author: Tompkins, S.

text:
    In the Matter of the Judicial Settlement of the Accounts of Ellis Brockway et al., as Executors of John Brockway, Deceased.

      (Surrogate’s Court, Rockland County,

      Filed April, 1895.)

    Executors — Claim.
    A claim by an executor for services in repairing property of the estate will not be allowed, in the absence of any covenant in the lease requiring the lessor to make repairs, where such executor was lessee and made the repairs during his tenancy, without any promise on the part of his co-executor for repayment.
    Judicial settlement of accounts.

      Wm. McCauley, Jr., for the executors; George R. Breston, for the claimant.
   Tompkins, S.

The only question remaining undetermined on this accounting is as to the validity of the claim of William A. Ferris, one of the executors, against the estate, amounting to the sum of $111.50. This claim is contested by his co-executor and some of the legatees. It is therefore necessary that the claim be established by a fair preponderance of evidence. The claim is for services rendered by the executor William A. Ferris personally,, in making repairs to a barn upon a farm belonging to the estate,, in the town of Clarkstown. It is doubtful whether, in any event, ’ an executor is entitled, fur purely personal services, to anything in addition to the commissions allowed by statute, except the-services are of an extraordinary character, but a determination of that question does not seem to be necessary in this case. Here the executor and claimant was a tenant under a lease of the premises upon which the repairs were made during his occupancy of. the premises as such tenant. The lease under which he occupied the premises contained no covenant requiring any repairs to be made by the landlord, but, on the contrary, required the lessee, under whom Mr. Ferris, the claimant, occupied the premises, “ to-put the fences and barn in good repair." This was the same barn, upon which the work was done for which the claim is here made. Clearly, then, it was the duty of the lessee, Miss Broclcway, and! of any person occupying the premises with her or under her, to-put the barn in good repair. If that had been done, it .is not likely that any substantial repairs would have become necessary thereafter during the term of the lease. In any event, in the' absence of an agreement on the part of the estate to repair, there was no-obligation resting upon its representatives to make these repairs, or cause them to be made at the expense of the estate, and it must, be assumed that they were made by Mr. Ferris as a tenant. The obligation of a landlord to repair demised premises rests solely upon express contract, and a covenant to repair will not be implied. Witty v. Matthews, 52 N. Y. 512. The claim was at-_ tempted to be made that the making of these repairs was understood and agreed to by the co-executor, and intended to be charged as an expense of the administration of the estate, but this contention is not sustained by the proof. The claimaint testified that his co-executor urged him to make the repairs, but does not remember whether anything was said as to who was to pay for them. This is all the testimony in support of the claim showing any knowledge or authority of the co-executor in respect thereto. Ellis Brockway, the co-executor, testified that he had no knowledge of the work being performed by the claimant until it was- . done, and that he never had any conversation in reference to the estate paying therefor. The conclusion, therefore, at which I arrive, is that the work was not done or authorized to be done by the executors or for the estate, but was performed by Mr. Ferris as a tenant of the premises in the making of ordinary repairs such as he was under obligation by law to make, and such as the estate as landlord was under no obligation to make. The claim is disallowed. Decreed ^accordingly.


source: Caselaw Access Project

author: Silkman, S.

license: Public Domain

text:
    In the Matter of an Application for the Issuance of a Citation upon Probate of Will of Robert F. Washburn, Deceased.

      (Surrogate’s Court, Westchester County,

      Filed April, 1895.)

    Surrogate’s Court — Citation—Service.
    A citation in surrogate’s court, upon the probate of a will, may he served on a non-resident within the state in the same manner as on a resident.
    Application for the issuance of a citation in a proceeding for the probate of the will of Robert F. Washburn, Deceased.

      Samuel Watson, for petitioner.
   Silkman, S.

Application is made for the issuance of a citation to Henrietta Lyon and Joshua B. 'Washburn, who are non-residents of the state, returnable upon a day certain within the period necessary for the service of the same without the state. Affidavit is made by the petitioner to the fact that service can be made within the state. It would seem unnecessary for me to indicate my views in writing, were it not for the practice which has previously prevailed in this court; that is, not to make citations returnable in less time than it would be necessary to serve by publication, where it appears that some of the parties are non-residents, and then only accompanied by an order of publication. See opinion in re Porter, 1 Misc. Rep. 489 ; 54 St. Rep. 302. It is provided by section 2520 of the Code of Civil Procedure how citations shall be served within the state. After declaring what the-manner of service shall be, the sections reads : “A citation must be so served within the county of the surrogate, or an adjoining county, at least eight days before the return day thereof; if in any other county, at least fifteen days before the return day.” Nowhere in the section do we find that such service shall be made only upon residents of the state, and it would seem that, if there is no other section qualifying the one cited, the jurisdiction of the surrogate is complete over any person or corporation sought to be brought into court by such service, irrespective of the question of residence, when the service is made within the state either eight or fifteen days prior to the return day, as the case may be. I find none. The only other sections which seem to affect the question are sections 2522, 2524 and 2525. The former provides that 11 the surrogate from whose court a citation is issued may make an order directing the service thereof without the state or by publication ui either of the following cases ; ” and then the cases are enumerated, one of which is, “ where it is to be served upon a foreign corporation, or upon a person who is not a resident of the state.” Section 2524 provides that the party applying for the order must produce proof," by affidavit or otherwise, to the satisfaction of the surrogate, that the case is one specified in the previous sections, and then provides what the order shall contain. Section 2525 fixes the time for service without the state, and for mailing pursuant to an order. The only substantial difference between "the provisions for the service of -a summons and those for the service of a citation by publication or without the state, is that to obtain an order for the publication of a summons it must be shown that the summons cannot, with due diligence, be served within the state, .which in the case, of the citation is not required, it being sufficient to show the fact of non-residence. The policy of the law is constantly tending towards uniformity and harmony in its forms and practice. It would be absurd to claim that a summons could not be served within the state upon a non-resident, even after an order of publication had been made and, unless there is something in the statute showing a contrary intent, the proposition must be equally untenable as applied to a citation. It will be seen that the surrogate is not directed to make an order of publication ; the word “ may” cannot be construed as used otherwise than as a permission, and then again it appears that the order must be applied for, which emphasizes the fact that the issuance of the citation and an order of publication for service without the state do not necessarily go together. The citation must be issued upon the presentation of a proper petition; the order may be granted upon an application. It is important also to note that the law does not require the petition upon which the surrogate must act to state the residence of the persons to be cited ; the place of residence may not be ascertained uutil after the return day has been fixed. I see no escape from the conclusion that the return day of the citation is wholly unimportant as respects the jurisdiction of the surrogate, provided it is not less than eight days nor more - than four months after its date, and the fixing of such return day is a matter to be arranged according to the convenience of the surrogate and the petitioner. The practice of this court will hereafter be in accordance with these views.

Ordered accordingly.


text:
    Ambrose J. Agate, App’lt, v. Caroline House, Resp’t.
    (Ct. Ap.
    April 30, 1895)

      Geo. W. Blunt, for app’lt; Henry W. Taft, for resp’t.
   No opinion. Judgment affirmed, Aff’g, 63 St. Rep. 356.


text:
    Charles T. Barney, App’lt, v. Mayor, Etc., of the City of New York, Resp’t.
    (Ct. Ap.
    April 23, 1895.)

      James A. Deering, for app’lt; David J. Dean, for resp’t.
   No opinion. Order affirmed. AfE’g, 60 St. Rep. 876.


text:
    Ambrose Best, Resp’t, v. Levi Zeh et al., App’lts.
    (Ct. Ap.
    April 23, 1895.)

      A. V. S. Cochrane, for app’lts; Frank B. Chace, for resp’t.
   No opinion. Judgment affirmed, with leave to appellents to withdraw demurrers and answer over within twenty days on payment of the costs of the appeals and of the demurrer, on opinion below, Aff’g, 63 St. Rep. 549.


text:
    David M. Blanstein, Resp’t, v. Eugene W. Guindon et al., App’lts.
    (Ct. Ap.
    April 30, 1895 )

      Arthur B. Williams, for app’lts; G. Washbourne Smith, for resp’t.
   No opinion. Judgment affirmed with costs. All concur, Aff’g, 64 St. Rep. 194.


text:
    Mary Davies, App’lt, v. Pelham Hod Elevating Co., Resp’t.
    (Ct. Ap.
    April 23, 1895.)

      I. Newton Williams, for app’lt; Geo. S Coleman, for resp’t.
   No opinion. Judgment affirmed with costs. All concur, AfE’g, 63 St. Rep. 996.


text:
    Annie Dueke App’lt, v. Tenth & Twenty-third Street Ferry Co., Resp’t.
    (Ct. Ap.
    April 9, 1895.)

      A. H. Dailey, for app’lt; Wm. A. Jenner, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g, 61 St. 514.


text:
    Nelson Dunty, Resp’t, v. William C. Horton et al., App’lts.
    (Ct. Ap.
    April 30, 1895.)

      E. C. Aiken, for app’lt; Frank C. Cushing, for resp’t.
   No opinion. Judgment affirmed on opinion below with costs. All concur, except Haight, J., not sitting. Aff’g, 64 St. Rep. 413.


text:
    Lillie J. Earle, Resp’t, v. George H. Robinson et al., App’lts.
    (Ct. Ap.
    April 9, 1895.)

      Geo. M. Pinney, Jr., for app’lts; A. J. Dittenhoefer, for resp’ts.
   No opinion. Appeal dismissed, with costs. All concur.


text:
    Matter of Charles Edwards’ Estate.
    (Ct. Ap.
    May 3, 1895.)

      John H. Corwin, for app’lt; Emmet R. Olcott, for resp’t.
   No opinion. Order affirmed, with costs. All concur. AfE’g, 66 St. Rep. 231.


text:
    William H. Finley, App’lt, v. Hudson Electric Railway Co., Resp’t.
    (Ct. Ap.
    April 30, 1895.)

      J. Rider Cady, for app’lt; L. F. Longley, for resp’t.
   No opinion. Judgment affirmed below, with costs. All concur. Aff’g, 46 St. Rep. 202-


text:
    Louis M. Gerry, Resp’t, v. William H. Liddle, App’lt.
    (Ct. Ap.
    April 9, 1865.)

