to pass upon. Sales of lager beer were proven to have been made to different persons, and that lager was intoxicating. The qualification that one must drink enough of it to cause intoxication was for the jury. The complaint charges a sale without license of strong liquor and ale. No specification is made of the persons to whom the drink was sold. The testimony of the witnesses in support of the complaint did not restrict the complaint to sales to those persons. The complaint was general still, and the evidence of witnesses other than those who were subpoenaed to support the complaint was admissible. The offenses proven were all shown to be at the Nevins auction, and during the time the auction continued. The sentence conforms to the law; the justice could either fine or imprison, or he could do both, only the fine must be limited to fifty dollars or less, and the imprisonment to not exceeding six months. Code Grim. Pro., § 717.

The record, therefore, shows no errror, and the conviction must be affirmed.

Dykman and Pratt, JJ., concur.


text:
    Joseph Woerman, Resp’t, v. Berend Baas, Impl’d, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    Attorneys—Authority to sub—Power to receive interest in estate INCLUDES POWER TO BRING PARTITION.
    An incorporated society authorized to collect legacies, etc., for foreign heirs, received a power of attorney from heirs of an estate authorizing it to “ask, demand and receive for them all the estate, legacy, claim or interest to which we are entitled as heirs at law,” with full power of substitution. Held, that while such power was special and confined to this estate, it was general and full in respect to it and authorized the employment of an attorney to bring action for partition.
    Appeal from order denying motion that plaintiff’s attorney show his authority for bringing the action and that the attorney for the other defendants show his authority for appearing for them.

      Benjamin G. Hitchings, for app’lt; Frederick W. Holls, for pl’fif, resp’t; Richard M. Bruno, for def’ts, resp’ts.
   Barnard, P. J.

This is an action for the partition of lands. The defendant, Baas, is the executor of the will of William Bonthrop, and the plaintiff and other defendants are devisees of the lands in question under his will. The defendant, Baas, makes this motion to set aside the proceedings for want of power of the plaintiff to institute the action. The papers show that the devisees by a written power of attorney authorized the German Society of the city of New York “ our true and lawful attorney, in our place and stead to ask, demand and receive all the estate, legacy, interest or claim to which we are entitled as heirs at law, "giving and granting unto our said attorney full power and authority to do and perform all and every act and thing whatsoever requisite to be done in and about the premises as fully to all intent and purposes as we severally might or could do if personally present, with full power of substitution.” The German Society is a benevolent society recognized by Germany and incorporated in New York by an act of the legislature. . This company in addition to other duties as to emigrants, undertakes to collect legacies, estates and debts for residents of the German empire. The plaintiff’s attorney was employed by this German Society. The provision is sufficient. The society can demand and receive the estate as fully as the heirs could if present, and an attorney may be substituted for the purpose by the express words of the power. While general words do not enlarge the special grant of power, the whole instrument must be read together if thereby the words of the grant of power are made clear. The entire instrument read together gives a general power to settle up the estate of William Bonthrop and to demand and receive the shares of the principals in the power. While the power is special and confined to this estate, it is general and full in respect to it. Such a power is to be liberally construed and to include the subject of the agency. Craighead v. Peterson, 72 N. Y., 279.

The order should be affirmed, with costs and disbursements.

Dykman and Pratt, JJ., concur.


author: Pratt, J.

text:
    Jane E. Merritt, App’lt, v. John W. S. Gouley, Impl’d, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    1. Pleading—Frivolous answer.
    It is only in cases where the answer is so clearly bad as to require no argument or illustration, that the same can be stricken out as frivolous.

