text:
    WILLIAM M. ALBERTI, Respondent, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Appellant.

      Common earner of passengers — liability for injury sustained by a passenger— what testimony is admissible to prove damages — right of an attorney to permit a physician who has attended his client to testify— Code of Civil Procedure, sec. 884 — when a verdict will not be set aside as excessive.

    The plaintiff while occupying, as a passenger of the defendant, a berth in a sleeping car was struck and injured by a collision between that car and the door of a car in a passing freight train. The freight car had been injured by a collision with the rear of a standing train, the collision having been seen by the defendant’s servants, who, beyond repairing the brake, made no examination of the injured car.

      Meld, that, under the strict rule prescribing the duty of a common carrier of passengers, this was sufficient proof of negligence to sustain a verdict awarding damages to the plaintiff for the injury sustained.
    The plaintiff, who was a young married man, testified that he was employed as . a collector and salesman, and that he supported himself and his wife solely by his own earnings.

      Held, that the testimony was admissible, as his earning power was an item of damages
    The physician who attended the plaintiff was sworn upon the trial. An objection having been taken by the counsel for the defendant, under section 834 of the Code of Civil Procedure, the provisions of that section were waived by the attorney for the plaintiff.

      Held, that this was sufficient to render the evidence admissible.
    The plaintiff, who was thirty years old, was, before the injury, in good health and had been well educated. He was married, and both himself and his wife depended for their support upon his labor. He was so injured by the collision that he could do nothing. It appeared that his legs were drawn up, and would remain so until he died ; and that while he might live for some years, suffering in body and mind, he would never improve physically.

      Reid, that a verdict of $35,000 was not excessive.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury at the Orange County Circuit, and from an order denying a motion for anew trial made upon the minutes of the justice before whom the action was tried.
    This action was brought to recover damages for injuries sustained by the plaintiff in a collision upon the railway of the. defendant, while a passenger upon one of its regular trains.
    It appears by the evidence that on the 24th day of July, 1885, at Jersey city, the plaintiff purchased a ticket which entitled him to be carried upon the railway of the defendant from that point to Niagara Falls and return, and that at the same time he purchased a ticket which entitled him to occupy a berth as far as Ilornellsville in one of the regular sleeping cars carried upon the railway of the defendant. At 6.30 p. m. of that day, the plaintiff entered into one of the regular sleeping cars forming a part of one of the regular trains of the defendant, for the purpose of making such journey. When the train of the defendant, upon which plaintiff was, as such passenger, was near Oxford in the county of Orange, N. Y\, it was struck by, or came in collision with, the side or door of a freight car, which was going in an opposite direction upon defendant’s railway, and the plaintiff ivas struck and seriously injured by the timbers of the side of the car in which he was, or by the timbers or door of the freight ear, with which it collided.
    The jury, upon all the evidence rendered a verdict in favor of plaintiff for the sum of $25,000.

      Lewis E. Carr, for the appellant.

      P B. McLennan, for the respondent.
   Barnard, P. J.:

The evidence in this case shows an exception to the ordinary rule in respect to proof of negligence upon the part of the defendant which occasioned the injury. The plaintiff was a passenger in the defendant’s car for Jersey City, going west, on the 24th of July, 1885, and while traveling upon his journey he was suddenly injured. While the injury would not presumably have happened without some neglect, it is sufficient to prove the injury and call upon the defendant, which is a common carrier of passengers, to explain the cause of the accident. (Seybolt v. N. Y., L. E. and W. R. R., 95 N. Y., 562.)

The proof, however, is given as to what probably caused the injury. A door from a freight car, attached to a train going east, became detached and was cast against the passenger train. This car had been injured by a collision with the rear of a train standing on the track. The car in question was running down a grade and, in consequence of a' defective brake, could not be stopped. The shock was severe, and examination subsequent to the accident disclosed serious injury. The defendant’s servants saw the collision, but,, beyond fixing the brake, made no examination of the car. Under the strict rule of a carrier’s duty, this was a sufficient proof of neglect. The carrier was bound to examine the car to see if it was' injured, and thereby prevent danger therefrom.

The sole questions which remain are those arising upon the trial. The plaintiff was a young married man who was employed by a lumber firm as collector and salesman. He testified that he supported himself and his wife solely by his own earnings. Great stress is laid upon the exception taken by the defendant to the admission of this proof. It seems to be admissible for two reasons. In the first place the earning power of the plaintiff was an item of damage. He supported from his labor, solely, his wife and himself. This is proven to have realized over $1,000 a year. The earning power was not aided by other means. Again the defendant gave-testimony tending to show that the county physicians who attended him for his hurts were not specially well skilled in such phases of injury as resulted from the wounds received. It was proper to' show that the plaintiff used such means of repair and restoration as his circumstances permitted. The physician who attended the' plaintiff was sworn upon the trial. Upon being objected to, under 834, Code Civil Procedure, the attorney and counsel waived the provision of the section. This was sufficient. The section in question was for the protection of the patient. His case required the testimony of the witness, and in, all which relates to the management of the trial the, attorney represents and binds the client. (Mark v. City of Buffalo, 87 N. Y., 185.)

The photograph was proven to be correct. The enlargement, by reason of the camera being placed near the subject, was explained, and that the representation in respect to the drawing up of the limbs was a, correct one. The evidence carries it within the case of Cowley v. The People (83 N. Y., 464). The medical testimony objected to was properly received. Q. If you can speak with reasonable certainty you may state. A. I can only give you the probability, from the history of other similar cases. You may do that. * * * “I should expect he might live several vears in very much the same condition we see him to-day. I don’t think his condition will ever improve.” Another witness is asked for his opinion as to the natural and ordinary cause of the disease, replied that it might be for years that the plaintiff would remain in the present condition, but that in his opinion he would never be better. These questions seem to be based upon the case of Strohm v. New York, Lake Erie and Western Railroad Company (96 N. Y., 305). Especially was this so when there was evidence in the case given by witnesses for the defendant, that the injury was trivial and would be soon repaired.

The damages were not excessive, assuming the facts which have been found by the jury. The age of plaintiff is thirty years. He was a healthy young man before the injury. He was well educated, having been graduated from Cornell University in 1879. He was married, and both himself and wife depended for support upon his labor. He was so totally destroyed that he can do nothing. His legs have drawn up, and so they must remain until he dies. He is helpless, and may be suffering in body and mind for some years, but he will never improve, physically. If any case can be proven to justify a verdict for $25,000, this seems to be such a one. A large verdict was sustained by the Court of Appeals for an injury somewhat similar in its results.

The judgment should, therefore, be affirmed with costs.

Dykman and Pratt, JJ., concurred.

Judgment and order denying new trial affirmed, with costs.


source: Caselaw Access Project

author: Barnard, P. J.:

license: Public Domain

text:
    PETER HARTWIG, Respondent, v. THE BAY STATE SHOE AND LEATHER COMPANY, Appellant.

      Contract for the employment of convicts — the contractor is liable to one injured by defects in the machinery furnished by him.

    The plaintiff, a convict in the Kings County Penitentiary, was let and farmed out by the county authorities to the defendant, a corporation, which hired the services and labor of a large number of convicts who were employed by it in making boots and shoes. The prison authorities were, by the terms of the contract, to enforce the performance of the day's work, and the defendant was to furnish “all the tools, machinery and stock necessary” for th.e employment. The plaintiff, who had been injured while using one of the machines designed to mould the soles of shoes, brought this action to recover the damages thereby sustained, alleging that the machine by which he was injured was out of repair and dangerous, and that the defendant had notice of its condition.

      Ileld, that while the usual relation of master and servant did not exist, because the labor furnished was compulsory, yet the defendant owed a duty to the convict which required him to furnish machinery fitted to and sufficient for the work, and to keep the same in constant repair.
    That the plaintiff was the defendant’s workman, though his wages went to the ' county of Kings.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury at the Kings County Circuit, and from an order denying a motion to set aside the verdict and for a new trial, made upon the minutes of the justice before whom the action was tried.

      W. C. Beecher, for the appellant.

      Chas. J- Paterson, for the respondent
   Barnard, P. J.:

The plaintiff was a convict in the Kings County Penitentiary. The defendant is a corporation. The county authorities let and farmed out” to the defendant, a large number of convicts to be employed in making boots and shoes. The defendant hired the labor and service of the convict. The plaintiff was one of the men included in the contract. The prison authorities, by its terms, were to enforce the performance of the day’s work, and the defendant was to furnish “ all the tools, machinery and stock necessary ’’ for the employment. The plaintiff, while using one of the machines designed to mould the soles of shoes, was injured.

