text:
    Jerry Petrie, Resp’t, v. The Phenix Ins. Co. of Brooklyn, App’lt.

      (Court of Appeals, Second Division,

      Filed March 8, 1892.)

    1. Insurance (Marine)—Construction of policy—New York harbor.
    Plaintiff held an open policy, accompanied by a book to contain the risks proposed and taken. A proposal, instead of stating that the boat was to run from Brooklyn to Tarrytown, contained the words “New York Harbor,” under the heading “ from,” and the column “to” was blank except that the word “ Harbor ” extended into that column. The book was sent to tlie agents of defendant, who wrote “Harbor” in the approval column and returned the book. The boat sunk on a bar at Tarrytown. Held, that the contract was not void because the duration of the risk was. not fixed by time, nor for a voyage between specified places, as a number of cargos had been previously insured by defendant for plaintiffs in a. similar way, and that the question as to whether New York harbor included Tarrytown was properly submitted to the jury.
    3. Same—Loss insured against.
    The boat being seaworthy, was moored alongside the dock, grounded when the tide went out, and broke and the cargo was destroyed. Held,. ■ that this was a loss insured against by defendant.
    Appeal from a judgment of the general term of the supreme court of the second department, which affirmed a judgment entered on verdict, and also affirmed an order denying a motion, for a new trial made on the minutes.
    April 26, 1886. the defendant issued to Sherman Petrie an. open uniform canal cargo policy, by which it undertook to “ insure the several persons whose names are hereafter endorsed hereon as owner, advancer or common carrier, on goods * * *' on his own boat, or boats belonging to others, loaded on commission or charter. From place to place, as endorsed hereon, or in a■ boolc Jcept for that purpose, at the rate, and on the goods, * * *' as specified in the said endorsement." “ No risk considered as insured under this policy until said endorsement is approved and. signed by this company or its duly authorized agents at New York, unless with special agreement with the company, and endorsed hereon.

      “ Beginning the adventure upon the goods * * * from and immediately following the lading thereof, at the port or place endorsed as aforesaid, and continuing the same until the said goods * * * shall be safely landed at the port of destination as aforesaid. rj
    “ Touching the adventures and perils which the said insurance company is contented to bear and take upon itself on said trip or voyage, they are of the seas, canals, rivers, and fires, and all other-perils, losses or misfortunes that shall come or happen to the hurt, detriment or damage of the said goods * * * laden on board of said boats on the voyage or trip aforesaid.” Excepting certain perils and losses which do not include the misfortune which happened to the boat in question.
    . It was provided in the policy that in case of loss, “ and within thirty days from the time the same may happen, the said insured shall deliver to said company as particular an account thereof as the nature of the case will admit.” Also : “ That no suit or action against this company for the recovery of any claim upon, under or by virtue.of this policy shall be sustainable in any court of law or chancery unless such suit or action shall be commenced within the time of twelve months next after such loss or damage, shall occur.”
    With this policy a book was delivered to the insured ruled in. columns and having the following printed headings: “Date; Account of; Vessel or boat; From; To ; Cargo; Amount; Premium ; Signature of Approval.”

      Sherman Petrie was a forwarder engaged in business at 142 Broad street, New York. W. M. Onderdonk & Co. were insurance brokers, agents of defendant and engaged in business at Nos. 1 and 3 Beaver street, New York. By the course of business between Petrie and W. M. Onderdonk & Co. the cargoes laden on boats were entered by Petrie or his clerk in this book, which was sent daily to W. M. Onderdonk & Co., and they approved or disapproved of the risk so offered. Their approval was indicated by entering in the column headed “ Signature of Approval ” the number of the page of their own book in which the risk was entered. This was the usual form of approval, but when risks were taken for “ The Harbor of New York ” the approval of the agents • was denoted by the word “ Harbor ” written in the column headed “ Signature of Approval.’’
    The premiums were fixed by the insurance agents and charged to Petrie, who paid them monthly. October 17, 1887, Petrie loaded the canal boat “ C. L. Abel ” with one' thousand barrels Portland cement, and on that day entered in the columns of his insurance book: “ Date, Oct. 17, 1887, Account of, Sherman Petrie ; Vessel or Boat, C. L. Abel; From, New York Harbor; To, Blank,” except as the word “ Harbor ” extended into that column; “ Cargo, Cement; Amount, $2,500 ; Premium, no entry; Signature of Approval, no entry and sent the book to W. M. Onderdonk & Co. on the same or the next day, and thereupon they wrote the word “ Harbor ” in the column headed “ Signature of Approval ” and returned the book to Petrie. The boat left Brooklyn October 19, 1887, and reached Tarrytown, its destination, the next morning, where later in the day it sank at its dock. The sinking was caused by the tide going out and grounding the boat at about its center, which caused it to break in two, so that it filled with water and destroyed the cargo. This action was brought December 1, 1888, to recover this loss. The defenses interposed were: (1) That the defendant did not insure the risk, (2) that a valid contract to insure was not entered into because the duration of the risk was neither measured by time nor termini of the voyage; (3) that the.loss was not occasioned by the perils insured against; (4) that proofs of loss were not furnished within thirty days ; (5) that the action was not begun within twelve months after the happening of the loss.

      Edwin G. Davis, for resp’t; Joseph F. Mosher, for app’lt.
   Follett, Ch. J.

The question which meets us at the threshold of this discussion is, was the evidence sufficient to justify the submission of the question, whether the defendant’s agents approved of the application for this insurance ? ' The authority of W. M. Onderdonk & Co. to bind the defendant by endorsing in the book in any form their approval of the risk proposed, is not denied. Six days before the entry in question the insured entered on the same book an application for insurance on the boat “ Delia McKeever” for $2,500 on cement, New York harbor, which was approved by writing the word “ Harbor ” in the column desigmated “ Signature of Approval.” The insured testified that other risks were approved by the entry of the word “ Harbor ” in the approval column. A clerk of the insurance brokers, who was ■sworn in behalf of the defendant, testified that he wrote the word ■“ Harbor” opposite this application and the same word in the same book against other applications for insurance, and that it indicated an acceptance of the risk by insurers other than the defendant. The witness also testified that he never informed the insured that the word “ Harbor ” indicated that the risk was not taken by defendant, but by some other company, and that the insured had no other open policy and book, except these issued by defendant. The assured testified that these brokers did all of his insurance, that he always applied for it in the same way by •entering the proposed risk in this book and sending it to the agents for their approval, who usually returned certificates of insurance ■executed by the defendant and that he never had received any from any other company. This state of the evidence justified the court in submitting the question of the acceptance of the risk by the defendant to the jury and its verdict must be regarded as •final upon this question.