      Barna Johnson, for app’lt; G. W. Youmans for resp’t.
   No opinion. Appeal dismissed, on the ground the order is not final, with costs. All concur.


text:
    Edwin Gomez et al., Appl’ts, v. Horatio Gomez et al., Resp’ts.
    (Ct. Ap.
    April 16, 1895.)
   No opinion. Motion to advance granted, without costs, and cause reserved for argunent upon the first day of next session of this court.


text:
    Matter of Charles T. Harbeck. et al.

    (Ct. Ap.
    April 9, 1895.)

      J. Treadwell, for app’lt; Samuel S. Thomas, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g, 62 St. Rep. 378.


text:
    Henry Harbeck, App’lt, v. Sarah Katharine Pupin et al., Resp’ts.
    (Ct. Ap.
    April 3, 1895.)
   No opinion. Motion for reargument denied, with costs.


text:
    Alice Harmon, Resp’t, v. New York Cent. & H. R. R. R. Co., App’lt.
    (Ct. Ap.
    April 9, 1895.)

      J.W. Dunwell, for app’lt; W. E. Hughitt, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur, except Finch and Haight, JJ., not sitting. Aff’g, 62 St. Rep. 871.


text:
    Jacob Haupmann, et al, Resp’ts, v. First Nat. Bank of Brooklyn, App’lt.
    (Ct. Ap.
    May 3, 1895.

      Joseph A. Burr, for app’lt; Geo. II. Pettit, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g, 63 St. Rep. 874.


text:
    Edward H. Hawke, App’lt, v. Madison Hawke et al., Resp’ts.
    (Ct. Ap.
    April 30, 1895.)

      John Foley, J. W. Houghton, and J. S. L'Amoreaux, for app’lt; John L. Henning and Charles B. Patterson, for resp’ts.
   No opinion. Judgment affirmed with costs. All concur. Aff’g, 64 St. Rep. 789.


text:
    Matter of Frederick D. Hodgman’s Estate.
    (Ct. Ap.
    April 9, 1895.)

      Edgar Hull, for app’lt; Charles S. Foote, for resp’t.
   No opinion. Appeal dimissed, with costs. All concur.


text:
    Angle K. Jorgensen, App’lt, v. Flavius S. Squires, et al., Resp’ts.
    (Ct. Ap.
    April 16, 1895.)
   No opinion. Motion for reargument denied, without costs.


text:
    Joseph J. Kettel, App’lt, v. Henry Stueve, Resp’t.
    (Ct. Ap.
    May 3, 1995.)

      John A. Straley, for app’lt; Fredk. H. Hinricks, for resp’t.
   No opinion. Order affirmed with costs, All concur. Aff’g, 64 St. Rep. 642.


text:
    Matter of Land’s Will.
    (Ct. Ap.
    April 16, 1895.)
   No opinion. Motion to amend return grouted, on payment of $60 costs within twenty days.


text:
    Annie E. Lick, Resp’t, v. Town of Moravia, App’lt.
    (Ct. Ap.
    May 3, 1895.)

      J. A. Wright, for app’lt; H. Greenfield, for resp’t.
   No opinion. Judgment and order affirmed, with costs and ten per cent, damages, under section 3251 of the Code. All concur, except Haight, J., not sitting. Aff’g, 53 St. Rep. 936.


text:
    James L. Lowery, App’lt, v. Edward J. Woosey, Resp’t.
    (Ct. Ap.
    May 3, 1895.

      Alex Thain, for app’lt; W. W. Culver, for resp’t.
   No opinion. Judgment affirmed, on opinion helow with costs. All concur. Aff’g, 64 St. Rep. 860.


text:
    Mark Lythgoe, Resp’t, v. Charles Lythgoe et al., App’lts.
    (C. Ap.
    April 9, 1895.)

      Edward S. Peek, for app’lt: A. J. Skinner and L. A. Gould, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g, 58 St. Rep. 172.


text:
    Alexander McAndrews, Resp’t, v. Lake Shore & M. S. Ry. Co., App’lt.
    (C. Ap.
    May 3, 1895.)

      Chas. A. Pooley, for app’lt; Geo. B. Towne, for resp’t.
   No opinon. Appeal dismissed, with costs, on Farmers’ Loan & Trust Co., v. Bankers’ & Merchants’ Tel. Co., 109 N. Y. 343. All concur, except Haight J. not sitting.


text:
    Richard P. Mc Bride, Resp’t, v. Frank O. Chamber, et al., App’lts.
    (Ct. Ap.
    April 9, 1895.)

      John Gillette, for app’lt; Henry M. Field, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur, except Haight J., not sitting. Aff’g, 56 St. Rep. 893.


text:
    McClure, Resp’t, v. Levy, App’lt.
    (Ct. Ap.
    April 16, 1895.)
   No opinion. Motion to open default. Ordered, that the clerk of the supreme court of the first judicial department return the remittiture herein, and upon its return this motion is granted, and the cause restored to calendar, on payment within ten days of $50 costs.


text:
    Catharine R. Martineau, Resp’t, v. Rochester Ry. Co., App’lt.
    (Ct. Ap.
    May 3, 1895.)

      Chas. J. Bissell, for app’lt; Thos. Raines, for resp’t.
   No opinion. Judgment affirmed, on opinion below with costs. All concur except Haight, J., not sitting. Aff’g, 62 St. Rep. 733.


text:
    John Miller, Resp’t, v. New York Cent. & H. R. R. R. Co., App’lt.
    (Ct. Ap.
    April 30, 1895.)

      C. D. Prescott, for app’lt; Myron G. Bronner, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur, except Finch, J., not sitting, and Cray, J., not Toting. Aff'g, 63 St. Rep. 766.


text:
    Montignani v. Blade et al.

    (Ct Ap.
    April 23, 1895.)
   No opinion. Motion to amend remittiture denied, with costs.


text:
    Noyes F. Palmer, Resp’t, v. City of Brooklyn App’lt.
    (Ct. Ap.
    May 3, 1895.)

      H. O. Wood, for app’lt; Joh P. Adams, for resp’t.
   No opinion. Order affirmed, with costs. All concur. Aff’g, 66 St. Rep. 19.


text:
    Matter of Frances M. Peaslee.
    (Ct. Ap.
    May 3, 1895.)

      Robert Hunter McGrath, for app’lt; C. N. Bovee, Jr., for resp’t.
   No opinion. Order affirmed, with costs, on opinion below. All concur. Aff’g, 63 St. Rep. 331.


text:
    The People, Resp’t, v. Edward Hodnet, App’lt.
    (Ct. Ap.
    May 3, 1895.)

      W. E. Kisselburgh, Jr., for app’lt; Chas. H. Brown, for People.
   No opinion. Judgment affirmed on opinion below. All concur, except Haight, J., not sitting. Aff’g, 63 St. Rep. 699.


text:
    The People ex rel. Bird, App’lt, v. Barker et al., Commissioners, Resp’ts.
    (Ct. Ap.
    April 30, 1895.)

      Ten Eyck & Remington, for motion; D. J. Dean, opposed.
   No opinion. Motion for reargument denied; $10 costs.


text:
    The People ex rel. Dinsmore v. Gilroy, Mayor, etc. (two cases).
    (Ct. Ap
    April 16, 1895.)
   No opinion. Motion for reargument denied, with costs.


text:
    The People ex rel. New York & E. Tel. Co., Resp’t, v. George W. Plymouth et al., Commissioners, App’lts.
    (Ct. Ap.
    April 9, 1895.)

      Wm. B. Borhblower, for app’lts; E. H. Benn, for resp’t.
   No opinion. Order affirmed, with costs. All concur. Aff’g, 65 St. Rep. 880.


text:
    The People ex rel. Onondaga County Sav. Bank, App’lt, v. Butler, Resp’t.
    (Ct. Ap.
    April 16, 1895.)
   No opinion. Motion to advance granted.


text:
    Nicholas Powers, Resp’t, v. Prudential Ins. Co. of America, App’lt.
    (Ct. Ap.
    April 16, 1895.)

      Thomas F. Magner, for app’lt; Chas. J. Patterson, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur, except Gray, J., not voting. Aff’g, 64 St. Rep. 263.


text:
    Prentiss, App’lt, v. Bowden, Resp’t.
    (Ct. Ap.
    April 23, 1895.)
   No opinion. Motion to amend remittitur denied, without costs.


text:
    Frances B. Scott, App’lt, v. Frances Calladine, Resp't.
    (Ct. Ap.
    April 9, 1895.)

      August Becker, for app’lt; Patrick F. King, for resp’t.
   No opinion. Judgment affirmed,, on opinion below, with costs. All concur, except Haight, J., not sitting. Aff’g, 61 St. Rep. 172.


text:
    Cisco, Resp’t, v. Lehigh & H. R. Ry. Co., App’lt.
    (Ct. Ap.
    April 16, 1895.)

      John W. Lyon, for app’lt; Isaac H. Maynard and John J. Beattie, for resp’t.
   No opinion. Motion to amend remittitur granted.


text:
    Skelton, Resp’t, v. Larkin, App’lt.
    (Ct. Ap.
    April 30, 1895.)

      A. T. Clearwater, for app’lt; David M. De Witt, for resp’t.
   No opinion. Judgment affirmed, on opinion below, with costs. All concur. Aff’g, 63 St. Rep. 553.


text:
    Catharine T. Smith et al., Pl’ffs, v. Mayor, etc., of City of New York, Def’ts.
    (Ct. Ap.
    April 9, 1895.)

      John F. Kavanaugh, for pl’ffs; Geo. L. Sterling, for def’ts.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g, 64 St. Rep. 487.


text:
    Soldiers’ Orphans’ Home of St. Louis, App’lt, v. Russell Sage et al., Resp’ts.
    (Ct. Ap.
    May 3, 1895.)

      Joseph H, Choate, for app’lt; Winslow S. Pierce, for resp’ts.
   No opinion. Order affirmed, with costs, on opinion below. All concur. Aff’g, 65 St. Rep. 882.


text:
    Laura Steven, Resp’t, v. John B. Lord, App’lt.
    (Ct. Ap.
    April 23, 1895.)
   No opinion. Motion to advance granted.


text:
    Ann Amelia Sykes et al., Resp’ts, v. Silver Lake Ice Co., App’lt.
    (Ct. Ap.
    April 23, 1895.)