The action is based upon an allegation that the machine by which the convict was injured was out of repair and dangerous. While the usual relation of master and servant did not exist, because the labor furnished was compulsory, the defendant must be held to have owed a duty to the convict in respect to the machinery to be furnished for the purpose of the work. This follows from the covenant itself. A contract 'for machinery carries with it an obligation to furnish machinery fitted to and sufficient for the work, and that it shall be kept in constant repair. The contract, it is true, was with the county of Kings, but the convict was essentially a servant of the defendant. By his crime he lost the power over his own freedom to contract and labor, and his services were let out to defendant as minors and apprentices are let out, by the authority of a temporary superior. lie was defendant’s workman, though his wages went to the county of Kings. The case fully establishes that the machine was out of order. The machine has a roller, which is essential to its proper working. This roller was worn ont. It was not round, and in consequence thereof, the stem was forced up before it should be and the machine prematurely, and without warning, closes. The evidence of both parties agree in this respect. The direct testimony of the plaintiff, who alone speaks of the accident, and the testimony of a witness for the defendant, who testified that the use of emery sand, which was proven to have been used, indicated that the machine was out of order. The verdict of the jury in favor of the plaintiff upon the issue as to the machine being out of order is sustained by the evidence. The plaintiff, therefore had, if he was free from contributory negligence, a cause of action. (Kain v. Smith, 89 N. Y., 375 ; Stringham v. Stewart, 100 id., 516.) Contributory negligence is usually a question for the jury, and this was a case upon which the evidence was not only contradictory, but, upon the evidence of the defendant, was such that it was susceptible of different deductions. The convict was doing his work at the machine when the roller slipped, and the machine became liable to close. The mould went out of place from the clipps of the roller. The convict attempted to replace it and the machine suddenly closed and smashed his finger. The evidence tends to show, on both sides, that this disordered machine gave notice of the disorder before it closed, and the contributory negligence consists in this fact. The answer to this, as matter of law, is that it was not uniform, “it was likely to close.” The jury were to pass upon the question, especially as a portion of the evidence consisted of a model of the machine which was shown to the jury. (Hawley v. Northern Central R. R. Co., 82 N. Y., 370.) Under the findings of the jury the case is a hard one. A convict is forced to work upon a dangerous machine and out of order. The defendant’s foreman knew of the liability to injury and made no repair. The man kept on until he was injured by this defect.

The judgment should be affirmed with costs.

Pratt, J., concurred.

Judgment and order denying new trial, affirmed with costs.


text:
    JERUSHA VAUGHN, Respondent, v. THE VILLAGE OF PORT CHESTER, Appellant.

      Puyment of a void assessment under protest' — when it will not be deemed a voluntary payment. -
    The complaint in this action, brought to recover money paid to the defendant for an assessment for local improvements, alleged that the plaintiff had been compelled to make the payment in order to give a good title to the premises under an agreement which she had made for the sale thereof; that the said assessments were illegal and void, and had been declared so to be by judgments of this court.

      Held, that as the assessments, although in fact void, were an apparent lien upon the premises, the money in question was paid under a duress of goods which entitled the plaintiff to recover it back from the defendant.
    Appeal from an interlocutory judgment entered upon an order made at the Westchester County Special Term, overruling the defendant’s demurrer to the plaintiff’s complaint.

      The action was commenced January 2, 1886, and was brought to recover from the defendant the sum of $940.20 paid by the plaintiff to the defendant for local assessments imposed on her premises for the grading of Haseco and Irving avenues in the' village of Port Chester.
    The complaint also asks for judgment that the assessments maybe declared illegal and void and be vacated and set aside. The complaint alleged, among other facts, the following: That the defendant is a municipal corporation organized under the laws of this State ; that on the 24th day of January, 1880, the plaintiff, in order to give good title and convey certain real estate in said village of Port Chester, was obliged to and did pay under protest.the sum of $940.20, to the defendant for assessments imposed on said premises for the grading of Haseco and Irving avenues, and that she was compelled to pay said sum in order to carry out her agreement to convey to the purchaser, and reserved the right to sue for and recover the amount so paid. That said assessments were illegal and void and were subsequently declared illegal and void by judgments of this court; that the plaintiff before the commencement of this action demanded the return of the money so paid, and defendant refused to pay the same.

      Maurice Dillon, for the appellant.

      Wilson Brown, Jr., for the respondent.
   Barnard, P. J.:

The money in question was obtained by what is legally known as duress of goods. The village had worked and graded two of the avenues of the village, Haseco and Irving avenues. The corporate power to impose an assessment on the plaintiff’s lands therefor, was exceeded, and the assessment attempted to be imposed was illegal and void. The assessment remained an apparent lien on the land, and, under this condition of the facts, the plaintiff agreed to sell her land free of incumbrance. The purchaser refused to take title, and the plaintiff was compelled Dy the defendant to pay the assessment or to pay damages for breach of covenant to the purchaser. The assessment was paid by the plaintiff to the defend ant and received, under the plaintiff’s protest that the tax was illegal and void, and that she would sue to recover the same. The payment was not a voluntary one. “ To constitute a voluntary payment the party paying must have the freedom of exercising his will. When he acts under any species of compulsion, the payment is not voluntary. If a party has in his possession goods or other property belonging to another, and refuses to deliver such property to that other unless the latter pays him a sum of money which he has no right to receive, and in order to obtain possession of his property he pays that sum, the money so paid is a payment made by compulsion and may be recovered back.” (Scholey v. Mumford, 60 N. Y., 498.) This principle covers the facts in this case.

The defendants held a void lien on the plaintiffs property, and used it to obtain, against the plaintiff’s will, the amount thereof, or to subject her to a loss of the sale of her property, and, perhaps, to an action upon the covenant for a clear title. Under these circumstances equity will not justify a retention of the money.

Order and judgment affirmed, with costs.

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

Order overruling demurrer to plaintiffs complaint, and judgment thereon, confirmed.


text:
    THE PHŒNIX IRON COMPANY, Appellant, v. THE VESSELS, the “HOPATACONG” and “MUSCONETCONG,” their Taokel, Apparel, etc., Respondents.

      Proceeding to enforce alien on a vessel — 1862, chap. 483 — the lien is not lost by the acceptance of notes if such acceptance is induced by the fraudulent concealment of the debtor — when the lien attaches to vessels built on the order of a foreign corporation — when, for materials furnished but not yet put into the vessel.

    In this proceeding, instituted under chapter 483 of 1863, providing for the collection of demands against ships and vessels, it was shown that between August, 1880, and October, 1884, the plaintiff sold and delivered, at Newburgh, N. Y., to the firm of Ward, Stanton & Co., ship builders at that place, iron work designed to be used by the said firm in constructing two iron ferry boats for the Hoboken Land and Improvement Company (a New Jersey corporation), under a contract entered into by the said firm, by which it agreed to build the vessels for a fixed sum On November 15, 1884, the firm, being unable to complete the vessels, conveyed them to the corporation in an extremely unfinished condition, and shortly thereafter made a general assignment for the benefit of creditors. On November 21,1884, the firm inclosed by letter, notes payable at a future time, for the iron work purchased of the plaintiff, although no credit- was provided for by the agreement for its sale. These notes were accepted by the plaintiff in ignorance of the condition of the firm and of (he change in the title to the vessels.

      Held, that such acceptance did not deprive the plaintiff of the lien upon the vessels .to which they were entitled by the act of 1862.
    That as the court found that the firm, at the time of sending the notes, was insolvent, and knew of its hopeless insolvency and of its inability to pay the notes, it erred in refusing to find that they concealed these facts with the fraudulent intent to obtain credit on the notes.
    That as the contract was made in this State, and the sale was not complete until a delivery was made, the right of the plaintiff to a hen was not affected by the fact that the order was given by a foreign corporation.
    That the materials furnished by the plaintiff were a basis for a lien, although they were not actually put into the vessel at the time the action to enforce the lien was commenced.
    Appeal from a judgment, entered in Orange county upon the trial of this action by the court without a jury,
    This is a proceeding under chapter 482, of the Laws of 1862, “ An act to provide for the collection of demands against ships and vessels.”
    “On July 23, 18S4, the ITobohen Land and Improvement Company (a New Jersey corporation) entered into a contract with Ward, Stanton & Co., shipbuilders of Newburgh, N. Y., for the construct tion of two iron ferry boats to cost about $150,000. Ward, Stanton & Co. then wrote a letter to the Phoenix Iron Company, stating that they had taken a contract to build the boats in question and required about 100 tons of iron angles, and asking the price thereof. The Phoenix Iron Company answered giving a price, which Ward, Stanton & Co. accepted. Pursuant to the contract thus made, the Phoenix Iron Company delivered to Ward, Stanton & Co., at New-burgh, all the iron angles used in constructing the boats in question, amounting in all to $5,244.39. The first delivery was made August 5, 1884, and the deliveries continued from time to time until October 17,1884, when all the angle iron was fully delivered.”

      E. A. Brewsler, for the appellant.

      Albeit <& Fuller, for the respondents.
   Barnard, P. J.:

The firm of Ward, Stanton & Co., purchased iron work of the plaintiff, which was designed to enter into the construction of the two steamers in question.

The greater part of the articles ordered went into the vessels. The sale provided for no credit. The proof shows that the delivery of the iron commenced early in August, 1880, and continued until October, 1884. On the 15th of November, 1884, Ward, Stanton & Co. conveyed to the Iloboken Land and Improvement Company, the two steamers in an extremely unfinished condition. The firm had contracted to build the vessels for a fixed sum for that company and made the transfer by reason of an inability to complete them, for a short time thereafter they made a general assignment for the benefit of the creditors of the firm. On the 21st of November, 1884, the firm inclosed by letter, notes for the iron work payable at' a future time. The plaintiff accepted the notes in ignorance of the condition of the firm of Ward, Stanton & Co., and also of the change in respect to the title to the vessels in which the plaintiff was entitled to a lien under chapter 482 of the Laws of 1862. The judge has found that the firm at the time of sending the notes was insolvent, knew of its hopeless insolvency and of its inability to pay the notes. The court refused to find that the concealment of the insolvent condition was made with a fraudulent intent. This finding seems not only to be against the finding made, but against the evidence. If the fact be that the firm was bankrupt, without hope of an ability to pay the notes, and if the firm had transferred the property of the plaintiff to the improvement company and had received a valuable consideration therefor, and if as the law is well settled a note with a credit suspended the lien (Happy v. Mosher, 48 N. Y., 313), and if a.s to a greater or less part of the debt, the statute period to enforce a lien would run out before the notes matured, the evidence of fraud is conclusive. The mere concealment of the change of the condition of the firm in respect to the vessels is sufficient to establish fraud. (Anonymous, 67 N. Y., 598; Hennequin v. Naylor, 24 id., 139 ; Wright v. Brown, 67 id., 1.)