Was the contract of insurance void because the duration of the risk was not fixed by. time nor for a voyage between specified ■places? Ordinarily marine contracts of insurance not specifying the duration of the risk either by time or by the places at which the voyage insured is to begin and end, are void for uncertainty. Molloy, Bk 2, chap. 7, § 14; 2 Par. Mar. L., 311; 1 Phil. Ins., § 918; 1 Arn. Mar. Ins., 6th ed., 236; Manly v. United M. & F. Ins. Co., 9 Mass., 85.

The undisputed evidence is that during the season of 1887 the assured had been engaged in forwarding cargoes of Portland ■cement to the contractors engaged in extending the Croton water supply, which were delivered at various points in the upper part ■of the harbor of New York, on the Harlem river, and at Tarry-town. It was the custom of the contractors to direct the assured to load five or six thousand barrels on boats and subsequently designate the places at which they should be unloaded. That in such cases the place of destination could not be entered in the book, and that the words “From New York to harbor” indicates such shipments. The assured also testified that all of these cargoes had been insured through these agents by the defendant under the policy put in evidence and by entries on the book made as in this instance. Under such a practice an insurance on a cargo to be delivered at some place in the same port would not be so indefinite and uncertain as to render the contract void, both parties understanding what was meant by the term. Did the loss •occur in that harbor ? It was competent to receive evidence as to the meaning in the business of insurance of the term, “ Harbor of New York.” Nelson v. Sun Mutual Ins. Co., 71 N. Y., 453, Upon this issue there wa's evidence that the term “Harbor of New York,” as used in the business of marine insurance, included and other within the New York custom house district. Other witnesses testified that the harbor of New York did not extend above Spuyten Duyvil, and did not include Tarry town. This question was submitted to the jury and found for the plaintiff. No available error is presented by the ruling on the. question put to the witness Baker, because he was subsequently permitted to testify as to the meaning of the words “New York to harbor ” and fully as to all facts called for by the question.

It is insisted that the loss was not within the perils insured against. The evidence is that the “Abel” was loaded at the-Anglo-American Stores, Brooklyn, N. Y., October 19, 1887, and left that place at 8 o’clock p. m. of that day in a tow bound for Tarrytown, where it arrived at 1 o’clock the next morning. The; boat was moored alongside of the dock, and when the tide went out it grounded and was so broken or strained that it sank, and. the-cargo was destroyed. It was testified that the boat was seaworthy when laden, which evidence was not disputed. This case, does not fall within the class of cases of which Berwind v. Greenwich Ins. Co., 114 N. Y., 231; 23 St. Rep., 93, is a type. In that, case the boat sprung a leak and sank ‘without any known cause. It was held that this raised a presumption that it was unseaworthy, but that this presumption might have been rebutted by showing that the loss was occasioned by some other cause than the. unseaworthiness of the boat This was precisely what was done, in this case.

Whether the defendant had waived the requirement in the policy, that formal proofs of loss should be furnished within thirty days, and an action brought within twelve months after a loss,, was submitted to the jury and was found for the plaintiff. No point is made by the learned counsel for the appellant that the evidence was insufficient to sustain the verdict on these issues.

But two exceptions were taken to the instructions given by the court, and neither of them was argued by the learned counsel for the appellant.

I think the judgment should be affirmed, with costs.

All concur.

       Affirming32 St. Rep., 965.


source: Caselaw Access Project

author: Brown, J.

license: Public Domain

text:
    Sidney S. Cross, Resp’t, v. The National Fire Ins. Co. of New York City, App’lt.

      (Court of Appeals, Second Division,

      Filed March 8, 1892.)

    1. Insurance (Fire)—Insurable interest.
    One who has agreed for a consideration to take possession of property and care for it, rent it and keep it insured has an insurable interest in it. although he has no legal or equitable title in the land.
    3. Same—Waiver—Knowledge of agent.
    Plaintiff’s son was the general agent of defendant and personally examined the buildings before issuing the policy and knew they were vacant and unoccupied, and had notice of the nature of the title, and the policy described the plaintiff as a trustee. No information was requested of plaintiff and he made no representations to the agent and as there was no-claim of collusion the defendant was bound by the contract even if it was. deceived by its agent as to the condition or title- of the property.

      Appeal from a judgment of the general term of the fifth judicial department, affirming a judgment entered upon the verdict ■of a jury.
    Action upon a policy of insurance against fire issued to the plaintiff as ‘"Trustee.”
    The firm of Daniels & Mack were originally the owners of the insured property. The firm, being insolvent, made a general assignment to John E. Pound, and, subsequently having been adjudicated bankrupts, John T. Joyce was made the assignee in bankruptcy of the individual members of the firm.
    Willard J. Daniels died in 1877, and John Hodge and Howard W. Helmer were administrators of his estate, and, as such, were creditors of Daniels .& Mack in the sum of $20,000.
    In consideration of this indebtedness the assignee aforesaid conveyed the real estate on which the buildings insured were situated to Hodge' and Helmer as administrators, and in May, 1886, said administrators, having substantially settled all matters relating to their trust, and having no property in their possession except said real estate, conveyed it to the plaintiff in trust to sell it within two years for not less than $2,000, and after deducting a commission of five per cent to distribute the proceeds of the sale among the heirs of their intestate, and upon receiving said conveyance plaintiff orally agreed with the administrators to take possession of the property, care for it, rent it and keep it insured. Pursuant to that agreement the insurance in question was effected. Further facts appear in the opinion.

      I. N. Ames, for app’lt; A. K. Potter, for resp’t.

       Affirming 33 St. Rep., 1136.

   Brown, J.

A contract of insurance is intended as an indemnity against an uncertain event which, if it occurs, will cause loss to the assured.

The assured must, therefore, have some interest in or have such a relation to the insured property that he will sustain a loss from the peril insured against; otherwise the policy would be a wager which the law condemns.

The courts of this state are disposed to maintain policies where the assured has an insurable interest, and when that fact appears their validity will be determined by the conditions of the contract.

The party applying for insurance is not bound to disclose the nature or extent of his interest to the insurer unless requested. It may be shown by paroi to exist and the . company must pay its value to the extent of the amount named in the policy. Crowley v. Cohen. 3 B. & Ad., 478; Kernochan v. N. Y. Bowery Ins. Co., 17 N. Y., 428.

The learned counsel for the appellant has argued several interesting questions relating to plaintiff’s title to the land and the effect of the conveyance from the assignee of Daniels & Mack to the administrators and from the administrators to the plaintiff. We do not deem it necessary to consider these questions. With, the distribution of the fund arising from the insurance the defendant has no concern, and it has none with the legal title to the land any further than it may be made applicable to the case by the conditions of the contract. While the policy Contains the-, usual conditions declaring it void if the plaintiff was other than, the sole and unconditional owner or if the buildings were on. ground not owned by the insured in fee simple, or if it should become or remain vacant or unoccupied for ten days, the court held that these conditions were waived and the evidence clearly supported that conclusion.