      2. Same—Answer.
    An allegation in an answer is not sham which is not shown to be false, • nor irrelevant if it sets up any defense which can be proved on the trial.
    3. Foreclosure—Counterclaim—Covenant of seizin.
    In an action to foreclose a purchase money mortgage in which judgment for deficiency is demanded, a breach of the covenant of seizin in the deed to defendant may be set up as a counterclaim.
    Appeal from an order denying motion for judgment on defendant’s answer as frivolous.
    This action is brought to foreclose á purchase money mortgage made by the defendant to the plaintiff, to secure payment of $6,000, the plaintiff having conveyed the premises in said mortgage described to the defendant for the consideration of $10,000, by deed dated February 18, 1882. The said deed contains the usual full covenants, and among them a covenant of seizin and right to convey. A judgment for deficiency is asked against the defendant.
    The, answer alleges that at the time of said conveyance Charles E. Purdy and William M. Purdy, then infants under the age of fourteen years, were seized in fee of an undivided one-half of said premises, and, by way of counterclaim, sets up his damages accruing from the plaintiff’s breach of the covenant of seizin.
    The defendant also alleges that he is ready and willing, and offers to reconvey to the plaintiff said premises, and to account for all rents received by him, upon the cancellation of said bond and mortgage, and upon receiving the amount paid to the plaintiff in cash as part of said consideration.
    The following is the opinion delivered at special term:
    Barnard, J.—The action is one for the foreclosure of a purchase money mortgage. The deed given -by the plaintiff to the defendant, Gmiley, contained a covenant that the plaintiff was seized of an unincumbered estate in the land and had good right to convey ; she only was seized of one-half of the land. This defendant went into possession and has continued in possession without interruption. The defendant sets up as a defense this breach of covenant as a counterclaim.
    There are many cases which hold that a failure of title cannot be set up as a defense to the foreclosure of a purchase money mortgage. Before the Code the cases were all intelligible and harmonious. The mortgage was foreclosed in equity and the broken covenant, if there was any, was to be sued at law.
    The statute of set off did not permit one in equity except it was also a set off in legal actions, and a breach of covenant was not one where the damages could be ascertained by computation or were not liquidated. The Code provides for a counterclaim sufficiently comprehensive to cover it
    The Code in § 501 provides, in an action on contract a counter- . claim may be set up for the breach of any other contract existing at the commencement of the action.
    A mortgage is a contract by specialty and the action is to enforce the lien on it. The claim set up by defendant’s answer is on contract and existed at the commemcement of the action; a suit might be commenced on the broken covenant without being dispossessed. It is only when the covenant goes solely to the possession that an action is premature before the possession is disturbed. So if there is no covenant of seizin and no disturbance of possession, a failure of title is no defense to the foreclosure. The cases which establish this are no authority for the proposition that a broken covenant will not be set up as a defense to the foreclosure. The motion to strike out the counterclaim is therefore denied, with ten dollars costs. Bathgatev. Haslcin, 59 1ST. Y., 533.

      Nelson H Baker (Smith Lent, of counsel), for app’lt; Julius J. & A. Lyons (Michael H. Cardozo and Edgar J. Nathan, of counsel), for resp’t
   Pratt, J.

This is a foreclosure suit of a purchase money mortgage, wherein a judgment of deficiency is prayed for in case a sale fails to produce an amount sufficient to pay the mortgage with interest and costs.

The answer, among other matters, puts in issue the amount claimed to be due by setting up a counterclaim for damages by reason of a breach of the covenant of seizin in the deed. The plaintiff moved to strike out the answer as sham and irrelevant, and for judgment upon it as frivolous.

It is a sufficient answer to this motion that it would require argument to prove that it was frivolous. It is only in cases where the answer is so clearly bad as to require no argument or illustration that the same can be stricken out as frivolous. Strong v. Sproul, 53 N. Y., 497.

Again, that part of the order was not appealable under § 537 of the Code of Civil Procedure.

The answer is not sham, for it. is not proved to be false, and it is not irrelevant if it sets up any defense that can be proved upon the trial.

The defendant had a right to contest the amount due, and it was a proper way to do that by setting up a counterclaim.

If the plaintiff, at the time the deed was delivered, had no title to or possession of the property, there was a breach of the covenant of seizin at the instant of- such delivery, which entitled the defendant to damages, and there is no reason in saying that he shall be driven to a separate suit upon that covenant when proper relief can be obtained in this one suit. The plaintiff asked for a personal judgment against the defendant upon an action of contract, and the defendant’s claim arises out of contract, and falls within the description of a counterclaim under the Code, § 501. Hunt v. Chapman, 51 N. Y, 555; Bathgate v. Haskin, 59 id., 533; Seligman v. Dudley, 14 Hun, 186; Wiltrie on Foreclosure, § 376.