If this conclusion be just then there should be a new trial, for this failure to find a fact which destroyed ttie notes as suspending the lien.

The court found the contract to be one made in this State. The sale was not complete until delivery, although the order was given for the property by a foreign company. The claim was a hen against the vessels such as the proof shows them to be. This seems to be clearly established in Phillips v. Wright (5 Sandf., Sup. Ct., 342), and also that the materials furnished were a basis for a lien, although not actually put in the vessels at the time of the action to enforce the lien.

There should, therefore, be a new trial granted, with costs to abide event.

Pratt, J., concurred.

Judgment reversed, and new trial granted, costs to abide event.


author: Pratt, J.:

text:
    JOHN FAHERTY, Respondent, v. THE SCHUYLER STEAM TOW-BOAT LINE, Appellant.

      Motion for a change of the place of trial to the proper county— not affected by an amendment as to the place of trial in the complaint after a demand has been made

    In the summons and complaint in this action, Orange county was designated as the place of trial. The plaintiff resided in Dutchess county and the defendant in Albany county. The defendant having demanded a change of the place of trial to Albany county, the plaintiff served an amended complaint designating Dutchess county as the place of trial, but did not amend the summons.
    Held, that a motion thereafter made by the defendant to have the place of trial changed to Albany county, as the proper county, should have been granted.

      Rectorv. i he Ridgewood Ice Gorhpany (38 Hun, 293; S. C., affirmed, 101 N. Y., 656) followed.
    Appeal from an order made at the Dutchess county Special Term denying a motion for a change of the place of trial of the above entitled action.
    The summons and complaint both named the county of Orange as the county in which the plaintiff desired the trial. The plaintiff resided in the county of Dutchess, and the defendant in the county of Albany. The defendant having demanded a change of the place of trial to Albany county, the plaintiff served an amended complaint designating Dutchess, as the trial county, but did not amend his summons. The defendant again demanded a change to Albany county, and finally made this motion upon the grounds that Albany was the proper county, and because the convenience of witnesses would be promoted thereby. The justice deciding the motion at the Special Term held that the amended complaint controlled the place of trial, and that tho convenience of witnesses would not be promoted by changing it from Dutchess to Albany county.

      W. Brothingham, for the appellant.

      E. A. Brewster, for the respondent.
   Pratt, J.:

As an original question we incline to affirm the disposition of the motion at the Special Term. The change in the phraseology of section 417 of the Code of Civil Procedure seems only to indicate that plaintiff must specify his desire about venue in the summons, whereas under the old Code he need not have done that. The word “designates” is used of the matter of venue in the complaint (§ 481), and the same word is used in all the subsequent references to the same point. (§§ 987, 985 and 988.) It is a stronger • and more suggestive word than “ desire; ” again the right to demand a change is predicated in the designation in the complaint, and not in the desire specified in the summons. When the demand is made the defendant must do just what plaintiff did in the summons, i. e., specify what he requires which is one of the meanings of the term desire,” except that he must specify a “ proper county,” while plaintiff might specify any county, and the action could be properly tried in the county thus specified by plaintiff in his summons, unless defendant made the demand and plaintiff consented or the court ordered a change. The word may is used of the action of the court, while must is used of the other cases.

And again, if the summons is to control, why require any designation in the complaint at all ? Besides this, the old rule, was according to the plaintiff’s contention, and, generally speaking, the Code was intended only to express the judicial interpretations of the old rule. And again, the only right which defendant gained by his demand was to have the action tried in a “proper county.” Ilis mere specification of the county which he desired, would not seem to render the county of plaintiff’s residence an improper county or make that of defendant’s the only “ proper county.” But Rector v. Ridgewood Ice Company (22 Weekly Dig., 551; S. C., 38 Hun, 293; affirmed, 101 N. Y., 656) seems in point, and to rest on a change respecting the right to amend as of course within twenty days under .section 542, i. e., the amendment must be without prejudice to the proceedings already had. It assumes that the demand for a change to the county specified by defendant in his demand, is a proceeding giving a right. That does not seem to us to be the purpose. For if the demand was not “followed by consent” under paragraph 985 •the court does not seem bound to make the order. It may do it. ,(§ 987.) Why go the court at all to effect the change if the .demand resulted in a right% It may be that the case was affirmed on a question of discretion by the General Term, but as briefly reported, it seems to hold the right to amend as of course is abridged as matter of law, that it was too late in that case as matter ■of law, and if so, it was too late m this one.

We, therefore, reverse the order with costs, on the question of •power alone, following what seems to be the rule established by the affirmance of the Rector case. But the order should especially show this fact so that plaintiff may have the benefit of the point in ■the question of power.

We exercise no discretion.

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

Order refusing to change place of trial reversed, and motion .granted, with costs to abide the event.


author: Pbatt, J. :

text:
    WILLIAM P. WILLIS and WILLIAM H. TOWNSEND, Respondents, v. AURELIUS S. SHARP, as Executor, etc., of FIDA C. SHARP, Deceased, Appellant.

      Direction to an executor to cwry on business — right of one selling goods to the executor to bring action in equity to charge the estate with the debt

    'The complaint in this action stated that the defendant was the sole executor of Mrs. Sharp, who was his wife; that in and by her will she expressly directed that a business be carried on by her executors ,f o.r .the benefit of her son; that such business was carried on, under the will, by the defendant as such executor; that in that capacity, he purchased goods of the plaintiffs which were necessary for and were used in such business; that he was personally insolvent; that the estate was solvent, and that the plaintiffs have no way of obtaining payment except out of the funds of the estate.

      Held, that the complaint stated a good cause of action m equity, and that a demurrer, interposed thereto upon the ground that it did not, was properly overruled.
    Appeal by the defendant from a judgment in favor of the plaintiffs, entered in Kings county upon andoverruling a demurrer interposed to the complaint upon the ground that it did not state a cause of action.

      Alexander V. Campbell, for the appellant.

      William S. Logan, for the respondents.
   Pbatt, J. :

This is an appeal from a judgment entered overruling a demurrer. The complaint states that the defendant is the sole executor of Mrs. Sharp, who was his wife; that her will directed expressly that the business be carried on by her executors for the benefit of her son; that such business was carried on under the will by the defendant as such executor: that in that capacity he purchased goods necessary for such business and used them in it; that he is personally insolvent; that the estate is solvent, and that the plaintiffs have no way of obtaining payment except out of the funds of the estate. The demurrer is upon the ground that the complaint does not state facts sufficient to constitute a cause of action. This is not an action at law to charge an executor personally upon a contract, but a suit in equity to charge an estate which has received the use and benefit of the goods in a business authorized to be carried on by the testatrix.

The will provides, in paragraph fourth, as follows :• “ It is my wish, and I hereby direct, that after my death some legitimate business shall be carried on by my executors for the benefit of ray said son, Harry, and that my said husband shall be retained as the manager thereof.” The debt in question was contracted in pursuance of this provision of the will, in a business carried on for the benefit of the estate. By carrying on a business he created a charge upon the estate. It was stated in the prevailing opinion in the case of Ferrin v. Myrick (41 N. Y., 315): “It ought to be added that in case of the fraud or insolvency of the executor, an equitable cause of action would probably be thereby created against the estate, which could be enforced in behalf of the creditor, and which would enable him to maintain a claim against the estate directly.”

In this case the contract was with the executor solely, as such; the executor had power under the will to make it, and the estate received the benefit of it. In no sense was it a claim against the executor individually, but it was a charge upon the estate in his hands. The suit was, therefore, properly brought, under section 1814 of the Code, against him in his representative capacity. Considering the insolvency of the executor, in connection with the other facts stated in the complaint, the plaintiff was clearly entitled to relief against the estate of the testatrix.

Can it be doubted, under this law, that the executor would have the right to carry on the business and to charge to the estate such money as he should properly pay out for its benefit ? If this be so, then the estate ought to pay the debt. Then what matters it whether it pays it directly to the creditor or by reimbursing the executor ? To hold that the executor was individually liable only, would permit the executor to carry on business for the benefit of the estate and the legatees, and leave the creditors without remedy. Such a result cannot be tolerated in a court of equity. The -case of Austin v. Munro (47 N. Y., 360) has no application to the present case, as that was a strictly legal action, based on the executor’s contract, and no insolvency was alleged.

We think the complaint stated a good cause of action in equity, and that the demurrer was properly overruled.

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

Order overruling demurrer to plaintiff’s complaint affirmed, vnth -costs-.


author: Pratt J.:

text:
    BERNHARD VETTERLEIN, Appellant, v. DEMAS BARNES, as Assignee, etc., Respondent.