The plaintiff’s son was the general agent of the defendant and personally examined the buildings before issuing the policy, and knew that they were vacant and unoccupied. He also had notice of the nature of the title and the policy described the plaintiff as-a “trustee.” No information was requested of the plaintiff and he made no representations at all to the agent, and there being no-claim of collusion the defendant was bound by the contract even if it was deceived by its agent as to the condition or title of the-property.

The only -question of importance in the case, therefore, is as to-the plaintiff’s insurable interest. This he could have without any legal or equitable title in the land, and hence it is not important, to discuss the effect of the conveyance referred to.

He had agreed for a consideration to take possession of the- ■ property and care for it, rent it and keep it insured. There was-a possible liability which might arise out of that agreement which created in him an insurable interest to the extent of the value of the buildings, and the case falls within the principle of numerous and well recognized authorities, a few of which are cited. Stilwell v. Staples, 19 N. Y., 401; Waring v. Indemnity F. Ins. Co., 45 id., 606; Sturm v. Atl. M. Ins. Co., 63 id., 77; Kline v. Ins. Co. 7 Hun, 267; 69 N. Y., 614; Berry v. Central Ins. Co., 43 St. Rep., 400, and cases cited.

No other questions require consideration.

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur.


author: Parker, J.

text:
    William A. Schult, App’lt, v. Conrad Moll, Resp't.

      (Court of Appeals, Second Division,

      Filed March 8, 1892.)

    Will—Construction of.
    . The will of oneH., after devising to each of his “daughters” one-third of his real estate, gave “to my wife, Babetta H., one-third, that is-to say, her dower right of my estate.” It also gave a power of sale, and provided that the moneys arising therefrom should be deposited in savings banks until the children arrived at the age of twenty-one, “then they to receive their interest of one-third of the moneys deposited therein,” and devised to the wife the rents and interest during the minority of the children. Babetta was not the lawful wife of testator, but had been the wife of one R., who was still living, and who had procured a divorce-from her with the usual restriction against remarriage. One of the daughters named was the issue of the marriage with R., and the other was bom while testator lived with Babetta. Held, that the devise to Babetta vested in her the fee of an undivided one. third of testator’s real estate, as testator really left no heirs at law, and unless Babetta took a f ee; he died intestate, subject to a life estate, and the law favors a construction which will prevent partial intestacy.

      Appeal from a judgment of the general term of the city court of Brooklyn, affirming a judgment of' the trial term of said court.

      Moffett & Kramer, for app’lt; Jacobs & Butcher, for resp’t

       Affirming 31 St. Rep., 979.

   Parker, J.

The complaint averred the making of a contract for the purchase and sale of lands; the payment of $500 on account of the purchase price by the plaintiff; the failure of the defendant, the other party to the contract, to perform, and demanded judgment for the instalment paid, and the expense incurred in making a search.

The answer admitted the making of the contract; denied performance on plaintiff’s part; alleged ability to perform, and a proffer of performance on the part of the defendant, and demanded judgment that the' contract be specifically performed.

John Hablawitz was formerly the owner of the premises in question. He died February, 1876, leaving a last will and testament, by which he devised his estate as follows: • “ To my adopted daughter, Wilhelmina Hablawitz, one-third of my real estate; to my daughter, Catharine Hablawitz, one-third of my real estate; to my wife, Babetta Hablawitz, one-third, that is to say, her dower right to my estate.”

Whether the defendant’s title is good and marketable depends upon the answer which must be given to this inquiry: * *■ * Did the devise to Babetta vest in her the fee of an undivided one-third of testator’s real estate, or only a life estate therein? How this question comes to be controlling may be briefly stated. Babetta Hablawitz was not the lawful wife of the testator, as she had formerly been married to one John Reinig, who obtained a judgment of absolute divorce against her which contained the usual restriction against her remarriage during the lifetime of Reinig, who was still living at the time of testator’s death.

The testator and Babetta lived together as husband and wife, during which time Catharine Hablawitz was born. Wilhelmina Hablawitz mentioned in the will as the adopted daughter of the testator was the child of John and Babetta Reinig, born in lawful wedlock.

Babetta died, intestate, a few months after the death of John Hablawitz. Catharine died within a year thereafter, aged two years, leaving no -relatives on the father’s side, and only her maternal grand-mother and the half-sister Wilhelmina on her mother’s side.

Subsequently, proceedings were instituted under the statute authorizing the sale of infants’ real estate which resulted ■ in a conveyance of Wilhelmina’s interest in the real estate to this defendant The regularity of these proceedings are not brought in question, so if Babetta acquired under the will the fee of an undivided one-third, upon her death such one-third descended to her daughters Wilhelmina and Catharine, in equal shares, each of whom thereupon became vested With the undivided one-half of such real estate, and upon the death of Catharine her undivided one-half passed to her half-sister Wilhelmina, who thereupon became seized in fee of the whole of said premises. 1 R. S., 753, § 14; Laws 1855, chap. 547; Bollermann v. Blake, 24 Hun, 187.

We are thus brought to a consideration of the question whether by the devise to Babetta she became vested with a fee, or a life estate.

It may be conceded at the outset that the language of the devise standing alone is capable of either construction, and in determining which of the two is required by the will, the court may invoice the aid of the rule which commands that effect shall be given if possible to the manifest intention of a testator. The intention which is to be derived from the language employed in the will may be interpreted in the light of the surrounding circumstances.

It may be observed in the first place that the testator left no heirs at law, and that had he died intestate as to any portion of his estate it would have escheated to the state, and no circumstances are disclosed which would indicate such a desire on his part. That he intended fully to recognize the claims of Babetta, whom he called his wife, upon him is apparent from the general scheme of his will.

Wilhelmina, whom he describes as his adopted daughter, was in no way connected with him by ties of blood, but was the daughter of his wife by her divorced husband, and yet he devises to her one-third of his estate, the same proportion as that given to Catharine, whom he speaks of as his daughter and who was born while testator and Babetta were living together as husband and wife.

There remained yet one-third, and as to it his will continues: “ To my wife Babetta Hablawitz one-third, that is to say, her dower right, of my estate.” In view of the disposition made of the other two-thirds by which he provided for the children of his wife, coupled with the fact that he had no heirs to take lands as to which he should die intestate, it would seem as if he must have intended that she should have the other one-third, which he may have understood to be a wife’s portion. But knowing that she was not his lawful, wife he declares her to be such and characterized the gift in language indicating that he regarded her as sustaining that relation towards him.

That he intended to give Babetta and her daughters his entire-estate has support in the other provisions of the will. After the devise to Babetta the will continues: “ and I give to my wife Babetta Hablawitz, in conjunction with the below named executor, full power to sell and transfer my real estate for the best price they can obtain, and the money received from such sale or sales to be deposited in a savings bank by my wife and the below named executor, until my above named children arrive at the age of twenty-one years, then they receive their interest of one-third of the money deposited therein. And I further devise to my wife the rents and interests of my estate during the minority of my. children.”