      Forsyth Bros., for app’lt; Waller S. Hubbell, for resp’ts.
   No opinion. Judgment affirmed, with costs. All concur, except Haight, J., not sitting. Aff’g, 62 St. Rep. 872.


text:
    John S. Tholen, Resp’t, v. Brooklyn City R. Co., App’lt.
    (Ct. Ap.
    April 9, 1895.)

      Albert C. Tenant, for applt; Thos. E. Pearsall, for resp’t.
   No opinion. Jungment affirmed, with costs. All concur, except Gray, J., not sitting. Aff'g, 63 St. Rep. 269.


text:
    Anthony Timothy, Resp’t, v. Brooklyn City & N. R. Co., App’lt.
    (Ct. Ap.
    April 9, 1895.)

      Albert C. Tenant, for app’lt; Chas. J. Patterson, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g, 63 St. Rep. 311.


text:
    Maxmillian Toch, App’lt, v. Jacob B. Toch et al, Resp’ts.
    (Ct. Ap.
    April 30, 1895.)

      M. L. Townsend, for app'lt. Edward C. Stone and Treadwell Cleveland, for resp’ts.
   Judgment affirmed, without costs to either party. All concur, except Gray, J., not voting. Aff'g, 63 St. Rep. 197.


text:
    Maxmillian Toch Resp’t, v. Jacob B. Toch et al., App’lts.
    (Ct. Ap.
    April 30, 1895.)

      Edward C. Stone and Treadwell Cleveland, for app’lt; Louis Wertheimer and M. L. Townsend, for resp’t.
   inc opinion. Judgment affirmed, without costs to either party. All concur, except Gray, J., not voting. Aff’g, 63 St. Rep. 197.


text:
    Jane E. Wheeler, Resp’t, v. Watertown St. Ry. Co., App’lt.
    (Ct. Ap.
    April 9, 1895.)

      D. G. Griffin, for app’lt; Chas. W. Thompson, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g, 59 St. Rep. 888.


text:
    Ketuvah Willdigg, Resp’t, v. City of Brooklyn, App’lt.
    (Ct. Ap.
    April 9, 1895.)

      E. B. Barnum, for app’lt; Arthur H. Smith, for resp’t.
   No opinion. Judgment affirmed on motion below, with costs. All concur, except Peckham, J., not voting. Aff’g, 61 St. Rep. 815.


text:
    Elizabeth H. Wilson Resp’t, v. Madison G. Hawke et al., App’lts.
    (Ct. Ap.
    April 30, 1895.)

      John Foley, J. W. Houghton and J. S. L’Amoreaux, for app’lt; John L. Henning and Charles F. Patterson, for resp't.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g, 64 St. Rep. 789.


text:
    In the Matter of the Application by Emily A. O’Rourke, as Administratrix of Martin O’Rourke, Deceased, for Leave to Sell Decedent’s Real Estate for the Payment of Debts.

      (Surrogate’s Court, Westchester County,

      Filed April, 1895 )

    1. Executors — Statute of frauds. An administrator has no power to waive, as against the heirs at law or devisees, any legal defense under the statute of frauds.
    2. Statute of frauds — Cemetery lot. Under chap. 501 of 1881, a contract to purchase a cemetery lot must be in writing under the statute of frauds.
    3. Witness — Section 829. The provisions of section 829 of the Code do not apply to the officers of a religious or charitable corporation who serve without pay.
    Petition for leave to sell decedent’s real estate for the payment of debts.

      Rob't J. Fox and John M. Perry, for petitioner; F V. Van Kleck, Jr., special guardian.
   Silkman, S.

— The objection of the special guardian of the infant heirs at law to the allowance of a claim of St. John’s Boman •Catholic Church of $450, alleged to be one of the debts due by decedent, to pay which this proceeding is taken, presents a question which has required much consideration. It is sought to sustain the claim solely upon the ground that it is a debt of decedent. Martin O’Bourke died May 21, 1893, intestate, and without sufficient personal property to pay his debts. On May 18th, prior to his death, he went to Calvary Cemetery, owned by and connected with the Church of St. John the Evangelist, with Father Tole, its treasurer, and, after looking at several plots, concluded to take one at the price of $450, and then and there paid $10 on account, and such treasurer thereupon opened an account in his book of accounts, charging said decedent with $450, and crediting him with the $10 payment. Mo written agreement of any kind was entered into, and no further payments were made. The body of the decedent was buried in the plot .by his widow, although he owned a plot in another cemetery at the time of his death. Father Tole testified that when plots were paid for in full a receipt is given in the following form:

No. - Mount Calvary Cemetery.
“ Office: ' _ The Rectory,
“ White Plains, N. Y.
“ Received from--dollars, for the privilege of burial in Mount Calvary Cemetery, in-graves, in plot-, section -, in the mode used andi permitted by the trustees of St. John’s-Church, White Plains, N. Y., subject to the rules and regulations that have been or may be adopted from time to time by said trustees, and to the laws, usages, and discipline of the Roman Catholic Church in the Archdiocese of New York relating to sepulture, as well as the rights and ceremonies to be observed at funerals, and subject also to the consent and approval of said trustees for erecting tombstones, monuments, and other constructions thereon; it being understood that no deed or conveyance of any title or interest in the said land is to be executed, but that the whole title thereto, and the legal possession thereof, remain in the said trustees, and also that this privilege is not to be transferable or assignable, by act of law or otherwise, without the consent in writing of the said trustees.
“ Dated, White Plains,-, 189-.
“ Treasurer of Mount Calvary Cemetery.
<<ij>_»

But it does not appear that this fact was known to decedent. Father Tole had no pecuniary interest in the transaction, and no personal benefit accrued to him by reason of the sale of the burial plots, either directly or indirectly. The administratrix admits the claim, and counsel states to the court that she desires to have the same allowed. Some question has been made as to the power of the surrogate to determine the claim. The Code, however, is clear and explicit (section 2755), but whether the power conferred is intended to give more than the right to determine what are presumptive debts only it is not necessary to determine. The decree-of the surrogate is certainly binding upon the heir or devisee. The administratrix urges that, because the claim is admitted, the surrogate’s power to determine whether or not it is a prima fade debt is gone, and also urges that the same rule applies as is applied in cases where a debt of deceased is paid in good faith by the executor or administrator, and the burden is put upon the contestant to-show that the debt did not exist. This rule cannot be extended to the present case, and only applies where there has been a payment in good faith. The fact of payment and the fact of good faith are essential to the shifting of the burden of proof from the executor or administrator to the contestant. In this case there has-been no payment by the administratrix, and legal good faith would not be consistent with a knowledge that there was no written agreement in existence for the payment of the money. An executor or administrator has no power to waive, as against the heirs at law or devisees, any legal' defense, either under the statute of limitations or the statute of frauds; and, if they do so, it is at their peril. A payment of a claim which is either outlawed, or barred by the statute of frauds, within the knowledge of the administrator, cannot be said to have been made in good faith. The paroi agreement here claimed rests upon the testimony of the witness Father Tole, and his testimony, the special guardian urges, is incompetent, under section 829 of the Code of Civil Procedure; but in this the special guardian is in error. The interest which excludes a witness under the section cited is a pecuniary one. Such is not Father Tole’s. He does not personally benefit by the sale of the burial plot, and, while he is an officer, he is only such ex officio, and the interest . ¿ has is entirely one of sentiment, the interest which every lot owner would have in the success of the cemetery. ¡Nothing of value comes to him by reason of the transaction as to which he testifies, and it is therefore not the interest contemplated by the Code. The section was not intended to exclude the officers or trustees or religious or charitable institutions, serving without pay or reward.

The serious question is as to whether the claim for the balance of the purchase price of the burial plot is not within the statute of frauds, and therefore not enforceable. To determine this question it is necessary to ascertain from the surrounding circumstances what must have been in the mind of -the decedent at the time of the alleged agreement, and upon what the minds of the parties met. In other words, what was the agreement, the evidence to which is so meager. All we have is the statement of decedent that he would take the lot, and that he paid $10 on account of the purchase. Did the decedent have in mind that he was to have a grant giving him a fee or an easement subject to the proprietary rights of the corporation, or a lease for a term, or a receipt entitling him to a mere license to bury? IE the agreement was for a grant or a lease, it would be clearly within the statute of frauds, and no claim can be predicated upon it. On the contrary, if it was an agreement for a mere license, it may be by paroi, and therefore not within the statute. It is claimed that under the rules and regulations of the church there was no authority to give the purchaser of a plot other than the receipt above quoted, which would confer merely a license to bury; and it is also claimed that the purchasers were presumed to know the rules and regulations and to have bought subject to them. There is no doubt as to the latter proposition, with certain limitations. The rules and regulations, which a purchaser is presumed to know, are such as are contemplated by the law. By chapter 501 of the Laws of 1881 it is provided that: •

11 Any incorporated religious society within the state of ¡¡Slew York who now has or may hereafter hold or acquire lands for the purpose of a burial place or cemetery may sell lots or plats in such burial place or cemetery upon such terms as may be agreed, subject to such conditions and restrictions as may be imposed upon the use of such lots or plats by the rules and regulations now adopted, by sucli religious corporation. The conveyance shall be executed under the common seal of the corporation, and shall be signed bjr a majority of the trustees of the corporation making such sale.”