      Order staying proceeding until costs awarded in a prior litigation are paid — not granted unless the parties and the cause of action a,re the same.

    The plaintiff, together with Theodore II. Vetterlein, as partners, commenced an action against the defendant, which terminated in a judgment for the defendant for costs, no part of which has heen paid. Thereafter the plaintiff commenced this action for the same cause of action as in the former case, hut against the defendant as an assignee.
    C pon an appeal from an order, made at a Special Term, staying all proceedings m this action until the payment of the costs adjudged against the plaintiff in the former action:
    Held, that the order should he reversed as the parties to the two actions were different, and the defendant in this action, as assignee, was an entire stranger to the other litigation.
    Appeal from an order, made at tlie Kings county Special Term, staying all proceedings in this action until payment of the costs of a former action, for which a judgment had been entered therein in favor of the defendant individually.

      Roger M. Sherman, for the appellant.

      J. A. Shoudy, for the respondent.
   Pratt J.:

The plaintiff, together with Theodore II. Yetterlein, as partners, commenced an action against the defendant, which terminated in a judgment for the defendant for costs, no part of which has been paid. Therefore, plaintiff commenced this action for the same cause of action as in the former case, but against the defendant as assignee.

On motion of the defendant, an order was made at Special Term staying all proceedings in this action until the payment of the costs adjudged against the plaintiff in the former case. It is a general rule in equity that a party having brought his adversary into court once by a cause of action, shall not be permitted to implead him again without paying the costs of the first unsuccessful proceeding. But this rule is only applied where the parties and the cause of action are the same. This is a suit between different parties. The defendant, as assignee, is an entire stranger to the litigation in the first suit. It is true that where the same title is drawn in question in the second action between the parties or privies to the first, the court will order a payment of costs of the first suit before they will suffer the second to proceed. (Jackson v. Edwards, 1 Cow., 138; Richardson v. White, 27 How., 155.) But these cases are not analogous to the present case. It would be manifestly unjust to permit the same title to be litigated twice by the same parties or their privies; but where another, defendant is sued, it presents an entirely different case.

The first action was against the defendant personally. This action seeks relief against a bankrupt estate only. As assignee in bankruptcy, the defendant is a stranger to the former proceeding and judgment, and has no interest in enforcing the payment of costs to himself individually. The case stands precisely the same as if the plaintiff had sued another and entirely different person from the one named in the first suit. No precedent is cited laying down the principle upon which this order is based, and we see no reason in equity for the granting of such a motion.

Order reversed, with costs.

Present — Barnard, P. J., Dykman and Pratt, JJ.

Order staying proceedings reversed, with costs and disbursements.


text:
    In the Matter of DANIEL J. McGRORY, as Supervisor, etc., Respondent, v. JAMES HENDERSON, Jr., Appellant.

      Proceedings by an officer to compel Ms predecessor to deliver up boohs— R. 8 ,pt. 1, ch. 5, tit, 0, art. 5, sec. 51 — the affidavit of the officer alleging a deliveiy must be made before the justice before whom proceedings are instituted.

    Pursuant to the provisions of article 5 of title 6, chapter 5 of part 1 of the Revised Statutes, the plaintiff, the supervisor of the town of Westchester, applied' to a justice of the Supreme Court to compel the defendant Henderson, his predecessor in office, to deliver a certain book belonging to the office of supervisor. Upon the day on which the order was returnable the counsel for Henderson appeared and presented an affidavit, made by Henderson before a notary, setting forth that he had delivered each and every book and paper in his possession or under his control as supervisor, within his knowledge, in any way belonging to or pertaining to the office of supervisor.

      Held, that the affidavit was fatally defective m having been made before a notary public, instead of having been made before the justice granting the order, as is required by section 51 of article 5, title 6, chapter 5 of part 1 of the Revised Statutes, and that its presentation did not either require a dismissal of the proceedings or the discharge of the defendant.
    Appeal from an order made by Mr. Justice Dykman, bearing date the 6th day of March, 1886, in a proceeding to compel James Henderson, Jr., to deliver a certain book belonging to the office of supervisor to complainant, as the successor of said Henderson, by which order said proceeding was adjourned to March 13, 1886, for the purpose of taking proofs of the parties as to the delivery of said book to James Henderson, Jr., and as to the whereabouts and custody of said book.”
    The applicant, Daniel J. McGrory, as supervisor, made demand on his predecessor, James Henderson, Jr., for all books, papers, and records belonging to his office, and particularly a certain book-belonging to said office, known as the “ Treasurer’s Book,” and upon his refusal to deliver it, made a complaint to a justice of the Supreme Court, who made the order requiring Henderson to show cause why he should not be compelled to deliver the book. The order was made returnable February 27th, 1886, at which time Henderson’s counsel appeared in court and presented an affidavit setting forth that Henderson had truly delivered to McGrory each and every book and paper in his possession or under his control as supervisor;, within his knowledge, and that he has not now, nor has he at any time since then, any such book described in the moving papers.
    This affidavit was not made before the officer granting, the order to show cause, but was made before Charles G. Banks, notary public.
    On 'this state of facts Mr. Justice Dykman refused to dismiss-the proceeding, but made the order to take proof and inquire into-the circumstances, from which order this appeal is taken.

      H. G. Henderson, for^the appellant.

      Martin J. Keogh, for the respondent.
   Pratt, J.:

The statute upon which this proceeding was based (art. 5, tit. 6, chap. 5, pt. 1, R. S.) provides-a scheme for obtaining books and papers withheld from their successors by public officers. Section 51 provides: “ If any person shall refuse or neglect to deliver over to liis successor any books or papers, as required in the preceding section such successor may make complaint thereof to * * * any justice of the Supreme Court * * * and if such officer be satisfied by the oath of the complainant and such other testimony as shall be offered, that such books or papers are withheld, he shall grant an order directing the person so refusing to show cause before him within some short and reasonable time why he should not be compelled to deliver the same.” Among other things section 52 provides: “ If the person charged with withholding such books or papers, shall make affidavit before such officer that he has truly delivered over to his successor all such books and papers in his custody or appertaining to his office, within his knowledge, all further proceedings before such officer shall cease, and the person complained against shall be discharged.” The plain requirement of this section is, that the person complained against shall make oath before such officer.

It was the duty of the justice, under the statute, to inquire into the circumstances, and the respondent was not entitled tov have the proceeding quashed till he appeared before the justice and made oath before him, as required by the statute. The object of the statute was to bring the person complained against into court, so that some inquiry might be instituted by the officer taking the affidavit.

The affidavit of the respondent was made before a notary public and is indefinite and evasive. In it he states that he had delivered “each and every book and paper in his possession or under his control as supervisor, within his knowledge, in any way belonging to or pertaining to the office of supervisor of said town, and that he has not now, nor has he at any time since then had in his possession or under his control, any such book or paper pertaining to such office.” This statement does not meet the affidavit of the complainant, as it does not deny that he had the special book called for by the complainant; he does not identify the books he gave to Briggs, and he does not swear that he delivered it to the complainant or that he filed it.

■ It is undoubtedly true that an affidavit made before the justice before whom the proceeding was had, in the precise words of the statute, would be sufficient. It is a general rule of pleading that whenever a statute gives a cause of action or defense, it is sufficient in declaring upon the pleading or statute to follow the words of the act. The objection, however, was fatal, that the affidavit was not made before the justice. It was an oath required by law to be taken before a particular officer, and, hence, section 842 of the Code of Criminal Procedure did not validate the appellant’s affidavit. The proceeding is still pending before the justice, and the applicant is entitled to go before him and make the required affidavit. Until he does so, he is not in a position to claim that the proceeding shall be discharged.

The order adjourning the proceeding was, therefore, proper, and must be affirmed, with costs and disbursements.

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

Order affirmed, with costs and disbursements.


author: Barnard, P. J. :

text:
    CHARLES STAACKE, by Guardian, Plaintiff, v. JOHN C. PREBLE and Others, Defendants.

      Practice — duty of the plaintiff to prepare and serve papers when exceptions are on'deredtohe heard in the first instance at the General lerm — Code of Civil Procedure, sec. 1000 — in case of his failure to do so judgment will he ordered for the respondent.

    Upon the trial of this action at the circuit, an order was made dismissing the complaint and directing that the exceptions he heard in the first instance at the General Term, and that the judgment he in the meantime suspended. The plaintiff having failed to prepare and serve the proper papers the respondent noticed the motion for argument.

      Reid, that he was entitled to an order overruling the exceptions and denying the motion for a new trial, and directing judgment to he entered in his favor.
    ■ Motion for a new trial, on exceptions ordered to be heard in the first instance at the General Term, after an order had been made at the Kings County Circuit dismissing the complaint and directing that the judgment be suspended until the hearing should be had.