It will be observed that he confers upon Babetta, in conjunctian with the executor, a power of sale as to all the real estate of which he died seized, and directs them to deposit the proceeds in a savings bank, until the children reach their majority. Until which time he gives the rents and interest of the entire estate to Babetta.

We have thus referred to the language of the will, and briefly to the surrounding circumstances, which may properly be employed in its interpretation, and they seem to strongly indicate that it was the intention of the testator to vest the fee of an undivided one-third of his real estate in Babetta. One of the facts alluded to has been given prominence in repeated adjudications involving the question of intent. We refer to the fact that if Babetta did not take a fee then as to an undivided one-third of the estate testator died intestate subject to a life estate.

The law favors a construction which will prevent partial intestacy. Redfield, m his work on wills, says: “ The courts have for a long time inclined very decidedly against adopting any construction of wills which would result in partial intestacy unless absolutely forced upon them. This has been done partly as a rule of policy perhaps, but mainly as one calculated to carry into effect the presumed intention of the testator, for the fact of making a will raises a strong presumption against any expectation or desire on the part of the testator of leaving any portion of his estate beyond the operation of his will.” Yol. 2, p. 442.

This proposition has also received attention in Lyman v. Lyman, 22 Hun, 263; Vernon v. Vernon, 53 N. Y., 351-361; Provoost v. Culyer, 62 id., 545, and Byrnes v. Baer, 86 id., 210-218.

If the words “ that is to say, her dower right ” were omitted the devise would unquestionably carry the fee. For the reasons already given the conclusion is reached that they were not employed for the purpose of restricting or cutting down the estate, and the clause should accordingly be read as devising to Babetta the fee of an undivided one-third of testator’s real estate.

As the question presented involves only the construction of a written instrument, no reason suggests itself for refusing to decree specific performance.

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur.


author: Follett, Ch. J.—It

text:
    James M. Johnson et al., App’lts, v. Emily Golder, Impl’d, Resp’t.

      (Court of Appeals, Second Division,

      Filed March 8, 1892.)

    1. Pleading—Demurrer—Redemption of mortgaged premises.
    In this action to redeem mortgaged premises it was alleged in the complaint that plaintiff was seized of the premises subject to a mortgage, which was assigned by mortgagees to him, and he to B., there being due $1,0 0 thereon; that B. foreclosed it. and fraudulently omitted plaintiff as a party, and by perjury obtained a judgment for $5,869; and that on the sale it was bought by defendant, Louisa E. Bates; that she and her husband executed a fraudulent mortgage thereon to defendant Golder, and then conveyed the premises to D., and then on a foreclosure that C. bought them in, and the relief demanded was that defendants account for rents, etc., received largely in excess of the mortgages; that plaintiff be at liberty to redeem, ana that the pretended mortgage be cancelled. A demurrer to the complaint was sustained as to Golder, and the complaint was dismissed on the ground that it did not state facts sufficient to constitute a cause of action. Meld, error, and that by the demurrer Golder admitted the allegations as to rents, and plaintiff was entitled to an accounting.
    2. Same.
    The defect alleged on behalf of Golder was that plaintiff was not a necessary party to the first foreclosure, as it did not appear upon the fact of the complaint that he was the owner of the fee because it was not alleged that Mrs. Johnson, from whom plaintiff acquired the-fee, was then dead. Held, that under the present practice, if a more precise statement was desired, defendant should have moved to have the complaint made more definite and certain.
    Appeal from a judgment of the general term of the city court of Brooklyn, which affirmed a judgment entered on the decision of a special term of that court sustaining the respondent’s demurrer to, and dismissing the complaint on the ground that it does not state facts sufficient to constitute a. cause of action as against her.
    It is .alleged in the complaint that about February 13, 1880, James M. Johnson, one of the plaintiffs, became seized in fee of the premises described in the complaint, subject to a mortgage executed April 27, 1854, by a former owner to secure the payment of $3,300, with interest, on the 27th of April, 1857, which mortgage, it is alleged, was duly assigned November 26, 1859, by the mortgagees to James M. Johnson, who, November 12, 1879, duly assigned it to Henry W. Bates, at which date there was due and unpaid thereon only $1,000. It is also averred that May 19, 1880, Henry W. Bates began an action to foreclose the mortgage and fraudulently omitted to make said Johnson, the owner in fee, a party to the action, and by perjury obtained June 12, 1880, an adjudication that there was then due on the mortgage $5,869.87 and for a sale of the premises, which were thereafter sold under the judgment and were bid in by Bates, who assigned his bid to Alexander B. Crane and Louisa E. Bates (now the wife of Henry W. Bates), and that July 23, 1880, the referee conveyed to them, and that May 10, 1881, Crane conveyed his interest in the premises to Louisa E. Bates.
    It is also averred that- February ■ 10', 1885, Louisa and Henry W. Bates fraudulently executed to Emily Golder a mortgage on tlje premises to secure the payment of $2,500 which was recorded -and became due in 1887; and that February 11, 1885, Mr. and Mrs. Bates fraudulently conveyed the premises to Francis A. Denike, and that thereafter Emily Golder foreclosed her mortgage without making James M. Johnson a party to the action, and July 11, 1889, the premises were sold under the judgment and October 14, 1889, were conveyed by the referee to Samuel F. Cowdrv.
    The plaintiffs also allege -that before this action was begun James M. Johnson conveyed to his co-plaintiff a three-fourths interest in his claim against the defendant, and also that: “ 19. That the said defendants Henry W. Bates, Louisa E. Bates, Emily Gkilder and Samuel F. Cowdry have collected and are collecting the rents for the said premises which amount to the sum of $600 per annum, as plaintiffs are informed and verily believe.” “ 20. That the rents, profits and income of the said premises have been collected and received-by the defendants, and have largely exceeded the amount due upon both mortgages.” A judgment was demanded that the defendants account for all the rents, profits and income received by them, or either of them, and that the plaintiffs be at liberty to redeem upon payment of whatever may be found due, which amount they offered to pay. Among other relief demanded, it was asked that the pretended mortgage made ;o Emily Golder be cancelled and stricken from the records. To this complaint Emily Grolder demurred upon the grounds (1) that two causes óf action were improperly united therein; (2) that as against her it did not state facts sufficient to constitute a cause of action.

      Ira Leo Bamberger, for app’lts; F. H. Cowdrey, for resp’t

       Reversing 81 St. Rep., 410.