■ It will be seen that the rules and regulations provided for apply only to the use of thfe plats, and not to the title or interest in the land which the purchaser takes. ' The act also provides for a deed to be given the purchaser, and directs the manner of execution, and by whom it shall be executed. If Martin O’Rourke is to be presumed to have known anything, it must be the statute quoted, which provides for a grant, and a grant only. There is not a word or suggestion about a burial license. The act also provides that remains shall not be removed where compensation is paid, except upon a vote of three-fourths of the congregation, and the expense of removal to be paid by the church, which provision is wholly inconsistent with the idea of a license, which is personal and revocable. But without the aid of the statute it may be said that the very nature of the right of sepulture implies a right in land lasting in its character. The final resting place of the dead should be undisturbed and inviolate. For no interest in land, other than an absolute fee, can there be claimed a greater right of permanency. It is sacred in its nature. - No one would be presumed to have selected as a place of burial one in which his or her remains could lie only during the pleasure and subject to the whim of a corporation, religious or otherwise. The right of sepulture in its very nature implies an easement. It is an incorporeal hereditament. It is true that burials in cemetery plots may be prohibited, and bodies disinterred and reinterred elsewhere, even though there be a grant of the fee to the burial plot; but this can be done only by legislative authority, and where for sanitary or other sufficient reasons, it becomes necessary; the health of the living being of more consequence than the repose of the dead. The characteristics of a license are repugnant to the idea of a burial place. A license is personal and revocable. Washb. Real Prop. chap. 12, § 2. In this it differs from an easement, which can only be founded upon a grant or by prescription. If the alleged agreement was for a license, the right of burial ceased with the death of Martin O’Rourke; and if he had continued to live it could have been terminated at any time at the election of the corporation. If the agreement was for the permanent occupation of the burial plot, by whatever name such occupation might be called, the very object sought to be,attained by the statute of frauds would be defeated. Savage, C. J., in Mumford v. Whitney, 15 Wend. 381, says: “To decide that a right to a permanent occupation of the plaintiff’s land may be acquired by paroi, and by calling the agreement a license, would be in effect a repeal of the statute of frauds.” The reason why a license may be created by paroi is because it is personal, and revocable. The cases of People ex rel. Coppers v. Trustees of St. Patrick's Cathedral, 21 Hun, 184, and McGuire v. St. Patrick's Cathedral, 54 Hun, 207; 27 St. Rep. 192, do not affect the question here, as in those cases the agreement was executed, and not executory. Neither was it necessary to the disposition of those eases that the interest of the plot holder should be held to be only that of a license. In the Copper's Case, however, the court distinctly held that under the receipt there given no action could be maintained, as the agreement was void under the statute of frauds. See, also, case of Conger v. Treadway, 50 Hun, 451; 20 St. Rep. 774. _ The conclusion is irresistible that the agreement was not for a license, but for an interest in land. The claim that, because the remains of Martin O’Rouke were interred in the plot in question by the administratrix, there has been a part performance, is not tenable. Part performance must be with the knowledge and consent of the contracting party, his heirs or assigns. The act of the administrator cannot bind the heirs.

The claim of the Church of St. John the Evangelist is disallowed.

Ordered accordingly.


author: Landon, J.

text:
    The People ex rel. Isaac Jones, Pl’ff, v. John H. Baker, Def’t.

      (Supreme Court, Albany Circuit,

      Filed May 9, 1895.)

    1. Civil service law — Operation. Chapter 577 of 1892 operates in every city in this state.
    2. Same — Removal. A street superintendent, appointed by the street commissioner under the charter of the city of Albany, holds a “ confidential relation ” to such commissioner, and does not come within the provisions of said act.
    Proceeding to determine relator’s right to the office of superintendent of streets.

      John A. Delehanty, for pl’ff; William P. Rudd, for def’t.
   Landon, J.

— The charter of the city of Albany (Laws 1883, chap 298, title 12, § 1) provides that:

“ The street commissioner * * * shall appoint two superintendents of streets, * * * who shall hold their places during the pleasure of the commissioner, and shall perform such services as the commissioner may direct.”

In June, 1886, the relator, Jones, was appointed one of the superintendents of streets of the city of Albany, and, by virtue of such appointment and subsequent appointments, continued to hold such position until September 27, Í894, when the street commisioner, assuming to act in pursuance of the provision of the charter above quoted, undertook to remove him, and if such provision of the charter was not superseded or repealed by chapter 577, Laws 1892, hereafter quoted, did remove him, and did appoint the defendant, Baker, in his place. Since September 27,1894, the defendant has exercised the duties of said office, and the relator has not been permitted to exercise them. Prior to his appointment as superintendent of streets, the relator had been a member of the volunteer fire department of the city of Albany, and had served therein the time required by law, and had been honorably discharged.

Chapter 577 of the Laws of 1892, provides that:

“No person holding a position by appointment in any city or county of this state, or who may hereafter be appointed, receiving a salary from such city or county (unless he has been appointed for a definite term), who * * * shall have served the time requifed by law in the volunteer fire department in any city, town or village in this state, * * * shall be removed from any such position except for cause shown, after a hearing had; but this provision shall not be construed to apply to the position of private secretary, or chief clerk, or deputy of any official or department, or to any other person holding a confidential relation to the appointing officer.”

If this act governs the case, then the relator, Jones, was not lawfully displaced, and is entitled to the office, and the defendant is not entitled to it.

I think it was intended by chapter 577, Laws 1892, to prevent the removal“ except for cause, after a hearing had,” of the particular person, favorably designated in the act, holding a position by appointment in the city of Albany for no definite term, and receiving a salary from the city. It is true that the general rule is that the provisions of a late general law do not repeal the provisions of an earlier special act, enacted for a particular place and purpose, unless the intent to repeal is manifest in the general. act. But it is manifest, I think, from the act of 1892 itself, that it was intended to operate in every city of the state. If not in Albany, then why in any other city? Albany is as plainly designated as any other. The act was intended to apply to every officer holding by appointment, and coming within the unexcepted specified-conditions of the act.

The important question is whether the superintendent of the streets of Albany falls within any of the conditions which except the officer from the special favors of the act itself. The relator was appointed for no definite term; for, if the appointment was to hold during the pleasure of the commissioner, the duration of that pleasure has no time limit of continuance. If the provision of the charter “during the-pleasure of the commissioner" was superseded by the act of 1892, then his appointment was during good behavior, and that is equally without a definite time limit.

The act of 1892 contains this exception :

“But this provision shall not be construed to apply, to the position of private secretary, or chief clerk, or deputy of any official or department, or to any other person holding a confidential relation to the appointing officer.”

Plainly, the private secretary, chief clerk, and deputy of an official were regarded by the framers of the act as balding a confidential relation to the official appointing them ; and since there might be other officers holding similar confidential relations, but not readily or fully mentionable, the final general clause was intended to embrace them all.

It is important to understand what relations the superintendent of streets holds to the commissioner of streets. The provision of the charter already quoted defines them thus : He “shall perform such services as the commissioner may direct.” The commissioner of streets has very large powers in regard to placing and keeping the streets, parks, outdoor public places, and public sewers in the city in good condition and repair. The commissioner may be called the “director,” the superintendents the “performers” of his directians, in respect to these duties. Where we speak of one officer as the deputy of another, we mean that one is deputed to act in the name and right of the other, like an agent for his principal. Doubtless, we are apt to think that whatever the principal can do his deputy can also do. We should also think so in this case, if, instead of naming the subordinate officer a superintendent of streets, he had been named deputy commissioner. But clearly •whatever the commissioner directs the superintendent to do he ■could do himsélf if he chose to do it, and he cannot direct him to do anything which he might not rightfully do himself, so that in giving the superintendent directions he deputes him to perform -some part of his own functions, and to that extent the superintendent is the commissioner’s deputy. Why is it that the statute does not specify the services which the superintendent is to perform, and furnishes him with no chart of duty, except the directions of the commissioner ? " Plainly, in order that the commissioner should be responsible to the people, and the superintendents to the commissioner, to that end the relations between the commissioner and his superintendents may be as confidential as the nature of the case and the personal qualities of the officials will admit; certainly not less confidential than the relation of a private secretary or a‘chief clerk. The evidence as to the practical administration of the duties of the department tends to show that intimate relations which the superintendents hold to the commissioner. The case of the People ex rel. Rossney v. Armbruster, 59 Hun, 586; 36 St. Rep. 918, is much like this, and may be cited ;as authority for the conclusion here announced.

Judgment is directed for the defendant, with costs.


author: Bookstaver, J.

text:
    William A. Lord, Resp’t, v. Charles Spielmann et al., App’lts.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    Deposition — Discovery and inspection.
    A person, who has a direct interest in the profits and losses of the business, and is, in one manner or another, under one name or another, entitled to a portion of the proceeds of the common venture, has pi'ima facie ■a right to an inspection of books, unless the application is made in bad faith, and it is immaterial that he has had an opportunity to inspect them.
    Appeal from an order, granting motion for an inspection and -discovery, with leave to take copies of certain books, papers and documents in defendant’s possession.

      Charles E. Rushmore, for app’lts; Estes, Barnard & Tiffany, for resp’t.
   Bookstaver, J.