      G. J. Patterson, for the plaintiff.

      John II. V. Arnold, for the defendant.
   Barnard, P. J. :

The plaintiff was nonsuited upon the trial before Justice Bartlett and a jury, and an exception was taken by the plaintiff’s attorney to the decision of the judge dismissing the complaint. Upon the motion of the plaintiff’s attorney the exception was directed to be heard in the first instance at the General Term, and, in the meantime, the judgment was ordered to be suspended. By section 1000 (Code Civil Pro.) it is provided that the exception “must be heard upon a motion for a new trial, which must be decided by the General Term.” By the same section it is provided that the motion for a new trial is “ deemed to have been made when the order was granted,” and either party may notice it for hearing at the General Term upon the exception. There was then a motion for a new trial pending in the General Term, which could be brought to a hearing by either party. The plaintiff was bound to prepare and serve the proper papers for the argument. This he has failed to do. The respondent has noticed the motion for the hearing deemed to be made at the circuit. He is entitled to a denial of the motion for a new trial as well by default of the moving party as upon the argument. Unless the order sending the exception to the General Term be revoked, the same must be decided by the General Term. If the party fails to appear at the General Term, the case may be decided against him by default, as in other motions.

Motion for a new triai denied and exception overruled, and judgment for defendant upon the decision at circuit, with costs.

Dykman and Pratt, JJ., concurred.

Motion for new trial on exception denied, exceptions overruled, and judgment of circuit affirmed, with costs.


author: Bartlett, J.: Barnard, P. J.:

text:
    JOSEPHINE M. L. FLEET, Respondent, v. CHARLES H. KALBFLEISCH and Others, Executors, etc., Appellants.

      Practice — a motion for a new trial based on the failure of the court to file a decision, may be denied, because of the laches of the moving party — Code of Civil Procedure, see. 1010.
    This action, brought by the plaintiff to compel the defendants, as executors of her father’s will, to pay a water tax and certain assessments alleged to be liens upon property devised to her by the testator, was tried at the Kings County Special Term in December. 1876. The court decided, orally, in favor of the plaintiff so far as the water tax was concerned, but against her as to the assessments, but never filed any written decision in the cause. In September, 1886, the plaintiff moved for and obtained an order granting a new trial, to which she claimed to be entitled, by the language of section 1010 of the Code of Civil Procedure, which provides that in such a case “ the court must make an order for a new trial, either absolutely or unless it (the decision) is filed, within a time specified in the order.”

      ILeld, that, assuming that the section is mandatory, whenever an application thereunder is reasonably made, inexcusable delay will deprive a party of the right to an absolute or conditional order for a now trial on the ground that no decision in writing has been filed, 'when that party has apparently acquiesced in the oral decision of the case, and has allowed his adversary in the suit to part with money on the faith of his apparent acceptance of the result.
    That as no adequate excuse was offered in this case for the extraordinary laches of the plaintiff in making the motion, the order granting it should be reversed.
    Appeal by the defendants from an order made September 27th, 186, at the Kings county Special Term, by the justice before whom the action was tried, granting a new trial, pursuant to section 1010 of the Code of Civil Procedure.
    The action is brought by the plaintiff, who is the daughter and devisee of the late Martin Kalbfleisch, to compel his executors to pay and discharge certain assessments for benefit, levied in installments, pursuant to chapter 228 of Laws of 1863, and a water-rate, levied and confirmed in the life-time of the testator on the realty devised by his will to the plaintiff.
    The answer admitted the duty of the defendants to pay the water-rate and offered to pay the same, and denied the validity of the assessments and the indebtedness of the testator thereon. The cause was tried at Special Term, December 28, 1876, before Mr.. Justice Pratt, without a jury. At the trial the court decided orally in favor of the plaintiff for the water-rate; but as to the assessments the court, on the authority of the case of the People, ex. rel., Ross v. The City of Broolclyn, then recently decided at General Term, held that they were invalid. This case of Ross was afterward reversed by the Court of Appeals. (See 69 N. Y. Rep., 605.) No decision in writing has ever been made, nor has any judgment ever been entered.

      William N. Bylcman, for the appellants.
    . JBdward V. B. Kissam, for the respondent.
   Bartlett, J.:

Under section 1010 of the Code of Civil Procedure, if the written decision of the court, upon the trial of an issue of fact or of law, is not filed in the clerk’s office within twenty days after the final adjournment of the term at which the issue was tried, either party may move at Special Term for a new trial upon that ground. ■- This case was tried at the Kings county Special Term in December, 1876. The action was brought to compel the payment of a water-tax and certain assessments, and upon the trial the court decided orally in favor of the plaintiff, so far as the water tax was concerned, but against her as to the assessments. The answer admitted the ■validity of the water tax, and offered to pay it, so that no issue was really litigated as to that part of the plaintiff’s claim. The trial court has never filed any written decision in the cause, and upon this ground the plaintiff insists that she is entitled to the new trial which was granted her nearly ten years after the action was originally tried. Referring to the language of section 1010, which provides that the court must make an order for a new trial, either absolutely or unless the decision 'is filed • within a time therein specified; she asserts that the court had no discretion to refuse to make the order under the circumstances of the case. '

We do not think the requirements of this provision of the Code are so peremptory that a litigant may not lose its benefits by gross laches. Assuming that the section is mandatory wherever an application thereunder is seasonably made, inexcusable delay will deprive a party of the right to an absolute or conditional order for a new trial, on the ground that no decision in writing has been filed, when that party has apparently acquiesced in the oral decision of the case, and has allowed his adversary in the suit to part with money on the faitli of his apparent acceptance of the result. No adequate excuse is offered here for the extraordinary laches of the plaintiff in making this motion. She says the trial court decided against her on the authority of a case in which the judgment has since been reversed by the Court of Appeals, but that reversal was in 1877, and this motion was not made until 1886. The plaintiff’s attorney declares that'he relied upon the late Philip S. Crooke, Esq., who was of counsel herein, to inform him of such reversal, but the information did not reach him before January, 1886. This apology for the delay seems to us utterly insufficient. The defendants are executors, who have made large payments in reliance upon the plaintiff’s apparent abandonment of her claim, and would be obliged to pay part of it personally if it were now enforced. In view of this fact, and the length of time which has elapsed since the oral judgment was pronounced, we are clearly of the opinion that the litigation ought not now to be reopened, under the provisions of section 1010 of the Code of Civil Procedure.

It is suggested by plaintiff’s counsel, however, that the motion which resulted in the order under review is analogous to a motion on the minutes for a new trial on account of error in the rulings of the judge. If it is to be regarded in this light, the order certainly cannot be sustained, as there is nothing in the appeal papers to show that any error was committed. The conclusion reached by the trial judge may have been entirely correct, notwithstanding his citation, in support of that conclusion, of a case which was subsequently reversed. The correctness of his rulings must be reviewed, if at all, upon an appeal from the judgment, which the plaintiff may still cause to be entered at any time. The case of Smith v. Frankfield (77 N. Y., 414) does not hold that a new trial should be granted because of the reversal of a decision cited in the opinion of the trial court, but does decide that when a judgment which has been proved as an estoppel is reversed there ought to be a new trial of the case in which the judgment was thus proved. No such quescion as was there involved arises here.

For these reasons the order appealed from should be reversed. Inasmuch, however, as the appellants avow their willingness to pay the Powers street assessment, this reversal should be on condition that said assessment be paid. No costs will be allowed to either party on this appeal.

Barnard, P. J.:

If the improvement under chapter 223, Laws of 1863, had been done under State authority, upon the credit of the whole city, and a tax of hve per cent of the gross amount had been directed to be raised by taxation yearly, there would be no serious question but that the land in question would have been free from lien. If the bonds of the city had been, authorized for the improvement, to be repaid by taxation at the rate of five per cent a year, the result would not have been different. By the law in question a district assessment was created, and the total cost of the work was to be imposed upon this district. Bonds of the city were given, and the total cost was to be collected in twenty annual installments. Each of these installments was decreed to be a part of the tax on said lands for the general expenses of the city. It seems plain to me that no portion of the assessment became a lien on the land until the portion thereof was added to the tax rate of the year. The assessment was spread over twenty years, a district of assessment was created, and the basis of taxation was established, but only the year installment became a lien, technically so called, when the supervisors signed the tax levy. Assuming, therefore, that the original decision was based upon the illegality of the assessment, the judgment itself was right.

The time is too long and the neglect too great to justify the application. The case was tried in 1876, and decided at once. The assessment was held legal in 1877. The judgment was silently accepted. No formal decision was made, and the executors and, apparently, Mr. Fleet acquiesced in it. The executors had paid out so far that if this assessment is put on the estate they will be the losers. The motion should, therefore, be denied for the long delay.

Judgment reversed, upon condition that the Powers street assessment is paid by the executors, with interest, as required by the law imposing the assessment.

Present — Barnard, P. J., Dr km an and Bartlett, JJ.

Order granting new trial reversed, on condition that the Powers street assessment be paid, with the interest on it.


author: Dykman, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. WILLIAM T. MONTEVERDE, Appellant.

      Public nuisance — what acts m/ust be shown to justify a conviction under section 385 of the Penal Code.