   Follett, Ch. J.—It

is urged in behalf of the demurrant that it does not appear upon the face of the complaint that James M. Johnson was the owner of the fee of the mortgaged premises, and a necessary party to the action begun by Bates May 19, 1880, to foreclose the first mortgage, because it is said that it is not alleged that FTanetce Pontau Johnson was then dead. It is averred in the ninth subdivision of the complaint that she died in 1880, leaving a last will and testament, which was duly probated February 13, 1880, under which James M. Johnson, as it is alleged, acquired the fee of the land subject to the amount due upon the mortgage of April 27, 1854, foreclosed by Bates. The death of Mrs. Johnson in 1880 is alleged in positive terms, and the only inference which can be drawn from the averment that the will was probated prior to the date when the first foreclosure action was begun is that the testatrix died before that time, and this is the reasonable and fair inference to be inferred from the allegation. This alleged defect would have been barely a sufficient ground to support a special demurrer under the practice existing prior to the Codes, but under the present practice, if a more precise statement was desired, the defendant should have moved that the complaint in this particular be made more definite and certain. Marie v. Garrison, 83 N. Y., 14; Lorillard v. Clyde, 86 id., 384; Milliken v. W. U. T. Co., 110 id., 403; 18 St. Rep., 328.

The more serious question is whether sufficient facts are stated in the complaint to entitle the plaintiffs to a judgment against the demurrant for a,n accounting. It is alleged that Louisa E. Bates and Henry W., her husband, executed February 10, 1885, a fraudulent mortgage to Emily Grolder for $2,500, which was after-wards foreclosed by her, and that the premises were bid in and conveyed to Samuel F. Cowdrey, one of her attorneys of record in that action. It is also averred that Mrs. Grolder, Henry W. Bates, Louisa E. Bates and Samuel F. Cowdrey have collected the rents of the premises amounting to more than $600 annually which, as alleged, are largely in. excess of the amounts, due on both mortgages. By the demurrer Mrs. Colder admits these allegations, and taken in connection with the other averments in the complaint, we think they state a cause of action for an. accounting against her within the cases hereinbefore cited.

The first ground of demurrer, that two causes of action were improperly united, was not argued by the respondent, and we think that but a. single cause of action is stated in the complaint, to wit. for an accounting and a redemption of the land by the payment of the just claims of the defendants, some of whom are alleged to have acted fraudulently. ■

The judgment of the general and special terms should be reversed, with costs, and leave granted to the respondent to withdraw her demurrer and answer upon the payment of the costs thereof within twenty days.

All concur.


author: Bradley, J.

text:
    Oscar Schmidt, Resp’t, v. Charles H. Reed et al., App'lts.

      (Court of Appeals, Second Division,

      Filed March 8, 1892.)

    1. Vendor and purchaser—Subsequent offer of performance.
    A contract'for the sale of land stated that a mortgage thereon had three years to run, when in fact it was due in a year. Plaintiff declined to receive the deed on learning the fact on the day fixed for completing the sale, although defendants offered to secure him, atd refused to give them a short adjournment in which to procure an extension of the mortgage. Plaintiff also refused eight days after to accept the deed accompanied by such extension. Held, that such subsequent offer of performance-by defendants did not constitute a defense to the action upon the contract, or enti'le defendants to specific performance by plaintiff.
    3. Same.
    Plaintiff was not required in lieu of performance of the contract in respect to the mortgage to accept security against damage. Substituted conditions not in the contemplation of the parties and in any sense substantially modifying the stipulations of the contract cannot without their mutual consent be made effectual to compel performance;
    Appeal from judgment entered on order of the general term of the superior court of the city of New York, entered upon the decision of the special term.
    The action was founded upon the alleged default of the defendants in performance of a contract made by them to.sell and convey to him certajn premises in the city of New York, and to recover a sum advanced by the plaintiff to the defendants upon such contract, also certain expenses incurred by him in examining the title to the property. The defendants,' by way of counterclaim, alleged facts upon which they demanded specific performance of the contract.
    ■ It appears that on October 18, 1888, the parties entered into an agreement whereby the defendants agreed to sell and convey the premises to the plaintiff for $34,000, payable as follows: $500 at its date; $22,500 “by taking said premises subject to a mortgage for that amount (then) a lien thereon bearing interest at five per cent and having five years to run from' November, 1886,” and the balance, $11,500, in cash on closing the title, and the defendants agreed to convey the land to the plaintiff on the 15th day of November, 1888, by warranty deed, free from incumbrance, except such mortgage. It turned out that the time of maturity of the mortgage was not five, years from November 1, 1886, as mentioned in the contract, but was three years from that time. This was the objection of the plaintiff to the completion of the purchase, and at the meeting of the parties on the 15th of November he declined to extend the time to enable the defendants to procure an extension of the time of payment of the mortgage until November, 1891, or to accept security from the plaintiff in that respect.

      William, G. Reddy, for app’lts ; M Reneville, for resp’t.

       Affirming 31 St. Rep., 395.

   Bradley, J.

At the time stipulated by the contract for its performance the parties carne together. The plaintiff was ready to complete the purchase and the defendants had prepared a deed which they proposed to deliver. The plaintiff declined to accept it, because he had learned that the time for the maturity of the mortgage, subject to which the title was to be conveyed, was two years earlier than it was represented to be by the contract This was a mistake of the defendants, without fraud or purpose on then-part to deceive the plaintiff.

The effect of this provision of the contract was that the payment of the principal sum of the mortgage without default in payment of interest should' not be enforceable within five years from November 1, 1886. And this provision could be satisfied by an instrument effectually extending until then the time of its payment. When the parties were together on November 15, 1888, the stipulated time to complete the sale and purchase, the defendants at the time of tendering their deed also tendered to the plaintiff ample security against any possible damage by reason of the mistake in respect to time of the maturity of the mortgage, which was refused by the plaintiff. The defendants also then requests 1 a postponement of the time of performance of the contract for a week or ten days to enable them to obtain and deliver to the plaintiff an instrument of extension of the time of payment of the mortgage corresponding with that mentioned in the contract. This the plaintiff also refused to grant On November 23d, eight days after that meeting of the parties, the defendants, having obtained it from the mortgagee, tendered to the plaintiff a written extension of the time of payment of the principal sum of the mortgage to November 1, 1891, and sufficient money to pay for recording it, with a deed of conveyance of the premises. The plaintiff refused to receive them. He had on the same day and prior to the tender commenced this action by service on the defendant Schmohl, of which the other defendant when he made the tender was not advised.

The question is whether this offer of performance at that time by the defendants constituted a defense to the action and entitled them to specific performance. While at law the" stipulated time of performance of a contract for the sale and conveyance of land is of the essence of the contract, it is not essentially so in equity, and there when the situation of the parties and property remains unchanged relief will not necessarily be defeated by delay. Bnt where there are no circumstances of acquiescence in the delay, reasonable diligence is requisite to such relief. Edgerton v. Peckham, 11 Paige, 352; Hubbell v. Von Schoening, 49 N. Y., 326.