It is true that it has been held that a breach of the covenant of a deed without eviction cannot be pleaded in bar of a suit to foreclose a purchase moneV mortuaere.

In McConihe v. Fales, 107 N. Y.. 404; 12 N. Y. State Rep., 279, it is held that a failure of title is no defense to a foreclosure suit without an allegation of fraud in sale or an eviction. But in that case there was no breach of covenant set up as a counterclaim to reduce the amount due in equity upon the bond. The late case of Kirtz v. Peck, 113 N. Y., 222; 22 N. Y. State Rep., 733, is to the same effect, but I. find no case decided since the enactment of § 501 of the Code which holds that a breach of the covenant of seizin cannot be set up as a counterclaim under such circumstances as exist here.

Order affirmed, with costs and disbursements.

Dykman, J., concurs; Barnard, P. J., not sitting.


author: Gray, J.

text:
    The People, App’lts, v. Frederick R. Gilman, Resp’t.

      (Court of Appeals,

      Filed January 20, 1891.)

      1. Bail—Recognizance.
    The statement of the offense charged is not of the essence of the undertaking of hail, nor does it bear very materially upon the obligation, and its omission does not render the undertaking void.
    3. Same.
    While the prisoner is in custody, whether that of the sheriff or surety, he is held to appear as well upon any other charge of crime.for which he may be subsequently indicted.
    Appeal from judgment of the supreme court, general term, second department, reversing judgment for plaintiffs on trial hy the court without a jury.

      Martin Heermance, district attorney, for app’lts; Herman Frank, for resp’t.

       Reversing 34 N. Y. State Rep., 639.

   Gray, J.

The defendant being sued by the plaintiffs as the surety upon an undertaking of bail, objects, in effect, that it was void and of no force, because the crime or charge was not therein specified. The occasion of its execution was the admission to bail of one Frank Cava, at the time in custody of the sheriff upon a charge of assault in the second degree. The instrument was a printed form, in the language of § 568 of the Code of Criminal Procedure, and the defendant became thereby surety for the prisoner's appearance, and for his being at all times amenable to the order and process of the court, unless his undertaking was rendered nugatory by reason of an omission to fill in the blank in the recital intended for the specification of the nature of the crime. The general term reversed a judgment recovered by the People, holding that in their opiniori the bail bond was void for the omission, and relying upon the authority of decisions rendered prior to the adoption of the present Code. But those decisions upon the question of recognizances taken under the Revised Statutes we do not consider to be controlling in this case. The written undertaking upon the bailing of prisoners is required by the Code of Criminal Procedure to be in “ substantially ” the form there given. It is a legal proceeding in the case by which the accused person is admitted to bail. He is not thereby discharged, but he is permitted to go in custody of his bail, instead of remaining in that of the sheriff. As it was said by Buggies, J., in Champlain v. People, 2 Comst., 82, his bail is bound to have him as much in the power of the court as if he were within the prison walls. Being a proceeding under the Code, an error or mistake in the undertaking will not render it invalid, unless it have actually prejudiced the defendant, or tend to his prejudice in respect to a substantial right. Code Grim. Pro., § 684.

The applicability of this section to the case of the surety is, in this respect, that he cannot claim the undertaking, formulated by the Code for the putting in of bail, to be void because of some defect in its preparation, unless it be one which prejudices the defendant in the cause. That, obviously, is not the effect here of the omission. The prisoner was still in custody, under the charge upon which arrested, and he could not be discharged until by order of the court. Nor does it have any effect upon the surety, or render his obligation an imperfect one which the law will not enforce. "Under the Revised Statutes the recognizance was a matter of record; being entered in the minutes of the court and the substance thereof being read to the person recognized as bail. 2 R. S., 746, § 24; People v. Kane, 4 Denio, 530.