— This action is for. an accounting of the business transacted between the plaintiff and the defendants since the 31st day of December, 1890, under a written agreement whereby the plaintiff was to have the entire charge of the necktie department in defendant’s store for three years from Januaay 1, 1891; the defendents to advance all money required for the conduct of .the business in said department, including the wages of all salesmen and employes, traveling expenses, payments for merchandise, etc., for the department, all of which advances and payments were to be charged to plaintiff or his department in defendants’ store, and they were to keep the books. By the agreement the plaintiff was to pay defendants interest on all goods bought and in stock, allow them six per cent, on the gross sales, and percentage on the net sales, to cover defendants’ commissions, and for store rent, fire insurance, office expenses, etc. Plaintiff was also to bear all losses except bad debts, which were to be shared equally between the parties; and after repaying to defendants all expenses, interest, and advances, plaintiff was to have the balance of the net profits;, and he was to arrange for all goods purchased and assigned, and all goods consigned to him were to be turned over to defendants, who were to hold the same as security until all claims against the- ■ plaintiff were paid. According to the agreement, statements of the business were to be rendered by defendants to plaintiff, and they were to supervise and control the department, as well as the advances'to be made to the plaintiff, etc. The parties carried out this agreement, so far as appears, until the spring of 1893, when defendants claim plaintiff went abroad against their will, and neglected: the business, and on this return in May they refused to continue-further business relations with him. After the action was commenced, plaintiff asked for an inspection of the books for the entire period he was with the defendants, but the learned justice who heard the motion denied the application, so far as the years 1891 and 1892 were concerned, on the ground that the accounts for those years were formally settled and adjusted, and were accepted by the-plaintiff as correct; and on the further ground that there was no allegation of error in these statements, except as to a small charge,, which was too trifling to authorize a reopening of the accounts so-adjusted ; but granted it so far as to direct the defendants to produce and deposit certain books containing, entries of the business of the necktie department, and also the bills and documents relating to that department, for the year 1893, down to April 1, 1893,. in the office of a referee, appointed by him to have the custody of the same in order to enable the plaintiff to examine the books, paper’s, and documents, and take copies of the same. As between partners , an inspection of the books of the copartnership is permitted almost as a matter of course. And where a person has a. direct interest in the profits and losses of the business, whether such relation constitutes him a partner or a principal bringing business to the firm, or an employe entitled to a share of the profits, or a co-worker with a partnership in the general business, so long as he in one manner or another, under one name or another, is entitled to a portion of the proceeds of the common venture, a. prima facie case is presented, entitling him to an inspection, unless it appears that the application was made in bad faith. The mere fact that the plaintiff had an opportunity to examine the books, etc., does not preclude him from his'right to an inspection, and to-an examination made by an expert, in order that he may be entitled to properly prepare his case for trial. Vieller v. Oppenheim, 58 St. Rep. 190; 26 N. Y. Supp. 1051; 31 Abb. N. C. 181, and cases cited in note; Lefferts v. Brampton, 24 How. Prac. 257; Union Paper-Collar Co. v. Metropolitan Collar Co., 3 Daly, 171; Amsinck v. North, 62 How. Prac. 114; Ahlmeyer v. Healy, 12 St. Rep. 677. The statements furnished him were not itemized, and the defendants’ books are his only means of gaining the information sought. The contention of the appellants that the books could be produced on the trial by a subpoena duces tecum is not well founded. It is manifest such a course would not avail the plaintiff in preparing his case for trial, and is no reason why an order like the present should not be granted. Lefferts v. Brampton, supra; Babbitt v. Crampton, 1 Civ. Proc. R. 169; 2 Wait, Prac. 553; Low v. Graydon, 14 Abb. Prac. 443. We therefore think the order of the special term was proper, and should be affirmed, with costs. All concur.


author: Bischoff, J.

text:
    Samuel L. Bailey, App’lt, v. Ellen A. Crowell, as Temporary Receiver, etc., Resp’t.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    Summary proceedings — Firm—Assignee.
    Where one partner leases premises to the firm upon an agreement for rent to be paid by the latter, neither he, nor his assignee, can maintain summary proceedings to recover possession of the premises for non-payment of rent.
    Appeal from a final order in summary proceedings in favor of defendant.

      Henry Tompson, for app’lt; William S. Lewis, for resp’t.
   Bischoff, J.

— This proceeding was instituted by the plaintiff to recover possession of certain premises occupied by defendant as temporary receiver of the assets of the copartneship of Grano & Crowell. The building of which the premises in suit forms a part was held by Grano under a lease from the owners, Becar and others, which lease had been assigned by Grano to the plaintiff some time prior to the date when the rent, the nonpayment of which is the cause of this proceeding, accrued. The firm of Grano & Crowell originally took possession by the terms of the partnership agreement, which, so far as is material to the controversy, provided as ■ follows:

“ It is hereby mutually agreed on the 15th day of May, 1894, between the said J. M. Gano and Mrs. F. A. Crowell, that the said Gano will furnish the funds necessary to the equipment and furnishing for the said restaurant, and also furnish the store at a, rent agreed on between the partnership and said Gano, at the. annual rental of nine thousand dollars ($9,000), payable monthly.”

Upon the date of the assignment of the Becar lease to plaintiff by Gano the latter also assigned to him his interest in the above-provision of the partnership articles in the following form, indorsed upon the agreement:

“ For a valuable consideration, I, James M. Grano, do hereby sell, assign, transfer, and set over to Samuel L. Bailey, of the city, of Brooklyn, all my right, title, claim, and interest in and to within lease.”

It is under this assignment that plaintiff claims possession of the store occupied by the firm, for the nonpayment of rent thereafter falling due. Certain questions as to the existence of a paroi agreement between Grano and Crowell, whereby payment of rent was to be deferred until the business realized sufficient profits, as to the right of plaintiff to institute this proceeding against the •defendant as receiver, and as to whether the agreement above quoted was actually a lease or merely an agreement for a lease, were raised upon the argument, but, in our view, the controversy is tobe determined upon another ground, which, assuming the force of the contentions to be with the appellant, supports the decision below in favor of the defendant. By the terms of the asssignment, and upon familiar principles of law, Bailey held no better position, as against the copartnership, with regard to the premises, than did Grano, his assignor, under the partnership agreement; and this proceeding is founded upon the latter’s right as thus assigned. In the case of a lease assigned by the lessor the conventional relation of landlord and tenant may be created as between the assignee and the lessee by the force of the assignment, Birdsall v. Phillips, 17 Wend. 464, and perhaps as between the lessor or his assignee and a receiver, the representative of the lessee, Hasbrouck v. Stokes, 13 N. Y. Supp. 333; but, assuming this agreement to have constituted a lease, the partnership, as tenant, or the defendant, as its legal representative, could not be held liable for rent, or to be proceeded against for recovery of the premises, at the instance of Grano, one of the partners, in an action at law, nor, necessarily, at the instance of Cano’s assignee, who claims through him, and holds no better right. Where one partner leases premises to the ■partnership upon an agreement for rent to be paid by the latter, he cannot maintain an action at law for the recovery of the rent, 2 Bates, Partn. 855; 17 Am. & Eng. Enc. Law, p. 1256; Estes v. Whipple, 12 Vt. 373; Johnson v. Wilson, 54 Ill. 419 ; Pico v. Cuyas, 47 Cal. 174, and the rule applies with full force to a summary proceeding to recover possession of the premises, Pico v. Cuyas, 47 Cal. 180; 2 Bates, Partn. 855. The reason for the rule is that the rent is but a charge upon the partnership in favor of the landlord partner, who can only 2'ecover it upon an accounting, in which event it may be determined what is due to him after deducting the items which may be debited against him in the partnership accounts. Hence an action at law for the rent would involve examination into the accounts, and so, upon well-settled principles, _ would not be maintainable by the partner. Crater v. Bininger, 45 N. Y. 548, 549; 17 Am. & Eng. Law, p. 1254, and cases cited. And thus, too, of summary proceedings to obtain possession of the premises for nonpayment of rent, for, the claim being based upon accrued rent, recourse must be had to the accounts to determine whether anything is due upon the charge in question. Bates, Partn. supra. What may be the plaintiff’s remedy in a proper action based upon his general lease of the premises, we need not determine, but, as shown, he cannot maintain summary proceedings upon the assigned agreement made by the firm of Gano.

Final order affirmed, with costs.

All concur.


author: Giegerich, J.

text:
    Leander Sparling, Resp’t, v. Louis Wack, App’lt.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    Appeal — Ybbdict.
    The determination of a justice, on conflicting evidence, will not be disturbed on appeal.
    Appeal from a judgment in favor of plaintiff, rendered by the justice without a jury.

      De Legnel Berier, for app’lt; Elliott Williams, for resp’t.
   Giegerich, J.

— This action was brought to recover the value of a bicycle claimed to have been totally destroyed in a collision with a horse and wagon driven by one of the defendant's servants, such collison being alleged to have been caused by the negligence -of the latter. The evidence adduced on the part of the plaintiff tended to show that while he was slowly riding a bicycle on an ■up grade in Fifty-Ninth street, between the easterly and westerly corners of said street and Seventh avenue, near the south rail of the car track on said street, he was run down, and his bicycle wrecked by the left hind wheel of the defendant’s baker wagon, driven from an opposite direction at the rate of ten miles an hour, and which suddenly changed its course upon approaching the plaintiff; that the latter did not have time after he observed the defendant’s driver had changed his course, to stop the bicycle, the plaintiff testifying that but five seconds elapsed from the time the driver of the baker’s wagon had turned the horse on a line with him and the time he was struck; that at the time of the accident there was a cab at the southwest corner of Fifty-ninth street and Seventh avenue, close to the south curb of said streeet, with the heads of the horses turned towards the west; and that a Columbus avenue horse car stood on the south track at said point, fifteen feet from the place where the accident happened. It also appeared from the testimony of an expert bicycle rider that a bicycle cannot be turned suddenly when close to a railroad track. This was in corroboration of plaintiff’s testimony that he could not turn by reason of his contiguity to the south rail of Said tracks, which were an inch above the surface of the roadway. The plaintiff testified: “ Q. Why did’nt you get out of the way? A. There was no way. If I turned into the car track, it would throw me off my bicycle, and he would run over me.”' The defendant’s evidence, on the other hand, contradicted that adduced upon the plaintiff’s part; the same tending, among other things, to show that at the time of the accident the plaintiff was riding fast, but badly, and in the middle of the street, away from the car tracks; that plaintiff did hot keep a straight course, and ran into the defendant’s horse with his bicycle; that defendant’s horse and wagon were on the south side of Fifty-ninth street and kept on their course, and slowly turned into Seventh avenue. Plaintiff, in rebuttal, denied that he rode badly. At the close of the evidence the defendant moved for judgment in favor of the defendant, tin the ground that plaintiff had not shown himself to be free from contributory negligence. The justice reserved his decision, but subsequently, and within the time prescribed by law, rendered a judgment in favor of the plaintiff for the full amount claimed.