The parties to a contract may, by its terms, make the time'of performance essentially important, and its observance in that respect requisite to relief. Benedict v. Lynch, 1 Johns. Ch., 370. And when that is not so, either of the parties to the contract may, by a reasonable notice to the other - party for that purpose, render the time of performance as of the essence of the contract, and avail himself of forfeiture on default. Myers v. De Mier, 52 N. Y., 647. Time was not necessarily of the essence of the contract in question. But the trial court found that the plaintiff notified the "defendants, on the 12th of November, 1888, that the mortgage would mature on the 1st of November, 1889, and that he would not accept a deed of the premises unless the defendants procured for him, at the time fixed for the passing of the title,-a proper and sufficient extension of the mortgage until November, 1891; and upon that fact the court'determined that such notice made time of the essence of the contract.

It is urged on the part of the plaintiff that the nptice was insufficient for the purpose, in that the defendants were not given by it a reasonable time to procure the extension, and that it was not specific as to the time when the default would be treated by -the plaintiff as a forfeiture of the right to tender performance. The plaintiff did not, until the day the notice was given, ascertain that the time of maturity of the mortgage was other than that stated in the contract. The mortgagee resided in Philadelphia, of which the plaintiff was advised at the meeting of the 15th of November ; and whether the three days was a sufficient or reasonable time to obtain from him the extension before the stipulated time of performance of the contract, .if it was obtainable, was a question of fact, as was also the question whether the defendants had used due diligence to procure it at that time. The court did not find that the defendants were or were not chargeable with loches in that respect. But there was evidence on the part of the plaintiff (contradicted by that on the part of the defendants), to "the effect that the defendants had then made no effort and done nothing to procure the extension of the mortgage. And while the conflicting evidence on that subject cannot be referred to for the predication of errors, it may here, so far as applicable, be considered in support of the conclusion of the trial court. If it appeared by the record- that it contained all the evidence of the trial, it may be that the construction given to the finding before mentioned could be the subject of some criticism, as it does not distinctly appear by the evidence that the time when the extension should be produced was specified. The evidence of the plaintiff’s attorney as there represented, in speaking of the notice given on November 12th, is: “I told him (defendants’ attorney) we should insist on an extension of the time for the payment of the mortgage, else my client would not take title. He said it seemed ridiculous to now ask an extension,” as the mortgage then had a year to run; “ I said I would submit the matter to the plaintiff,” and added that he informed the defendants, or one of them, the -evening of that or the following day that the plaintiff insisted upon extension of the mortgage to November 1, 1891; and that no purpose was expressed on their part to obtain it, but that on the contrary they said they did not expect to get it at that time. It cannot now and upon the record be held that there was not sufficient evidence to warrant the conclusion that the defendants were advised by the plaintiff that his completion of the purchase was dependent upon the production on the 15th of November of -an extension of the time of maturity of the mortgage. It may be that a different question would be presented if it had been found or conclusively established by the evidence that the plaintiff was advised that the purpose or expectation of the defendants was to obtain it. But upon that subject the evidence on the part of the plaintiff (in conflict with that on the part of the defendants) was to the effect that it was then said by the defendants that they would riot apply for an extension, and by their attorney that he had made no effort to get it, and that he had no reason to believe he could obtain it. And the court was by the defendants requested and refused to find “ that the plaintiff was not on or prior to November 15, 1888, induced or caused 'by the defendants to ■believe that the defendants had abandoned the contract and had no intention of carrying out the same.” In view of this evi■denc.e the conclusion was justified that the plaintiff was relieved from the obligation of the contract when the interview of November 15th terminated, if the time of the maturity of the mortgage ■■as incorrectly represented by the contract was a material fact which may have prejudiced the plaintiff. On that subject the court found that at the time of making the contract the plaintiff made special inquiries as to the time the mortgage would mature, and relied upon the representation that it had five years to run from November 1, 1886, and by it was induced to enter into the contract.

It must, therefore, be assumed that the plaintiff' was at liberty to treat it as an essential fact, and to refuse to complete the purchase without the extension to such time. And the court also found that on November 20, 1888, the plaintiff, in ignorance of the fact that the defendants had taken any steps looking to the procurement of an extension of the mortgage, entered into an agreement for the purchase of certain other premises in the city -of New York.

Upon this state of facts, which there was evidence tending to prove, the conclusion of the trial court that the defendants were not entitled to relief from their default was warranted. Nor was the plaintiff required in lieu of performance of the contract in respect to the mortgage to accept security against damage by reason of the maturity of the mortgage at a time two years earlier than that so represented. He was entitled to performance, so far as they were substantial, of the provisions of the contract pursuant to its terms. And substituted conditions not in the contemplation of the parties, and in any sense substantially modifying the stipulations of the contract, cannot without their mutual consent be made effectual to 'compel performance.

Although time may not necessarily be of the essence of a contract for the sale of real estate, it is treated in this state as mate rial in such sense that unreasonable or unexcusable delay of one of the parties to it may deny to him relief; and when during his default or delay circumstances have intervened which will render subsequent performance by the other party prejudicial or detrimental to him, those facts are properly matters of consideration,, and will ordinarily relieve him from the obligation of the contract. Merchants' Bank v. Thomson, 55 N. Y., 7; Day v. Hunt, 112 id., 191; 20 St. Rep., 233; Hubbell v. Von Schoening, 49 N. Y., 326.

While it may be that the evidence would have permitted a different result in the court below, the conclusion there reached was fairly justified, and none of the exceptions were well taken.

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur.


author: Follett, Ch. J.

text:
    Edward Kane, Resp’t, v. The New York, New Haven & Hartford Railroad Co., App’lt.

      (Court of Appeals, Second Division,

      Filed March 8, 1892.)

    1. Negligence—Railroad crossings—Gate.
    Plaintiff, after looking for approaching trains and waiting for a train, saw the gate go up and attempted to cross the track, hut was shut in by the lowering of the gate on the other side and was struck by a train. The train which had passed obstructed plaintiff’s view of the one which inflicted the injury. Held, that under the evidence it was a fair question of fact for the jury to determine whe.ther plaintiff by his own negligence contributed to the injury.
    2. Same—Future damages.
    Evidence that plaintiff could not work since as before the accident, that his hip had been injured and that from the injury to his head his memory had been affected, is sufficient to justify the court in charging the jury that plaintiff was entitled to recover, if defendant was liable, for the pain, that he would endure in the future. «-
    3. Same.
    The whole issue as to defendant’s negligence being with reference to the-management of the gates, and there being no issue or question in respect to ringing a bell, a request to charge that defendant was not bound as a matter of law to ring the bell or sound the whistle is immaterial, and a. refusal to so charge is not error.
    Appeal from a judgment of the general term of the supreme-court of the second judicial department, which affirmed a judgr ment entered on a verdict.

      Henry W. Tafft, for app’lt; John H. Clapp, for resp’t.

       Affirming 31 St. Rep., 741.

   Follett, Ch. J.

The defendant’s railroad runs through the village of Portchester in a northerly and southerly direction, crossing Adee street nearly at right angles and at grade. The passenger station is on the west side of the railroad and south of and a little distance from said street. The crossing is protected on both sides of the railroad by gates, which are lowered when trains are passing and raised when the defendant's gateman deems it safe for teams and footmen to cross the tracks.