    The defendant was tried upon an indictment charging that he on Sunday, May 9, 1886, and on divers other Sundays,' was the owner, occupant, proprietor or lessee of a certain park and premises in Queens county, at which time and place he wilfully, wrongfully and unlawfully did permit and allow a large number of people to assemble to play and witness a game of base ball, and then and there allowed and permitted obscene, vulgar and profane language to be used, and did permit and allow great noise, confusion and uproar then and there upon the said premises.
    Upon an appeal from a judgment convicting the defendant of maintaining a public nuisance:

      Held,, that the judgment should be reversed as the indictment failed to charge the defendant with the commission of any unlawful act, or the omission to perform any duty; which were essential elements of the crime of a public nuisance as defined in section 385 of the Penal Code. (Barnard, P. J., dissenting.)
    Appeal from a judgment convicting the defendant of the crime of maintaining a public nuisance, rendered at the Court of Sessions of Queens county.
    The indictment alleges that “ the said William T. Monteverde, on Sunday, the ninth day of May, in the year of our Lord one thousand eight hundred and eighty-six,-and on divers other Sundays between that day and the day of taking this inquest, at the said town of Newtown, in the county of Queens aforesaid, was the owner, occupant, proprietor or lessee of a certain park and premises there situate (a more particular description of which is unknown to the grand jury aforesaid), and at said time and place, wilfully, wrongfully and unlawfully, did permit and allow a large number of people to assemble to play and witness a game, commonly known as base ball, then and there being played (a more particular description of which said persons, and of which said game of base ball, is unknown to the jurors aforesaid), and did permit and allow obscene, vulgar and profane language then' and there to be used, and did permit and allow great noise, confusion and uproar then and there upon said premises, and wilfully, wrongfully and unlawfully, did, by each and all of said acts, annoy, injure and endanger the comfort and repose of a considerable number of persons and offend public decency, etc.”

      Hollín Tracy, for the appellant.

      John Fleming, district attorney, for the respondent.
   Dykman, J.:

The defendant was indicted for a public nuisance, and when he was arraigned he interposed a demurrer to the sufficiency of the indictment, which was overruled. He was then tried upon a plea of not guilty and convicted, and the case comes here upon the indictment, the charge of the trial judge and the exceptions thereto without the testimony brought forward on the trial. The serious question in the case is presented by the indictment, which fails to charge the defendant with the commission of any unlawful act, or the omission to perform any duty, and in this State no-person can commit a public nuisance without being guilty of an unlawful act or omission. (Penal Code, § 385.)

The indictment charges that the defendant, on the 9th day of May, 1886, and on divers other Sundays, was the owner, occupant, proprietor or lessee of a certain park and premises in Queens county, at which time and place he wilfully, wrongfully and unlawfully did permit and allow a large number of people to assemble to play and witness a game of base ball, and then and there allowed and permitted bad language and great noise, confusion and uproar. There is no charge that he was present at the game or was aware of. the assemblage of the spectators, or that he induced the people to play or witness the game, or derived any benefit therefrom. Every allegation in the indictment may be'true, and 'yet the defendant be perfectly innocent of any crime. If the people invaded the premises of the defendant and played the game, and he found it beyond his power to prevent them and walked away, he permitted and allowed the transaction by not preventing the same, and yet snob conduct on bis part would not constitute the crime of nuisance. 'He owed no duty which he omitted to perform, and he did no unlawful act. There must be something more than mere negative tacit permission or allowance to constitute the crime of nuisance. There must be some unlawful action or participation of the accused, and that element is entirely wanting in this indictment.

The demurrer to the indictment should have been sustained, and the conviction of the defendant thereon is erroneous, and should be reversed.

Pratt, L, concurred; Barnard, P. J., dissented.

Conviction reversed.


text:
    CAMPBELL PRINTING PRESS AND MANUFACTURING COMPANY, Appellant, v. STILLMAN R. WALKER, Respondent.

      Conditional sale of property — effect of a judgment recovered in an action of replevin brought to recover property because of a default in payment of the purchase-price —» right to bring a second action to cut off any lien thereon of the purchaser.

    The plaintiff sold and delivered to Frank Tousey four printing presses under a conditional contract of sale by which the title was to remain in the plaintiff until the purchase-price should be fully paid. Tousey retained the possession of the machines about three years, when, after making payments on account of the purchase-money, in partial execution of the executory contract of sale, amounting to some $6,700, he made a general assignment for the benefit of his creditors to the defendant in this action. After the property went into the possession of the defendant the plaintiff brought an action of replevin for the recovery of the same, in reliance upon those provisions of the contract under the terms of which the title was to remain in it, and obtained a judgment therein under which the property was restored to, and is still retained by it. Thereafter the plaintiff commenced this action for the foreclosure of any lien which the defendant might have upon the property.

      Reid, that the action could not be maintained as the judgment demanded therein ■could only be rendered upon the theory that the defendant had some lien or' interest in the property, which theory would be in direct conflict with the theory upon which the judgment in the first action was rendered.

      Appeal from a judgment entered in Kings county, upon the trial of this action by the court without a jury, dismissing the complaint upon the merits.
    The action was brought to foreclose any interest that Frank Tousey and the defendant Walker as his assignee under a general .assignment, might have in four printing presses of the value of $8,000.
    In December, 1881, the plaintiff agreed to sell Frank Tousey the four planting presses on about eighteen months’ credit, Tousey giving his notes for the purchase-price. It was also agreed in the contract that Tousey was to give security for the payments made by note, and until such security was given the title to the presses was to remain in plaintiff. After Tousey had been in possession of the ■presses nearly three years and had paid on account about $6,700 he made a general assignment to defendant Walker. Walker took possession of the presses, claiming to be the owner thereof, as assignee. The plaintiff, in order to establish its title to the presses, brought an action of replevin, in which judgment was ■entered in its favor. Thereafter, the defendant Walker claiming to have some interest or equity in said presses or some right to the moneys theretofore paid, the plaintiff brought this action to foreclose any and all equities, and procure a sale under the direction of this ■court. The justice below dismissed the complaint upon the ground that the contract was one of conditional sale; that the replevin action was an election on plaintiff’s part to enforce a forfeiture, and that plaintiff’s remedy, if any, was an action at law for damages.

      Charles He Hart Brower, for the appellant.

      George W. Stephens, for the respondent.
   .Dykman,'J.:

The plaintiff sold and delivered to Frank Tousey four printing •presses under a conditional contract of sale by which the title ■remained in the plaintiff until the purchase-price was fully paid. Tousey retained the possession of the machines about three years, and paid on account of the purchase-money in' partial execution of the executory contract of sale over six thousand dollars, when he made a general assignment for the benefit of his creditors to the defendant in this action.

The property went into the possession of the defendant under the assignment to him, and then in the forepart of the year 1885 the plaintiff brought an action of replevin for the recovery of the same in reliance upon that portion of the contract which reserved the title and provided for its continuance in the vendor. That action was prosecuted to a conclusion and resulted in a judgment in favor of the plaintiff under, which the property was restored to the company, where it has since remained. Thereupon the plaintiff commenced this action for the foreclosure of any lien which the defendant may have upon the property. The complaint was dismissed by the trial court and the plaintiff has appealed from the judgment. Under the contract of sale by which the possession of the property was acquired by the vendee, the legal, rights of the parties are well defined in this State. The rights of the vendee were those of a bailee only. He was the lawful custodian of the property and the bailee of the plaintiff until the purchase-price was paid in full, but he acquired no title against the plaintiff, and upon his failure to pay in pursuance of the terms of the contract the title remained in the plaintiff as fully as if neither sale nor delivery thereof had been made or attempted, and the defendant occupies the position of his assignee. (Herring v. Iloppoek, 15 N. Y., 409; Ballard v. Burgett, 40 id., 314.) The plaintiff invoked the aid of this severe principle of law in its first action for the recovery of the possession of this property in question, and the judgment of the court was awarded to him in obedience to its dictates, and the possession and the title were united and the rights of the plaintiff became absolute and undivided.

These considerations seem to be sufficient for the determination of this appeal. The plaintiff has been awarded the possession of the property in question, because its right thereto was absolute and no title passed from the company or vested in Tousey under the contract of sale, and now, after the acquisition of that adjudication, it-seems to be the object of this action to procure a judgment which shall foreclose all interest of the defendant in the property. Should the plaintiff obtain a judgment in this action, pursuant to the prayer of the complaint, it would be in diametrical opposition to the theory upon which the judgment in the first action betwee.n these same parties was procured. Such a judgment could only go upon the theory of a lien upon or interest in the property sufficiently tangible for the basis of an action of foreclosure, while the first judgment was awarded upon the theory of an entire absence of interest in the defendant. Why should this plaintiff be permitted to pursue these contradictory courses? Why should this company again drag this defendant into the thorny field of litigation when its rights have been fully adjudicated and its interests well defined and protected, and when it is in the unchallenged possession of the property, upon which it may repose in security and safety without even a threat of interference ?

The claim seems to be that while the rights of the company are well adjusted and protected at law, yet they may be disturbed by a court of equity; but if the rights of the plaintiff are perfect at law, there can be no interference by a court of equity for their disturbance. Whatever may be said in behalf of the defendant and his assignor, there is no reason for the interposition of a court of equity in favor of the plaintiff. Our examination has proceeded upon principle, but we have discovered no authority requiring any different conclusion. There was no appeal by the defendant from the portion of the judgment dismissing his counter-claim, and therefor no consideration is given to that subject.

The judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concurred.

Part of the judgment appealed from affirmed, with costs.


text:
    ALBERT V. B. BENNETT, Appellant, v. MARGARET ADELIA WARDELL, Respondent, Impleaded with Others.

      Bill of particulars — when not required of one alleging that a devise, under which, defendant claims, is void.

    The complaint in this action, brought for the partition of real estate, alleges that the plaintiff and some of the defendants are tenants in common, but that the defendants Wardell claim an interest in the premises under an apparent devise which is void.'