There is sufficient evidence, in our opinion, as to the negligence of the defendant’s driver, and as to plaintiff’s freedom from negligence. It is true that there is a conflict of evidence as to these questions; but, in the absence of the elements justifying a review,, we see no reason for disturbing the justice’s determination of the facts in relation thereto. Lynes v. Hickey, 4 Misc. Rep. 522 ; 54 St. Rep. 129 ; Weiss v. Strauss, 39 St. Rep. 78

The judgment should therefore be affirmed, with costs.


text:
    Ethel F. Nicholson, Resp’t, v. Kate F. Moriarty, App’lt

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    1. New trial — District court.
    A justice of the New York district court has no power to set aside a. verdict and grant a new trial.
    2. Appeal — Interlocutory order — District court.
    No appeal lies to the common pleas from an interlocutory order of a district court.
    Appeal from a judgment, entered on a verdict in favor of plaintiff.-

      R. R. Root, for app’lt; E. M. Wright, for resp’t.
   Bischoff, J.

— Defendant appeals from the judgment entered in this action, and also asks us to review the determination of the justice in denying a motion to set aside the verdict and grant a new trial. This verdict was rendered after appearance by the defendant, and active litigation of the issues; hence the justice was without power to grant the motion, as we have lately held in the case of Zimmerman v. Bloch, 66 St. Rep. 358, and his ruling was correct. Morever, no appeal lies to this court from an interlocutory order tif a district court. Jacobs v. Zeltner, 9 Misc. Rep. 455; 61 St. Rep. 104; Wensley v. Randolph, 9 Misc. Rep. 457; 61 St. Rep. 131.

The judgment is assailed as against the weight of the evidence, no exceptions having been taken upon the trial, and no objections to the charge of the justice being raised; but, upon the facts, we think that there is nti ground for disturbing the result arrived at by the jury. The ’plaintiffs claim and defendants counterclaim, respectively, rested for success upon the state of an agreement between the parties, and upon what was done thereunder. As to the terms of this agreement, and as to the extent of its performance by plaintiff, the testimony was in utter irreconcilable conflict, and no aid to ascertainment of the truth was to be derived from extraneous circumstances. Therefore, following the established rule, we decline to interfere with the jury’s conclusion upon the evidence.

Judgment affirmed, with costs.


text:
    Henry Feist, App’lt, v. Third Avenue Railroad Company, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    1. Judgment — Default—Opening.
    A default in a district court cannot be opened after twenty days from the entry of the judgment.
    U. Appeal — Interlocutory order — District court.
    No appeal lies to the common pleas from an interlocutory order of a district court.
    3. Jurisdiction — Waiver.
    An objection to the jurisdiction of the court is not waived by answering “ready,” on the call of the calendar.
    Appeal from a judgment, entered on an order dismissing the complaint, and from an order opening the default.

      Charles Caldwell, for app’lt; Henry L. Scheuerman, for resp’t.
   Bischoff, J.

— Judgment in this action was rendered in plaintiff’s favor upon default, and subsequently, on defendant’s motion, an order was entered by the justice opening the default, and the cause was thereafter set down for trial. Upon the day of the trial, plaintiff appeared, and moved that the order opening the default be set aside, and that the original judgment stand, the motion being based upon the lack of jurisdiction of the justice to make the order in question. Upon the denial of this motion, he refused to proceed with the trial, and judgment for dismissal of the complaint was rendered. From that judgment, and from the “decision and order,” he has toked this appeal; the order referred to being that opening the default, and the “ decision” being the denial of the motion to vacate the order.

It is conceded that the justice made the order opening the default after the lapse of twenty days from the date of entry of judgment, and there can be no question but that in so doing he exceeded his powers, as defined and regulated by statute, beyond the provisions of which he was without authority to act. Hanlon v. Insurance Co., 9 Misc. Rep. 70; 59 St. Rep. 686. The only statutory provision whereby a default in a district court maybe opened by the justice is section 1367 of the Consolidation Act(Laws 1882, chap. 410), as amended by chapter 750, Laws 1894. Prior to the original enactment of that section (Laws 1862, chap. 484, § 16), the justices were wholly without jurisdiction over a judgment after the date of its entry upon the docket People v. Campbell, 18 Abb. Pr. 1. The amendatory act, beyond question, limits the time in which the power may be exercised to twenty days after entry of judgment, while the section itself contained no restriction as to-time. To us this is clear beyond need of argument. It is so declared in as many words, and this is not a case where any other construction, liberal or illiberal, is possible. But it is contended that section 724 of the Code, declaring the power of the courts to open defaults within one year, affords justification for the order made below. That section, however, applies only to courts of record (Code Civ. Proc. § 3347, subd. 6 of which class the district court are not. Id. § 3, subd. 3.

Hor is it essential, as claimed, that the power to open defaults, irrespective of time, should be bestowed upon these justices. If the defendant be not in fact, served with the summons, then an appeal may be entertained at any time within five years when instituted within twenty days after service of notice of entry (Code Civ. Proc. §§ 3046, 3213); or, if the service of the summons was defective, the defendant may appeal from the judgment for error in- fact. Jennings v. Miller, 10 Misc. Rep. 762; 64 St. Rep. 621; Code Civ. Proc. §§ 3057, 3213). If the plaintiff is in fault, and by reason of his failure to notify defendant of the judgment by delaying issuance of execution, or in other ways, the twenty-days limit of time to appeal should have expired, a court of equity can give the appropriate relief. Patterson v. Naehr, 6 N. Y. Supp. 513 ; and if, for the fault of the justice, under some circumstances, the right to an appeal is lost, there is an adequate remedy at 1 aw (case last cited). We are now to consider the effect of this erroneous order upon the merits of the case presented by the appeal.

From the order itself no appeal to this court is warranted. Jacobs v. Zeltner, 9 Misc. Rep. 455; 61 St. Rep. 104; Wensley v. Randolph, 9 Misc. Rep. 457 ; 61 St. Rep. 131; Rosenthal v. Grouse, 12 Daly, 532, our power to entertain appeals from the district courts being derived from the statutes only; and, in the absence of statutory provision, we are unable to review orders made by such courts other than final orders in summary proceedings. If hardship results, it is due to the omission of the legislature, when enlarging the powers of the justices, to correspondingly provide for a review of their proceedings. See Rosenthal v. Grouse, supra. But the appeal from the judgment in this case enables us to relieve the appellant, although the appeal from the order must necessarily be dismissed. That order having been granted and the original judgment set aside through the justice’s act in excess of his powers, the act was without significance and the order void, Schwartz v. Wechler, 20 N. Y. Supp. 861, and cases cited; hence the judgment as rendered was unaffected. The litigation in the court below having been closed by the entry of the judgment in-plaintiff’s favor upon an inquest, and the lapse of twenty days, the justice was without jurisdiction to reopen the proceedings, and to give judgment for dismissal of the complaint, upon plaintiff’s refusal to proceed with the trial.

Some importance appears to be attached to the fact that, upon the call of the calendar in the court below, plaintiff answered “ready,” and only raised his objections when the case was reached for trial. That a party cannot raise the objection of lack of jurisdiction over the subject of the litigation upon the trial, especially where the situation is such as were here the case, would seem to-be a novel proposition. Such an objection is certainly not waived by a party’s expressing his readiness to try the issues, among which this question is the chief. Total lack of jurisdiction in the court below is a fact of which the appellate court may and should take notice, even when the point was not raised at the trial. Brookman v. Hamill, 43 N. Y. 554 ; Palmer v. Lorillard, 16 Johns. 348 ; Sanford v. Granger, 12 Barb. 392. In this case, however, the question of j urisdiction was the only one presented to the court, below, and upon which the matter was decided.

For the reasons noted, the judgment is reversed, with costs, and the appeal from the order dismissed, with costs.


text:
    New York Small Stock Company, Resp’t, v. Fredericka Klosset, App’lt.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    Statute of frauds — Debt of another.
    A promise by a wife to pay, out of the purchase price agreed to he paid by her for her husband’s business, a debt due from him to a third person, is not within the statute of frauds.
    Appeal from a judgment, rendered in favor of plaintiff by the justice without a jury.

      Louis Wendell, Jr., for app’lt; Joseph C. Wolff, for resp’t.
   Giegerich, J.

— The unverified complaint alleges that on or about the 13th day of November, 1894,-the defendant was indebted to one Lawrence Klosset in the sum of upwards of $1,500 ; that at the same time the latter was indebted to the plaintiff in the sum of $157.27; that at the time aforesaid the said Lawrence Klosset and the defendant made an agreement by which the latter promised and agreed with the former, and at his request, to pay the plaintiff said sum of $157.27; and that plaintiff demanded from the defendant payment of said sum, but no part thereof has been paid, except the sum of $57.77. The evidence adduced on the part of the plaintiff tended to show that on the 9th day of November, 1894, said Lawrence Klosset, the husband of the defendant, being indebted to the plaintiff in the sum of $157.27 for meat-sold to him, sold out his business to the defendant, his wife, for $1,500, no part of which was then paid : that as part of the consideration of such sale the defendant orally agreed to pay said indebtedness of $157.27 to the plaintiff, which was to be kept out of the said purchase price; that on the 13th day of November, 1894, the defendant paid to the plaintiff $57.77, and promised to pay the balance in.a few days, which she failed todo. The plaintiff then brought this action to recover said balance.

The evidence on the part of the plaintiff was contradicted by that-adduced by the defendant; but we assume from the judgment that-the justice credited the plaintiff’s version of the transaction, and we see no reason for disturbing his determination of the facts, in the absence of the elements which are requisite to review such -determination. Lynes v. Hickey, 4 Misc. Rep. 522 ; 54 St. Rep. 120 ; Weiss v. Strauss, 39 St. Rep. 78. The facts being as above stated, the case comes directly within the principles o±r the decision in Reynolds v. Lawton, 62 Hun, 596 ; 43 St. Rep. 578; and the doctrine of Lawrence v. Fox, 20 N. Y. 268, and kindred cases. Riordan v. Presbyterian Church, 6 Misc. Rep. 84 ; 55 St. Rep. 396, and Phelps v. Rowe, 75 Hun, 414; 58 St, Rep. 753. In the first cited case a firm composed of three persons — Bay,Austin, A Bowdirt — was indebted to one Reynolds for rent at the time when one Lawton bought out the interest of Bay and Austin with a view of continuing the business - with Bowdirt, and, as a part of the consideration of such sale, orally agreed to pay the rent due; and, Lawton having failed to pay such rent, Reynolds brought an action against the former, based upon this promise, to recover the amount of the indebtedness of the firm to him, and it yvas held that the promise by Lawton was one to pay his own debt to Bay and Austin, by paying their debt to the plaintiff, and was therefore valid, though not in writing, and that it was a promise made for the benefit of the plaintiff, and could be enforced by him. It follows from these, cases and many others which could be cited, that the defendant’s promise to pay her husband’s debt to the plaintiff out of the purchase price for the business was not within the statute of frauds ; hence the justice properly denied the motion for a dismissal of the complaint, 'made when plaintiff rested, and renewed upon the close of the entire case. For these' reasons the judgment should be affirmed, with costs.


text:
    New York Small Stock Company, Resp’t, v. Third Avenue Railroad Company, App’lt

      (New York Common Pleas, General Term,

      Filed June 3, 1896.)