On the northerly side of Adee street, and on the easterly side of the railroad there is a mound of rocks fifteen or twenty feet high, but its size is not otherwise described, nor does it appear .how near to the street or railroad these rocks are.

For sometime before the accident about to be described, the plaintiff had been employed as coachman and man of all work by Mr. Berrian, who resided some little distance from the station. At about 6:20 P. M., on the 6th of February, 1889, the plaintiff while on his way to the station, driving in an open buck board wagon, reached a point about forty feet east of the east gate which he found closed, he waited until the east bound train from New Y ark to New Haven passed the crossing, at which time the gates were raised by the gateman and the plaintiff started to cross the tracks for the purpose of going to the station. Before he effected a crossing the gates on both sides of the railroad were lowered so that escape was impossible, and while in this situation he was struck by a west bound train running from New Haven to New York and was quite severely injured. The fact that the gates were raised and lowered as described was not disputed on the ■trial, but the defendant insisted that the gates were raised after the first train- passed by some person not in its service, but this issue was found for the plaintiff, and establishes the negligence of the defendant.

The defendant insisted on the trial and now insists that.the evidence conclusively shows that the plaintiff, had he looked and listened, might have discovered the approaching train and that by not doing so he negligently contributed to his injury. It was •dark at the time of the accident and the gas lights were burning.

The first train which passed just before the gates were raised was running on the easterly track, and the train from New Haven which struck the plaintiff was on the westerly track, so that during the time they were passing each other the train bound easterly -obstructed the plaintiff’s view of the train which inflicted the injury. The engineer of the train testified that the locomotive bell was rung as it approached the crossing. The plaintiff and other witnesses testified that they neither heard nor saw the train until .a moment before the collision. Upon this issue the court at the request of the defendant charged, that (1) Before attempting to cross the track the plaintiff was bound to look and listen, and if by looking and listening he might have seen and heard the train in time to avoid "being struck he cannot recover.” (2) “ That if the east bound train obstructed his view, but it was moving out of his way so that in a short space of time he would have had a clear view of the west bound train approaching, and he without waiting and as soon as the gate was open drove across and in consequence was injured, he was guilty of contributory negligenceana cannot recover.” The defendant now insists that the jury in returning a verdict for the plaintiff violated the plain instructions-of the court It is possible that if the plaintiff had not been, misled by the-action of defendant’s gateman, which was' an invitation to the plaintiff to make the crossing, that he might by the exercise of great vigilance and care have discovered the approaching train in time to have avoided the collision. But it does not. conclusively appear that had he looked when he started to cross-the tracks, that he could have seen the approaching train in time-to have avoided the accident, as it was dark ■ and his view was-obstructed by the east bound train and the mound of rocks. It. is well settled that a traveler approaching a crossing guarded by gates is not required to exercise the same vigilance to look and listen as when he approaches one not so guarded. Rodrian v. N. Y., N. H. & H. R. R. Co., 125 N. Y., 526; 35 St. Rep., 814; Oldenburg v. N. Y. C. & H. R. R. R. Co., 124 N. Y., 414; 36 St. Rep., 402; Palmer v. N. Y. C. & H. R. R. R. Co., 112 N. Y., 234; 20 St. Rep., 908.

Under the evidence in this case it was a fair question of fact for the jury to determine whether the plaintiff by his own negligence contributed to the accident which caused the injury, and we do not think the defendant is in a position to take advantage of instructions which were, perhaps, too favorable to it.

The court charged that the plaintiff was entitled to recover,. “ for the pain that he has endured both present and future, because he cannot maintain any other action hereafter,” to which instruction the defendant’s counsel took the following exception r “I desire to except to your honor’s charge where you say that the plaintiff is entitled to recover for the pain and suffering both present,and future, and I ask your honor to charge that any pain or suffering which he has now or has had in the past by reason of lack of proper medical treatment or care he cannot have pay for.” The court replied: I charge the jury that he has to* recover for the injuries that he has sustained, and that the jury can look to the future as well as to the past, because the plaintiff can maintain no other action.” To this instruction the defendant’s counsel took a general exception.

It is argued on the part of the appellant that these instructions; were erroneous, for the reason that there is no evidence that the-plaintiff would probably suffer pain in future. Upon this issue the plaintiff testified:' “I was able to do anything before the accident. I could do anything before this happened me. Since this accident I cannot do near the work. My head, sometimes; when I am cleaning off the horses my head gets dizzy and I have-to catch hold the stall to keep myself up, and I forget a good deal. My memory is defective. It was good before, and my hip troubles me most of the time in damp weather. It is sore ;; it has the effect upon my power to walk, my ability to walk,, that I cannot walk as good as I used to.”

The plaintiff’s employer testified: “ Since the accident plaintiff is very forgetful. Very recently and quite often I will arrive at the depot and he will take me home, and I find when I reach, home that he was told to tell me to procure something in the village and forgotten all about it. He never was that way prior to the accident. He is unable to do the work that he did before. He cannot do as much by one-half.”

A son of his employer testified: “ Plaintiff was a very good workman; could do anything. Since this accident has occurred I have seen him around the place there. He is not a good workman now, at times he goes lame and he is very forgetful and has. no memory whatever. Prior to this accident he was not forgetful; he had a very good memory.” The defendant called a surgeon,, who testified that he had examined the plaintiff and found a sear-on the back of his head over an inch in length, that his nose was. not straight, and gave evidence of pain on manipulation of his. right hip joint, which seemed neuralgic in character, that on manipulating the hip joint the plaintiff complained of pain and had a. slight contraction of the muscles. That the trouble was in the muscles, and it might be from a contusion. This evidence was sufficient to justify the court in charging the jury that the plaintiff was entitled to recover, if the defendant was liable, for the pain that he would endure in the future. Ho error was committed by the court in submitting the question of damages to the jury. The learned counsel for the defendant requested the court to-charge, “ that the defendant was not bound, as a matter of law, either to ring its bell or blow its whistle,” which was refused, and the defendant’s counsel excepted. Section 7 of chap. 282, Laws 1854, which provides that a bell shall be rung or a whistle-sounded on locomotives for at least eighty rods before crossing a. highway or street, and makes railroad corporations liable for all damages sustained by any person by reason of neglecting this duty,, was repealed by chap. 593, Laws 1886. Lewis v. N. Y., L. E. & W. R. R. Co., 123 N. Y., 496; 34 St. Rep., 373.

The plaintiff in this case did not claim that the defendant washable because of its failure to ring a bell or sound a whistle, but. the sole ground of liability alleged in the complaint and proved on the trial was the mismanagement of the gates. Before this request was made the court had made no allusion to the sounding of the bell or whistle, and it was but incidentally alluded to on the .trial, not as a ground of liability, but as bearing upon the question of whether the plaintiff contributed to his own injury. Whether the bell was rung not having been made an issue on the trial and the defendant’s liability for the injury not being predicated upon the failure to ring a bell or sound a whistle it was not error for the court to refuse to charge as requested.