In an action of debt on a forfeited recognizance, proof was required to be made of an ten try containing the acknowledgment of an indebtedness, the offense charged and the condition. The debt was then deemed conclusively evidenced by such record proof of the recognizance. By the present Code of Criminal Procedure a new practice is prescribed and a written undertaking is required to be put in. When executed in the form prescribed, or in substantial^ that form, the prisoner goes in custody of the person who has thereby become surety for his appearance, until the order of the court. As formerly, so ■now, being the voluntary act of the party, the undertaking permits the presumption of the regularity of the proceedings, and by coming into the proceeding in that manner, in behalf of the accused, the surety will be presumed to know upon what charge "the prisoner was held by the sheriff. The statement of the offense charged, therefore, is not of the essence of the undertaking of bail; nor does it bear very materially upon the obligation. It is rather a matter for recital and it bears upon the completeness of the instrument in form and historical detail. The undertaking binds the surety for the appearance of the prisoner, not merely to answer to that specific charge upon which he was admitted to bail, but, also, that he “ shall at all times render himself amenable to the order and process of the court, and, if convicted, shall appear for judgment and render himself in execution thereof.” While he is in custody, whether that of the sheriff or surety, he is held to appear as well upon any other charge of crime for which he may be subsequently indicted. The undertaking is in effect that the defendant in the proceedings shall be kept in custody and subject to the order of the court until discharged. When that occurs and not till then is the surety released. The consideration of the undertaking is the transfer of the prisoner from the custody of the sheriff to that of the surety, and provided that that instrument acknowledges an indebtedness conditional upon the performance of something to which a person may be legally bound under the Code, the law is satisfied and- omissions or mistakes such as we have here are not regarded.

The order of the general terip. should be reversed and the judgment of the special term should be affirmed, with costs.

All concur, except Ruger, Ch. J., not voting.


text:
    Charles R. Johnson, App’lt, v. The Union Switch & Signal Co., Resp't.

      (Court of Appeals,

      Filed January 20, 1891.)

    Appeal—Final judgment.
    An appeal from a general term, judgment affirming an order and an interlocutory judgment of the special term which sustained defendant's demurrer to the complaint with leave to amend within a certain time, which' is taken more than sixty days after the service upon the appellant of the copy of the judgment and notice of entry, cannot -be entertained by the court. It is not the final judgment.
    Appeal from judgment of the New York superior court, general term, affirming interlocutory judgment and order sustaining defendant’s demurrer' to complaint.
    Motion to dismiss appeal.

      G. W. Miller, for app’lt; Paul D. Cravath and John W. Houston, for resp’t.

       See 30 N. Y. State Rep., 806.

   Gray, J.

This appeal is from a general term judgment affirming an order and an interlocutory judgment of the special term, which sustained the defendant’s demurrer to the complaint, with leave to amend within a certain time on payment of, costs. The appeal to this court was taken more than sixty days after the service upon the appellant of a copy of the judgment at general term and notice of entry thereof, and this motion is to dismiss the appeal for not having been taken within the time prescribed by law. The appellant argues that the judgment is a final one and that he, therefore, has noticed his appeal in season. But he is in error, for the judgment was not the final judgrrtent which we are authorized to review upon an appeal. That must be a final determination of the rights of the parties. The judgment which was affirmed by the general term was interlocutory and in no respects final. It was entered before the expiration of the time allowed by the order for the service of an amended complaint, and, by its very terms, gave leave to the defendant to enter final judgment dismissing the complaint. The judgment of the general term, from which the appeal here was taken, merely adjudged that the order and interlocutory judgment sustaining the demurrer should be affirmed. That is not a judgment which finally determined the rights of the parties, for no judgment could accomplish that which did not dismiss the complaint. That was something which remained to be done before we could review the orders of the court, in the absence of the certificate of the general term provided for by the Code. Sec. 190, subd. 4. The general term judgment did not dismiss the complaint and was of no more importance for appeal purposes than the order. To complete the proceedings there was wanting the judgment adjudging upon the whole case.

This case seems to be quite within the principle laid down by the court in Elwell v. Johnson, 74 N. Y., 80.