      Held, that an order, made upon the motion of the defendants, requiring the plaintiff to servé a bill of particulars stating the particular grounds upon which it is claimed that the devise is void should be reversed, as the case was not one in which a bill of particulars should be required.
    Appeal from an order, made at the Kings County Special Term, directing the plaintiff to furnish a bill of particulars stating the particular grounds on which the devise to the defendants Warded, referred to in the complaint, is therein claimed to be void.

      Lansing ds Judge, for the appellant.

      Morris & Pearsall, for the respondent Warded.
   Dykman, J.:

This is an action for the partition of real property, and the complaint alleges the plaintiff and some of the defendants to be tenants in common, but that the defendants Warded claim an interest in the premises under an apparent devise which is void.

The defendants made a motion and obtained an order requiring the plaintiff to serve a bill of particulars stating the particular grounds upon which it is claimed the devise 6tated in the complaint is void. The plaintiff has appealed from the order, and it cannot be sustained. If the plaintiff made an effort to comply with the requirements of the order appealed from, he could only furnish his arguments and legal reasons and conclusions upon which he believes the devise to be void. No bid of particulars of the claim of the plaintiff can be furuished, for he sets up no claim. He merely asserts that the defendants Warded have no claim. The case is, therefore, hot a case in which a bill of particulars should be required.

The order should be reversed, with ten dollars costs and disbursements.

Barnard, P. J., concurred; Pratt, J., not sitting.

Order granting particulars Teversed, with ten dollars costs and disbursements.


text:
    EDMOND FOUGERA, Respondent, v. ISIDOR COHN and Others, Appellants.

      Tenancy from year to year — when implied from entering under a lease imperfectly executed.

      A lease, designed to embody the terms of a tenancy to be 'created between the parties to continue for a tjsrm of two years and five months from March 1, 1881, at a yearly rent of $3,000, was drawn but was not properly executed. At the time specified in the lease the defendants entered into possession of the premises and occupied the same, paying rent, as provided therein, until August, 1885, when they removed from the premises and desired to make a surrender of them to the plaintiff, which he refused to accept.

      Held, that the law would infer an intention to create a tenancy from'year to year, upon the terms specified in the lease, terminable at the expiration of any year,, by giving a proper and sufficient notice.
    That as the defendants had failed to terminate their tenancy upon the expiration of the first year of their holding, the plaintiff was entitled to maintain an action for use and occupation and to recover the rent for the ensuing year.
    Appeal by tlie defendants from a judgment against them entered upon a verdict in favor of tlic plaintiff, directed by the court at the Kings County Circuit.

      Simpson c& Warner, for the appellants.

      Carpenter & Roderick, for the respondent.
   Dykman, J.:

This action is brought to recover compensation for the use and occupation of certain premises in the city of Brooklyn. There was a lease drawn which was designed to embody the terms of the tenancy of the defendants, and which prescribed a term of two years and five months to commence on the 1st day of March, 1884, and terminate on the 1st day of August, 1886, at a yearly rent of $3,000, payable monthly, but it was not properly executed. The defendants entered into possession of the premises at the time specified in the lease, and occupied the same until the 1st day August, 1885, one year and five months, and paid the rent reserved in the lease down to that time. They then removed from the premises and left them vacant, and desired to make a surrender of them to the plaintiff, which he refused to accept, and brought this action for the use and occupation of the premises for five-months, ending on the 31st day of December, 1885.

' Both parties proceed upon the assumption of the invalidity of the lease, and with that concession the defendants seek to limit their liability to actual occupation only, and as they have paid for all of that, they resist the demand made against them in this action'. The existence of the conventional relation of landlord and tenant is essential to the maintenance of an action for use and occupation. (Preston v. Hawley, 101 N. Y., 588.) Yet while this is a fundamental principle of-law, neither a written instrument nor an express agreement are indispensable requisites to the formation of that relation. The requirement of the rule may be satisfied by proof of facts and circumstances sufficient to justify an inference that the parties intended to assume that relation. (Benjamin v. Benjamin, 5 N. Y., 383.)

In this case a tenancy was created by the entry of the defendants and the payment of rent in pursuance of the terms of the lease, although it had no legal inception as a valid instrument between them. Further, in view of all the circumstances surrounding this case, the law infers an intention of these parties to create a tenancy upon the terms specified in the lease, from year to year. The defendants were thus clothed with-the right to terminate the tenancy at the expiration of any year by giving a proper and sufficient notice. (Laughran v. Smith, 75 N. Y., 209; Reeder v. Sayre, 70 id., 180.) But as the defendants failed to terminate their tenancy at the expiration of the first year of their holding, the law for that omission implies against them a further contract to renew the tenancy for another year upon the same terms as the year preceding. (Conway v. Starkweather, 1 Denio, 113; Schuyler v. Smith, 51 N. Y., 309; Laughran v. Smith, 75 id., 210.)

There seems to be no escape from liability for the defendants in this action. Their entry upon the premises was in pursuance of an express agreement, and both parties contemplated a yearly tenancy. The defendants occupied for more than a year, and paid rent in accordance with the trems of the lease that was written, although void. Continuing their occupation after tlie end of the first year of their tenancy, the defendants became bound for the rent for another year, and could not escape tliat liability by an abandonment of the premises.

The judgment should be affirmed with costs.

Barnard, P. J., and Pratt, J., concurred.

Judgment affirmed, with costs.


author: Dykman, J. :

text:
    In the Matter of the Application for Letters of Administration, etc , of HENRY NOLTING, Alleged to be Deceased.

      Presumption, of death — what facts are sufficient to justisfy the issuing of letters of administration upon the estate of an absentee.

    Upon an appeal by the public administrator of Kings county, from a decree of .the surrogate, denying an application made by him in September, 1886, for the issue of letters of administration upon the estate of one Henry Nolting, deceased, it appeared that Nolting was an educated man and had resided in Brooklyn for five or six years; that he was industrious and sober until he lost his wife, when he became dissipated, and finally underwent an attack of delirium tremens the night before he went away; that while suffering greatly from the effects of his debauch and of that attack, he left his home on July 30, 1876, expressing his intention to commit suicide, went towards the dock at the foot of Second street, in Brooklyn, and that since that time he has not been seen or heard from by any of his friends, all trace of him being lost: that a sister in Germany who had, prior to the time of his disappearance, received letters from him with regularity, had received none since that time.

      IIeld, that, from his silent absence during ten years, the law would raise a presumption of his death, which, coupled with the facts and circumstances produced to the surrogate, was sufficient to justify the issuing of the letters ' of administration, 'and that the surrogate erred in refusing so to do.
    Appeal from a decree of the surrogate of Kings county, denying an application for the issue of letters of administration upon the estate of one Henry Nolting.

      Theodore J. Geisler, for the German general consul, representing next of kin, appellant.

      Charles 11. Otis, for the public administrator.
   Dykman, J. :

In September, 1886, the public administrator of Kings county presented a petition to the surrogate of that county, in which he stated facts sufficient to justify its presentation and prayed for the issuance of letters of administration to liim upon the estate of Henry Nolting.

In the view of the surrogate the evidence presented to him was insufficient to prove the death of Nolting, and he refused the letters upon that ground although no objection was made. An'appeal was brought from that determination of the surrogate and we think the proof was sufficient to justify the surrogate in granting the prayer of the petitioner. It was made to appear by the affidavits and proofs before the surrogate that Nolting was an educated man, residing in Brooklyn for five or six years; that he was an industrious and sober man until he lost his wife, when he became dissipated, and finally underwent an attack of delirium tremens the night before he went away, and that while suffering greatly from the effects of his debauch and of that attack, he left his home on the 30th day of July, 1876, éxpressing his intention to commit suicide, went towards the dock at the foot of Second street in Brooklyn, and has never been seen or heard from since by any of his friends and all trace of him lias been lost since that time. He left a bank book in a savings bank showing a deposit of $150 with John Schwartz. Down to the time of his disappearance his sister in Germany received letters from him with regularity, and since that time she lias heard from him never more. So it is shown that the man left his home under the depression which follows delirium, tremens with a declaration of his intention to commit suicide because he was weary of life, and the lapse of ten years lias disclosed no trace of his existence. From his silent absence during ten years the law would raise a presumption of his death for some purposes and that natural inference, coupled with the evidential facts and circumstances produced to the surrogate justify the issuance of the letters of administration in accordance with the prayer of the petition.

The decree of the surrogate should be reversed, and the case remitted to liim with direction to issue the letters.

Barnard, P. J., and Pratt, J., concurred.

Order of surrogate refusing administration reversed, and proceedings remitted to surrogate, with directions to issue letters.


author: Dykman, J.: .

text:
    THEODORE BRINCKHERHOFF and Others, Respondents and Appellants, v. HENRY BOSTWICK and Others, Appellants and Respondents.

      Action to recover damages occasioned, to the stockholders of a bank by the negligence of the /directors — is to be tried as an action at law by a jury.

    In this action, brought by the plaintiff, in behalf of himself and all other stockholders of the National Bank of Fishkill, the allegations of the complaint consisted almost entirely of charges of negligence and fraud on the part of the defendants in the discharge of their duties as directors of the bank. The defendants not being charged with personal misappropriation of the funds of the bank, but with suffering the corporate funds to be wasted and lost by gross negligence and inattention. The demand for judgment was for damages and not for specific relief. •
    Held,'that the action was to be tried as an action at law by a jury, and that an order directing its trial by the court without a jury should be reversed.