    -Appeal — Evidence.
    Where there is a vast preponderance in the evidence in favor of the appellant, and his case is supported by numerous witnesses apparently entitled to credit, and the respondent’s case stands upon his own testimony, or that of one under him and interested in the result, it is the duty of the general term to exercise an independent judgment upon the evidence offered.
    Appeal from a judgment, entered in favor of plaintiff. ,

      Samuel S. Slater and Henry L. Scheuerman, for app’lt; Joseph C. Wolff, for resp’t.
   Bookstaver, J.

— This action is for damages claimed by plaintiff,by reason of a collision between a wagon belonging to it and a cable car of the defendant at the intersection of Thirty-First street and Third avenue. From the evidence, we are very clearly of the opinion that the accident was due almost solely, if not entirely, to the negligence o£ the plaintiff’s driver in the conduct of his vehicle. It is true that the driver testified that, when he was at the cross walk on Thirty-First street and Third avenue, he looked and saw the car, a block away, coming down town, and that he thought he had ample time to cross the track. But this seemed incredible to the court, for it asked:

“ How did it get that block while you were going a few feet, before you got across the track? A. That is what I cannot say. •Q. It could not have been a block away ? A. It was about a block away. Q. If you were on the cross walk, your horses’ heads would be almost on the easterly track, wouldn’t they? A. Yes. Q. Within a foot or two ? A. Yes. Q. That would not have taken three seconds to walk across ? A. I had a very heavy load, and they crawled, going across the track.”

It also appears from the evidence that the rate of the cable is nine miles an hour, which rate cannot be exceeded by a car receiving its motive force from it. It is well known that a horse will walk from two and one-half to three miles per hour, or about one-third as fast as the car traveled; and hence it is manifest that the car must have been much closer to the driver of the wagon than he testified. The only other witness lending any support to plaintiff’s theory was one Davis, who stood on the northwest corner of Thirty-First street and Third avenue, about 100 feet ■away from the place of the accident; and it is apparent from his testimony that the plaintiff’s wagon was between him and the approaching car, so that he could not, with any accuracy, give the distance they' were apart when the plaintiff’s driver undertook to cross the street. Besides, it was about 9 o’clock in the evening of a damp and foggy night. In opposition to this state of facts, there is the testimony of six witnesses produced on behalf of the defendant, and one produced by the plaintiff, all of whom agree that when the horses attached to plaintiff’s wagon were about on the line of the easterly rail of the car tracks and in a position of safety, the car was not more than thirty, or, at the most, forty, feet away. Nearly all of these witnesses were entirely disinterested, and, as far as appears from their testimony, reliable persons, while the driver was certainly interested to the extent of casting the blame upon the servants of the defendant, rather than bear it himself. While it is quite true that a preponderance of evidence does not necessarily mean the greater number of witnesses, yet, where the evidence stands in the proportion it does in this case, it can with no show of reason be said that the plaintiff has established his case by that preponderance of evidence which the law requires. In cases like this, it is our duty to review the evidence, and to reverse if the judgment is against the weight of evidence adduced on the trial; and in the consideration of the weight of evidence, we must have due regard to the kind and quality of the evidence, the degree of credibility to which the testimony of the witness is entitled, and the apparent probability or improbability of its truthfulness. Brown v. Sullivan, 1 Misc. Rep. 161; 48 St. Rep. 685. Where there is a vast preponderance in the evidence in favor of the defendant, and the defense is supported by numerous witnesses apparently entitled to credit, and the plaintiff’s case stands on his own evidence, o.r that of one under him and interested in the res.ult, and but slightly supported by other evidence, it is the duty of the general term to exercise an independent judgment upon the evidence offered. Kaane v. Iron Co., 139 N. Y. 369; 54 St. Rep. 653. See, also, Jacks v. Darrin, 3 E. D. Smith, 559; Schintzer v. Adelson, 8 Daly, 271 ; Macniffe v. Ludington, 13 Abb. N. C. 407; Marvin Safe Co. v. Foss, 44 St. Rep. 130. The facts, as disclosed by the evidence in this case,, are very nearly analogous to those in Hamilton v. Railroad Co., 6 Misc. Rep. 382; 56 St. Rep. 397, where the judgment was reversed, and a new trial ordered, with costs to the appellant, to abide the event; and the same course must be pursued in this-case. .


author: Daly, Ch. J.

text:
    Frederick S Myers, App’lt, v. Moses S. Rosenback, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    1. False Representations — What are.
    A representation by the lessor of a building to be used for manufacturing purposes that it is strong enough to sustain an engine implies that it will support the engine when put in operation.
    2. Same — Ignorance.
    A person is liable for false representations, if he states as facts matters-which do not exist, when he had no knowledge whether the statement is. true or false. . ^
    3. Same — Repairs. .
    The obligation of the lessee, under the lease, to keep the premises in repair, did not require him to strengthen them for the use of the engine.
    4. Same — Notification.
    Notification by the building department imposed upon him no obligation to make any alterations or repairs.
    5. Appeal — Harmless error.
    An error in the admission of evidence in support of a portion of a counterclaim is harmless, where the whole counterclaim is rejected.
    Appeal from a judgment of the city court, affirming a judgment entered on a verdict in favor of defendant.
    The action was to recover $116.66 rent for the month of June,. 1892, u.nder a lease of premises 205 and 207 East Ninety-Ninth street, in this city, made December 23, 1891, for a term of four years and one month from January 1, 1892, at the.yearly rent of $1,400, payable in equal monthly payments on the 1st of each month, in advance. The defendant vacated the premises about June 6, 1892, without paying the rent accruing on the 1st day of that month. The defense was misrepresentations of plaintiff, inducing the making of the lease, with a counterclaim for damages. The verdict was for defendant, without damages.

      Hamilton R. Squier, for app’lt; Horwitz & Hershfield (Otto Horwitz, of counsel), for resp’t.
   Daly, Ch. J.

— The defense was, in effect, that the lessor represented that the building which was to be demised was strong enough to support the gas engine of sufficient power for the lessee’s-business of corset manufacture, for which he required power generated by steam or otherwise; that the lessor recommended a certain engine, which was put in by the lessee, but the vibration caused by it rendered the building unsafe, and prevented the lessee from carrying on his business; that upon the lessee’s suggestion the machine was removed to different places in the building, with a view to lessen the vibration, but, all efforts to overcome it being ineffectual, the lessee was forced to abandon the premises. The verdict for defendant, the lessee, under the charge of the court, establishes the facts essential to the defense: That before the lease was made the defendant stated to the plaintiff the nature of his business, and the machinery required therein, and that the plaintiff told him the building was proper for the purpose; that plaintiff recommended the use of a particular gas engine, which was put in, but as soon as it was put to work the building shook so that the tenant’s business had to come to a standstill, and that the representations were made with intent that the lessee should rely upon them, and that he did so; and that the building was unfit to carry the machinery necessary for plaintiff’s business. The lessor denied the making of the representations, but upon the issue of fact the jury has found for the defendant. It remains to consider the questions raised by the exceptions upon which the plaintiff presents this appeal.

It is urged at the outset that a representation that the building was strong enough to sustain the engine does not imply that it would support the engine when put in operation, and that, as there was no representation that the building would not vibrate under sucii circumstances, no false representation is proved. It hardly seems necessary to argue this question. The engine pas to be put in the building to be used, and a representation that the building would sustain it clearly meant that it would sustain it while in operation; and, as such operation necessarily tended to cause vibration, the representation necessarily rendered to that effect. If there was any question as to the plaintiff’s knowledge of the effect of the operation of the engine, it could have been submitted to the jury, but no request therefor was made. The question whether the vibration was caused by defects in the construction of the machine, or in the methods of its operation, was left to the jury, and their verdict establishes that the vibration was due to the insufficiency of the building.

It is also contended that the tenant had full opportunity to examine the premises before the lease was made, and did examine them ; also that the lessor’s representation as to the strength of the building was a mere expression of opinion, no engine having been theretofore operated in the upper floors of the building (the part let to defendant), and so he could not know whether there would be vibration or not. As there was no engine in the premises when the lessee examined them for the purpose of hiring, he had no opportunity to ascertain beforehand the truth or falsity of the representation of the lessor. As to the legal responsibility of the latter for an affirmative representation as to a matter which he did not and could not know to be true, the rule is well settled :

“ In case a party, for the purpose of inducing another to contract with him, states, on his personal knowledge, that a material fact does or does not exist, without having knowledge whether the statement is true or false, and without having reasonable ground to believe it to be true, he is liable in fraud, if the statement is relied on, and is subsequently found to be false, although he had no actual knowledge of the untruth of the statement.” Daly v. Wise, 182 N. Y. 312 ; 44 St. Rep. 422, citing Bennett v. Judson, 21 N. Y. 238 ; Marsh v. Falker, 40 id. 562 ; Oberlander v. Speiss, 45 id. 175 ; Wakeman v. Dalley, 51 id. 27; 2 Pom. Eq. Jur. §§ 887, 888; Story, Eq. Jur. § 193.

But it is alleged that, after the discovery that the building was not what it was represented to be, the lessee continued in possession, and failed to promptly exercise his right to rescind for the fraud. The lessee was in possession five months, but during the whole of that time, at the instance of the lessor, was engaged in making experiments with the engine, in the hope of locating it in a position where it could be operated without danger. The evidence warranted the finding that although the lessee, soon after he took possession, became aware that the engine could not be set up in a certain part of the premises without rocking the building, he was induced by the lessor to await the result of certain changes in the location of the engine, and of alterations which the lessor-made in the building with a view to strengthen it. The case is therefore brought within the rule which allows the tenant, where fraud has been practiced, a reasonable time after the discovery of the fraud within which to repudiate the contract, and, if he remains in possession under the assurance of the lessor that the cause of the complaint will be removed, his continuance during such period is “not of such a nature as to amount to an adoption of the contract, or to make him liable for the payment of rent forth e period which he actually occupied.” Wallace v. Lent, 1 Daly, 484.