The appeal should be dismissed, with costs of appeal and ten dollars costs of motion.

All concur.


author: Finch, J.

text:
    The New Haven Web Co., App’lt, v. Francis J. C. Ferris, Resp’t. The Armstrong Manufacturing Co., App’lt, v. Francis J. C. Ferris, Resp’t.

      (Court of Appeals,

      Filed January 20, 1891.)

    Arrest—In civil actions.
    Where affidavits used on applications for an order of arrest in an action on a debt show a fraud in contracting it or in seeking to avoid it after it was contracted, if the complaint does not allege and the proof show the fraud inherent in the contract made or attempted thereafter, a motion can be made under § 558, Code Civil Procedure, to vacate it at any time. Section 567 requiring such a motion to he made within twenty days, does not cover cases where the complaint is insufficient under the special provisions of § 549.
    Appeal from judgment of the New York common pleas, general term, reversing order of special term denying motion of defendant to va.cate order of arrest.

      Franklin Bien, for app’lts; Andrew Gilhooly, for resp’t.

       Affirming 3317. Y. State Rep., 61.

   Finch, J.

It must be assumed that the order of arrest was granted in this case under the provisions of § 549 of the Code, which permit it to be made where there was a fraud in the contracting of the debt or in seeking to avoid it after it was contracted. The affidavits used on the application are not printed in the return, and all we know about them is the apparent concession on both sides that they alleged as ground of arrest a fraud effected by a transfer of the debtor’s property with an intent to cheat his creditors. Assuming that to be true, it follows that to sustain an order of rrrest the complaint was required to allege, and the proof to show, the fraud inherent in the contract made or attempted thereafter. But the complaint when filed proved to contain no such allegation, and was simply a complaint on contract. Judg•mcnt was entered by default, and, as a judgment, was entirely regular, 115 N Y., 641; 24 N. Y. State Rep., 4, but left no basis for an arrest or an execution against the person.

By the terms of § 558 a motion to vacate an order of arrest if the complaint fails to set forth a sufficient cause of action as required by § 549, that is, if it fails to allege not only a debt but a fraud in contracting it, or trying to avoid it, may be made at any time after the filing or service of the complaint. The right so to move goes upon the ground that by omitting to allege the fraud and suing simply for a breach of contract the creditor has elected to waive or abandon, for the purposes of his judgment, the tortious element in bis cause of action or the fraud which followed it, and any consequent right of arrest which he may have had. But this provision the appellant claims is controlled and practically nullified by § 567, which authorizes generally a motion to vacate the order at any time before final judgment, or if the arrest was within twenty days before final judgment, at any time within twenty days after the arrest; and he contends that since this motion was not made until seven months after final judgment it came too late, and there was no jurisdiction to grant it. We ought not, however, to treat the two sections as inconsistent, and s'o destructive one of the otheri They may very well stand together upon the construction that one supplies the general rule while the other governs an exceptional and specific case, so that ordinarily the time within which the motion to vacate should be made is determined by § 567, but with the exception of cases where the complaint is insufficient under the special provisions of § 549. Thus understood collusion and inconsistency are avoided and the different time limitations have each their own application.

These views lead to an affirmance of .the order of the general term.

The order should be affirmed, with costs.

All concur.'


author: Per Curiam.

text:
    Warren Ackerman, App’lt, v. The Cobb Lime Co, Resp’t.

      (Court of Appeals,

      Filed January 20, 1891.)