      Brinckerhoff v. Bostwick (99 N. T. 185) distiguished, aud Hun v. Gary (83 id., 65) followed.
    Cross-Appeals : One by the plaintiffs from an order denying tbeir motion to refer the cause, and one by the defendants from an order subsequently made directing the trial of the cause by the court without a jury, each of which orders were entered in Kings county.
    This action was commenced January 10, 1880, by Theodore Brinckerhoff, in behalf of himself and all other stockholders of “ The National Bank of Eislikill,” for an accounting by, and ultimately to recover from, the defendants, who were the directors of the bank, the losses sustained by the.stockholders by the destruction of the value of their stock, also in being compelled to pay an assessment against them, as such stockholders, of seventy per cent of the par value of such stock, caused by the misconduct and negligence of the defendants in performing the duties which they undertook when they assumed the obligations of their trust and for which duties they were paid by the bank
    Defendants interposed a demurrer to the complaint, which was sustained by the Special and General Terms (23 Hun, 237), but reversed by the Oourt of Appeals. (88 N. Y., 52.) The defendants then removed the action into the United States Supreme Court by writ of error. That court dismissed the writ and remanded the canse. Subsequently eight other stockholders, applied by petition, upon notice to both parties, to become parties plaintiff upon the record with Mr. Brinckerhoff. Defendants answered the petition and contested the application. An order was granted declaring them parties and directing an amendment of the summons and complaint.
    The cause came to trial March 24, 1884, when the plaintiffs were nonsuited and the complaint dismissed on the ground that the cause of action was barred by the three years’ limitation of the Code, (Sec. 394). From the judgment entered against them on the dismissal plaintiffs appealed to the General Term, where the judgment was affirmed. (34-Hun, 352.) Plaintiffs then ayydaled to the Court of Appeals, where the decision was reversed and a new trial directed, the court holding that the cause of action was governed by the ten years’ limitation of the Code. (Sec. 388 ; 99 N. Y., 185.) On the cause being remitted into this court, the plaintiffs, upon affidavit, moved for an order appointing a referee to hear and determine the action, with leave to the referee to sit in any county in the State, o:i the grounds: First. That the trial would require the examination of a long account, and did not involve the decision of any difficult question of law; and, second, that the action was triable by the court without a jury. The defendants read an affidavit in opposition. The court denied the motion. The plaintiffs’ appeal is from this order. The defendants placed the cause upon the Dutchess Circuit calendar, December, 1885, and moved its trial by a jury. The plaintiffs thereupon moved that the cause be stricken from the circuit calendar, to be-tried as an equity action by the court without a jury. The plaintiffs’ motion was granted, with leave to the defendants to apply for an order framing issues as to the alleged misconduct to be tried by a jury. The defendants’ appeal is from this order.

      O. D. M. Baker, for the plaintiffs.

      Milton A. Fowler, for the defendants.
   Dykman, J.: .

Cross appeals from orders are presented to the court in this action — one by the plaintiffs from an order denying a motion to send the cause to a referee to hear and determine, and one by the defendants from an order striking the cause from the calendar of the Circuit Court, and directing its trial by the court without a jury.

This cause, from its commencement, has presented serious and embarrassing difficulties, and the question now presented equals in importance to the parties any that have gone before it. Uncon trolled by any intimation of the Court of Appeals when the cause was last in that court, we would conclude that the action sounded in tort, and that the defendants had the constitutional right to a trial by jury. The allegations of the complaint consist almost entirely of charges of negligence and fraud of the defendants in the discharge of their duties, and the demand for judgment is for damages, and not for specific relief. The defendants are not charged with personal misappropriation of the funds of the bank, but it is alleged that they suffered the corporate fund to be wasted and lost by gross negligence and inattention to their duties. The action is, therefore, an action at common law for the recovery of damages independently of any statute. Tet the last opinion of the Court of Appeals contains this language: “ This is unquestionably an equitable action. * * * So this action for the purpose of determining the limitation of time applicable to it, must be governed by the same law which would have been applicable if the action had been brought by the bank. The action is against the directors, as trustees, to call them to account for the manner in which they discharged their trust, and is one of which courts of equity always have jurisdiction.”

These words, standing alone, would seem to indicate that the action was one- of equitable cognizance alone to be tried by the court without a jury. But the same opinion contains this language also: It is not claimed that the liability which the plaintiffs seek to enforce in this action against the directors is one created by any statute; but, as we held when the case was here before, it is a common law liability springing out of their relations to the bank, and the manner in which they discharged or omitted to discharge their obligations and duties as directors thereof.”

Finding nothing, therefore, to aid or direct us in the former decisions in the Court of Appeals in this case, we are inclined to rest our decision upon principle and upon the authority of the decision in the Court of Appeals in the case of Hun v. Cary (82 N. Y., 65), where it was held in a case like this that the action was properly tried as an action at law by a jury, because the relief sought was a money judgment.

The order denying the motion for a reference should, therefore, be affirmed, with ten dollars costs and disbursements, and the order striking the cause from the calendar of the Circuit Court should be reversed, with ten dollars costs and disbursements,

Barnard, P. J., and Pratt J., concurred.

Order refusing to refer affirmed, with ten dollars costs and disbursements ; order directing trial at Special Term reversed, with ten dollars costs and disbursements.


author: Dykman, J.:'

text:
    MARY B. VAN CLEAF, Appellant, v. CATHARINE BURNS and Others, Respondents.

      Dower — when a wife, against whom a husband has obtained an absolute divorce in another State for desertion, cannot recover dower — 11?. S., 741, sec. 8.
    Upon the trial of this action, brought by the plaintiff for the recovery of dower in lands in the city of Brooklyn, of which David Van Cleaf, her husband, died seized, it appeared that Van Cleaf had, in hi3 lifetime, brought an action in the State of Illinois, in which State he was then domiciled, and obtained therein an absolute divorce from his wife for the cause and upon the ground of her willful desertion and absence from her husband for more than two years; that the plaintiff appeared in person and filed an answer in that action after notification of the commencement thereof by the service of a summons and complaint upon her in this State where she resided.

      Held, that the “misconduct” of the wife, which was sufficient to justify the judgment of the Illinois court, was sufficient to bring her under the prohibition contained in section 8 of 1 Revised Statutes, 741, directing that “in case of divorce dissolving the marriage contract for the misconduct of the wife she shall not be endowed.”
    Appeal from a judgment in favor of tlie defendant, entered in Kings county upon the trial of this action by'tlie eourt without a iury-

      John H. Kemble, for the appellant.

      Josiah, T. Marran, for the respondents.
   Dykman, J.:'

This is an action for the recovery of dower in lands in the city of Brooklyn of which David Van Cleaf, thé husband of the plaintiff, died seized.

The cause was tried before a justice of this court without a jury who found and decided that David Van Cleaf, the husband of the plaintiff, brought an action against her in his lifetime in the Circuit Court of Cook county in the State of Illinois for a divorce and dissolution of the marriage between them for the cause and ground of the -willful desertion and absence by the plaintiff from her husband, without reasonable cause, for more than two years before the commencement of that action, which was by the laws of the State of Illinois a ground for absolute divorce and a dissolution of the bond of marriage. That such proceedings were had in the action that ,on the 9th day of April, 1881, judgment was granted and perfected therein in favor of the husband against his wife, the plaintiff, dissolving the bond of marriage between them for the causes and grounds of willful desertion and absence, which was therein adjudged to exist. That the court pronouncing the' judgment had jurisdiction of the parties and the subject-matter of the action. That the husband was at the time domiciled in Chicago, in the State of Illinois, and the plaintiff appeared in person in the action and filed an answer in writing to the complaint therein, after notification of the commencement thereof by the service of a summons and complaint upon her in this State, where she resided. These facts having been found the complaint was dismissed upon the merits and the plaintiff appealed from the judgment. There was a written stipulation that the facts found by the trial judge were all true and the appeal presents a question of law only.

It is to be remarked that the voluntary appearance of the jfiaintiff in the action commenced against her in the State of Illinois by her husband for the dissolution of their marital relations, clothed the court in which that action was pending with jurisdiction and power to dissolve the marriage contract between her and her husband. The judgment rendered by the court in that action, therefore, is entitled to full faith and credit in all courts and places. Yet the misconduct of the plaintiff upon which the judgment against her was based in the Illinois court was not her adultery, which is the only misconduct for which an absolute divorce can b* adjudged in the State of New York. It is, however, provided by our statute that in cases of divorce dissolving the marriage contract for the misconduct of the wife she shall not be endowed. Must the misconduct here intended be construed to include only that which entitles the husband to an absolute dissolution of the matrimonial relation in this State. The question is not free from embarrassment but we are inclined to hold that the misconduct of the wife, which was sufficient to justify the judgment of the Illinois court, was sufficient to bring her under the condemnation of our statute. The judgment of that court is conclusive in every form, and we think it will be in harmony with the fundamental principles of the law and the spirit of our statute to hold the judgment conclusive against the wife and refuse her a recovery in this action.

The judgment should be affirmed, with costs.

Barnakd, P. J. and Pratt, J.-, concurred.

Judgment affirmed with costs.