The obligation of the lessee, under the lease, to keep the premises- in repair, did not require him to strengthen them for the use of his engine ; and so the notification by the building department imposed no obligation upon him to make any alterations or repairs, nor did it, by itself, justify his abandoning the premises. His right to abandon followed his right to rescind for the original misrepresentations. As this was not a case of technical eviction, the rule that rent accruing before actual eviction is recoverable does not apply.

The exceptions to rulings on evidence do not require reversal. Plaintiff complains of the evidence received under the counterclaim of defendant for damages for the alleged fraudulent misrepresentations. Evidence was properly received as to damage, as the plaintiff, by replying to the counterclaim, in effect, agreed to litigate the issues presented by it, and cannot now object that it was not a proper one, Hammond v. Terry, 3 Lans. 186 ; Ayers v. O'Farrell, 10 Bosw. 143-147; and error in the admission of evidence of items of damage worked no injury to the plaintiff, since the jury disregarded the whole counterclaim. The instructions given by the court leave no doubt upon this point. Evidence was given as to the condition of the building with respect to being out of plumb, and so forth, in 1890. This was material to show its condition in 1891, when the lease was made, as such condition might be presumed to continue, and it was for the plaintiff to show that it did not. The question put by plaintiff to his expert to show that the building, although out of plumb, was safe, was not within the issues, which involved only the question as to whether or not the building would support the engine without danger from the vibrations caused by its operation. Evidence of what plaintiff’s expert reported to him upon examination of the building after the lease was made was immaterial on the question of plaintiff’s scienter, as the issue was upon his intention and knowledge before and at the time that the lease was made, not afterwards. Other exceptions are immaterial, and the judgment and order must be affirmed.

Judgment and order affirmed, with costs.

All concur.


author: Daly, C. J.

text:
    Max Kruger, Resp’t, v. Bernard Galewski, App’lt.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    1. Trial — Dismissal of complaint.
    A motion to dismiss the complaint on the ground that it does not state facts sufficient to constitute a cause of action will not be granted at the close of plaintiff’s case, where he has proved facts entitling him to recover.
    2. Honey had and received — Earnest money.
    A purchaser may, in an action for money had and received, recover earnest money on the ground of misrepresentation as to title.
    Appeal from a judgment of a city court, affirming a judgment entered on a verdict in favor of plaintiff.

      Gustave S. Drachman, for app'lt; Alfred D. Lind (Henry M. Goldfogle, of counsel), for resp’t.
   Daly, C. J.

— The principal contention of appellant is that the complaint fails to state facts sufficient to constitute a cause of action, and that the complaint should have been dismissed. The motion to dismiss the complaint for that reason was not, however, made until the close of the plaintiff’s case, and after plaintiff had proved facts entitling him to a recovery. I find no authority holding that, at such a stage of the case, objection may be taken to the pleading on the grounds stated. On the contrary, it has been held that where facts essential to a cause of action, and which might be supplied by amendment, are omitted from the complaint, but those facts are proved at the trial after the judge has refused to dismiss the complaint, the defect of statement is no ground of appeal to the appellate court, Lounsbury v. Purdy, 18 N. Y. 515, or even of review by the general term, Morton v. Pinckney, 8 Bosw. 135. Although these authorities are affected by the decision in Tooker v. Armoux, 76 N. Y. 897, the rule in the latter case is only applicable where the motion to dismiss the complaint for want of facts sufficient to constitute a cause of action was made at the opening of the trial, and before evidence is taken, and where objection is duly interposed when proof is offered of the facts .which are not pleaded. In this case the motion was not made at the opening of the trial, and the evidence of the cause of action offered by the plaintiff was not objected to. Under these circumstances, the defect in the complaint must be deemed to have been waived; and it only remains to inquire as to whether a cause of action for money had and received was made out by the proof,, and whether the various other exceptions taken at the trial require that the judgment should be disturbed.

The proof showed that the plaintiff’s assignor, Philip Pfeiffer, paid to the defendant $250 on December 11, 1891, by a check to defendants order, which was duly cashed, and the money received by the defendant; that this payment was a deposit on account of the purchase price of property which the defendant was about to contract to sell to said Pfeiffer; that defendant, in answer to an inquiry as to a mortgage upon the property, stated that the first mortgage was to run three years, and in reliance upon that statement the deposit was made. It subsequently appeared that the mortgage had less than a year to run, and Pfeiffer declined to take the property, and that the $250 had been demanded of defendant, and defendant had refused to repay it. The finding of the jury in plaintiff’s favor established these facts, although defendant disputed the alleged representations as to the mortgage. These facts supported a cause of action for money had and received. Such an action may be maintained to recover back money obtained by fraudulent representations, Byxbie v. Wood, 24 N. Y. 607 ; and to recover back money paid on a contract for the purchase of real estate where the purchaser had an option to rescind within a certain time, and demand back the money, Eno v, Woodworth, 4 N. Y. 249 ; and if the money had been paid upon a mutual mistake as to the time that the mortgage had to run, without fraud or false representation on the part of the vendor, an action for money had and received would lie.

The exceptions taken by defendant upon the trial, and discussed upon his brief, show no error. Plaintiff offered in evidence, as an assignment of thé cause of action, a transfer of all of Pfeiffer’s claim and demand against defendant by reason of the check given for the deposit above referred to; and this was objected to, on the ground that the assignment was not for the cause of action sued upon; but the proof connected it with the identical payment for which the action was brought, and such proof, as before remarked, has been received without objection.

The motion to dismiss the complaint at the close of the plaintiff’s case, on the ground of a material difference between the complaint and the proof, was properly denied. The facts proved did not in any respect differ from those alleged in the complaint, but only supplied omissions in the pleading, of which defendant had not taken advantage in the proper manner or at the proper time.

The objection to the question put to defendant by his counsel as to his readiness and willingness to convey to Pfeiffer upon the, latter’s compliance with the terms and the conditions of the contract was properly sustained, as that was not the issue in the case, which was whether plaintiff’s assignor was justified, upon the facts, in refusing to take the property.

Payment by defendant of commissions for brokerage did not affect the issue one way or the other, and evidence and all questions respecting such payment were properly excluded.

The judgment and order appealed from must be affirmed.

All concur.


text:
    William A. Low, Resp’t, v. James A. Learned, App’lt.

      (New York Common Pleas, General Term,

      Filed June 3, 1895).

    2. Bills and notes — Consideration
    The surrender of the original note is no part of the consideration for a renewal note, unless made so by agreement.
    3. Same — Protest.
    Where a note is protested in another state, it is not necessary to prove the protest law of that state.
    Appeal from a judgment entered on a verdict directed by the court in favor of plaintiff.
    The action was brought upon a promissory note for value received, made by the Westray's Point Land & Improvement Company, dated August 29, 1890, at three months, for $1,500, payable at the First National'Bank, Tom’s River, FT. J., to the order of the ■defendant, James E. Learned, and indorsed by him. The defense was a denial of knowledge, or information sufficient to form a belief, as to the making of the note; a denial that the note was made for value; a denial of the allegation of the indorsement thereof by ■defendant to the plaintiff for value; and a denial of the allegation ■of the complaint as to presentment, nonpayment, and notice thereof to defendant. A verdict was ordered for the plaintiff for the full amount of the note.

      P. Nolan, for app’lt; John H. Stoutenburgh (A. Bell Malcomson, of counsel), for resp’t.
   Daly, C. J.

— The defendant issued, as accommodation indorser, and the proof shows that he delivered, a note in suit, indorsed by him, to the plaintiff, in renewal of a previous note of the same maker which also bore his indorsement. Upon the trial he claimed that there was a failure of consideration, unless the plaintiff showed .•a surrender or return of the original note. As he was an accommodation indorser, proof of consideration or of value received by him was unnecessary. From the very meaning of the term, no proof of consideration is requisite in the case of “accommodation” indorsement 2 Am. & Eng. Enc. Law, 364. So far as the maker ■of the note was concerned, it was not necessary for the plaintiff "to show any consideration or value received by the company; the ■note in suit being a renewal of the company’s own paper, and acceptance and retention of the plaintiff by the new note, with the agreement for extension or forbearance thereby implied, being a good consideration. Id. 361, and cases. Appellant relies upon Miller v. Ritz, 3 E. D. Smith, 253, which was a case of an express .agreement by the holder to return the old note in consideration of the delivery of the new obligation, and it was held that a. -failure to return the old note was a failure of consideration. In ■this case the renewal note was delivered by the indorser without-exacting any agreement to return the original note to him or to-the maker, and hence there was no failure of consideration. Nevertheless, proof of the return of the old note by mail was given by the plaintiff, upon the intimation of the trial judge that evidence thereof was necessary, and defendant denied the receipt of it. His request, subsequently, to go to the jury upon the question of fact as to whether he ever received it, was properly denied,, as the return of the instrument could not affect his liability upon the renewal note.

Defendant contended on the trial that plaintiff had not proved protest, inasmuch as there was no evidence of the laws of New Jersey, where the note was protested, as to what constituted protest in that state, and no proof as to where the notice of protest, was sent, or that due diligence was used to find the address of the indorser. There is no presumption that there is any difference in the law merchant in this state and in New Jersey. The notary public called by the plaintiff showed that he pursued the usual course, and made demand for payment of the note on the day it was payable at the bank named in it"; and he produced his protest book, with copies of the notices of protest, showing that notice was mailed to the defendant at the place where, it appears from his own evidence, he was doing business. There was no force, therefore, in his objections made on the trial. On this appeal he urges that there was no proof of nonpayment. That point was not made on the trial, and, if it had been, the possession of the note by the plaintiff would have been a sufficient answer.

It is also urged that the notary’s certificate of protest is not. proof. The notary’s protest book and certificate were admitted without objection on the trial. None of the other objections now urged was taken upon the trial. The proof shows clearly that the-note was duly demanded, was .not paid, and that proper and timely notice thereof was given to defendant, according to the custom of merchants. The judgment is affirmed, with costs.

All concur.