    Evidence—Burden of proof.
    Upon the trial of an action to recover the proceeds of certain notes received by Brown, a common agent, in payment of goods of the plaintiff and wrongfully and erroneously paid by the agent to the defendant, the parties stipulated that either party might read entries from the account of the other as contained in the books of Brown. It appeared from said books that both parties had been paid for all goods sold up to July, 1884. It appeared that subsequent to that date Brown transferred more in amount of plaintiff’s notes taken for cement to apply on defendant’s lime account than he transferred to the plaintiff of the notes taken for defendant’s lime to apply .on the plaintiff’s cement account. Held, that plaintiff made out a case for recovering such excess of the notes taken after July, 1884, and the burden of proof was upon defendant to disprove the inference of indebtedness.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment for defendant entered upon the report of a referee.
    One John R. Brown acted as the common agent of the plaintiff and the defendant, at the city of New York, selling cement on commission for the plaintiff, and lime on commission for the defendant.
    In November, 1884, he made a general assignment for the benefit of his creditors, and he subsequently absconded; whereupon it was discovered by the plaintiff, that a number of promissory notes, representing upwards of $4,000, which had been received by Brown in payment for the plaintiff’s cement, had been by him turned over to the Cobb Lime Company on account of the sales of lime which he had effected in behalf of that company. The plaintiff brought the present suit to recover the aggregate amount which the defendant had realized upon such notes. A general demurrer was interposed to the complaint and the case was sent to a referee. Upon the trial • the parties entered into a stipulation which permitted either party to read entries from the account of the other, as contained in the books of Brown, the common agent. When all the evidence was in, it appeared not only that the Cobb Lime Company had received from Brown a considerable amount in the form of notes given to him in payment for the plaintiff’s cement, but on the other hand, that the plaintiff had received from Brown a considerable amount in the form of notes given to him in payment for the Cobb Lime Company’s lime. At the close of the case it was admitted by the counsel for the plaintiff that the proof did not disclose whether during the course of Brown’s common agency the plaintiff or defendant had received the larger amount of notes given for lime or cement of the other party. The referee dismissed the complaint on the ground that the evidence was insufficient to warrant a recovery by the plaintiff; and on appeal the general term affirmed his judgment.

      Rowland M. Hall, for app’lt; Wheeler H Peckham, for resp’t. x

       Reversing 21 N. Y. State Rep., 421.

   Per Curiam.

It appears by the books of Brown, which, by consent, were admitted in evidence, in connection with the accounts, that the defendant had been paid substantially for all the lime sold by Brown for them up to July 31, 1884; and the plaintiff, in like manner, for all the cement sold by him up to July 8, 1884. It was, therefore, a matter of no moment to either party whether Brown had, as respects transactions prior to these dates respectively, misapplied the notes taken for the property of the respective parties, by turning notes belonging to one over to the other. If, therefore, it had appeared, for instance, that the plaintiff had not received as many of the notes given for the defendant’s lime as the defendant had of notes given for the plaintiff’s cement, no cause of action would have been shown in plaintiff’s favor, because as the plaintiff had through Brown received full payment for his cement, he had nothing of which he could complain, although Brown had wrongfully used notes taken for cement in turning them over to the defendant.

The same would be true as to the defendant under similar circumstances.

Therefore, the admission made on the trial that it did not appear from the evidence which of the parties received from Brown during the course of his joint agency (which ran through five or six years prior to July, 1884), the larger amount of the notes of the other party, was not an answer to the case made by the plaintiff.

It appeared that subsequent to the balancing of thh accounts of the respective parties in July, 1884, Brown dealt with the notes taken on subsequent sales, the same as before, and the dealing continued up to his failure in November, 1884, and that during that time he transferred to the defendant inore in amount of the plaintiff’s notes taken for cement, to apply on defendant’s lime account, than he transferred to the plaintiff, of the notes taken for defendant’s lime, to apply on the plaintiff’s cement account. Both parties were entirely innocent, each supposing that the notes received represented sales of lime or cement furnished by the party receiving the note. Prima facie therefore, as it seems to us, the plaintiff made out a case for recovering as to such excess of the notes taken after July, 1884, for plaintiff’s cement, as was in defendant’s hands over .and above the amount of notes taken for defendant’s lime, after the same period, received by plaintiff. As the evidence stood the burden was cast on the defendant to disprove the inference of indebtedness to the plaintiff arising from the circumstances.

We do not see that the action was by the' stipulation turned into an action in equity for an accounting, but even in that view, prima facie, there was a balance due tojke plaintiff.

We think the judgment should be reversed and a new trial granted.

All concur, except Peckham, Gray and O’Brien, JJ., not voting.