Rone of the objections to the admissibility of evidence require attention.

The judgment should be affirmed, with costs.

All concur; Landon, J., in result.


author: Martin, J.

text:
    James Snell, App'lt, v. Loretta A. Dale, Ex’rx, etc., of Hannah Dewey, Deceased, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed February 13, 1892.)

    1. Decedent’s estates—Limitation.
    Since tlie amendment of 1883, a publication by the executor of notice requiring the presentation of claims is not necessary to set in motion the short statute of limitations provided for by § 1833.
    43. Same—Waiver.
    Oral negotiations between the parties in relation to a reference, after rejection of a claim, which result in no written agreement, will not constitute a waiver or estop the executor from insisting upon the short statute of limitations.
    (Merwin, J., dissents.)
    Appeal from a judgment, entered in Jefferson county, May 14, 1891, dismissing the complaint, with costs. This action was to recover for board alleged to have been furnished by the appellant to the respondent’s testatrix from June 16th to July 16, 1883, and from November 8, 1883, to January 28, 1884. She died January 28, 1889, leaving a last will and testament,- in which the respondent was named as sole executrix. The will was admitted to probate, and letters testamentary -issued to the respondent May 7, 1889.
    On January 28,1890, the appellant presented to the respondent, as such executrix, the claim which was the basis of this action. On the 12th of February, 1890, the respondent rejected the claim in writing, as follows:

      ■“ To James Swell, Esq. :
    “ You will please take notice that I doubt the justice and validity of your . claim of $50.06 against the estate of Hannah Dewey, deceased, and I hereby reject and dispute the same and offer to refer it, under the statute, to some suitable and proper person as referee, to be appointed by the surrogate.
    “Yours, Mrs. Loretta Dale,

      ■“ Executrix of the last will and testament of Hannah Dewey, deceased.”

    After the rejection of appellant’s claim the attorneys for. the parties had several negotiations in regard to referring it, which were continued from time to time until more than six months after its rejection. On the 12th day of December, 1890, and more .than six months after the claim was rejected, the appellant served upon George -S. Hooker the following offer to refer:
    •“ To George S. Hooker. Esq., Attorney for Loretta Dale, Executrix of Hannah Dewey, Deceased:

    “I hereby offer to refer the within claim to any respectable attorney as referee, of your own selection, whom the surrogate of Jefferson county will approve and who is not disqualified on account of relationship and free from bias, and upon your refusal to so refer for a further reasonable time I shall prosecute such claim by action. Yours, etc.,
    “James Snell,
    “ By W. A. Mims, Ms attorney.

      “December 12, 1890.”
    After the service of this notice, and on the 24th day of January,. 1891, this action was commenced. The respondent set up in his answer the six years statute of limitations and also the short statute of limitations. On the trial, at the close of the appellant’s case, the court held that his claim was' barred by the short statute of limitations, and ordered the complaint dismissed, with costs.

      W. A. Nims, for app’lt; George S. Hooker, for resp’t.
   Martin, J.

The appellant contends that the court erred in holding that the short statute of limitations was a bar to this action, and in dismissing the complaint upon that ground. He contends that in order to set the short statute of limitations running, it was necessary that the executor should publish a notice requiring the presentation of claims; that such, presentation should, be in pursuance thereof, and that the statute does not apply where-such notice has not been published.

Under the Revised Statutes, it was held that this limitation was-applicable only to cases where the presentation and rejection of the claim occurred after the publication of notice requiring creditors to present their claims against the estate. Whitmore v. Foose, 1 Den., 159; Tucker v. Tucker, 4 Keyes, 136.

Under the Code as originally passed, and as it stood until the amendment of 1882, the rule was the same, but the amendment of 1882 was clearly intended to obviate that rule, as that section now provides that where a claim is exhibited to an executor or administrator, either before or after the commencement of the publication of a notice, and he disputes or rejects it, an action thereon will be barred, unless commenced within six months after such dispute or rejection. It was in effect so held in the Matter of Haxtun, 102 N. Y., 157; 1 St Rep., 164. In delivering the opinion of the court in that case Finch, J., said: “Before the amendment of 1882, it was held that the statute did not apply except to claims presented after commencement of publication by the executor of the notice to creditors ( Whitmore v. Foose; Tucker v. Tucker, supra); that to obviate the rule thus established the amendment of 1882 was adopted, inserting the words either before or ’ so as to permit a presentation and effective rejection before publication.” The publication of such a notice is for the protection of the executor dr administrator, and there is no absolute legal obligation to give it at all. Fliess v. Buckley, 90 N. Y., 287.

We are of the opinion.that under the Code, since the amendment of 1882, a publication by the executor of notice, requiring the presentation of claims, is not necessary to set in motion the-limitation provided for by § 1822.

The appellant also contends that if the statute commenced te run upon the rejection of his claim, the respondent has waived his right to insist upon the bar thereof by reason of the oral negotiations which took place between the attorneys for the parties. In other words, he claims that the appellant was estopped by the conduct of her attorney from setting up the bar of this statute.

The most that could possibly be claimed to be established by the evidence in this case is, that after the appellant's claim was rejected by the respondent, there were oral negotiations between the attorneys for the parties, whereby the appellant’s attorney understood that the claim would be referred. A fair .construction of the evidence would hardly justify even that claim. The evidence .shows that the appellant’s attorney was willing to refer and discussed the matter with the respondent’s attorney, who agreed to see his client as to the matter, but failed to do so until more than six months had elapsed, and until after the appellant had offered .in writing to-refer the claim, when the’ respondent’s attorney refused -to refer. ■ .

We-find . nothing in the cases cited by the appellant that would justify us.tm holding that what occurred between the attorneys of the parties amounted to a waiver or estopped the respondent from ■insisting-upon the short statute of limitations. A mere offer to ■refér by an executor after an unqualified refusal to pay will not waive the statute¡ The National Bank of Fishkill v. Speight, 47 N. Y., 668; Comes v. Wilkin, 79 id., 129.

In this case there is no doubt but the appellant’s claim was positively rejected by the respondent more than six months before this action was commenced, and it must have been so understood by the appellant. There was talk between the attorneys •about a referee, but no agreement was consummated. Even if there was an understanding that the matter should be referred, there was no agreement to that effect, either oral or in writing. 'The statute requires such an agreement in writing.

Under the circumstances developed by the evidence in this case, we think the appellant’s claim was barred by the provisions of § 1822, and that the court properly dismissed the complaint.

■ Judgment affirmed, with costs.

Hardin, P. J., concurs; Merwin, J., dissents.


text:
    Abram T. House, App’lt, v. Silas B. Babcock, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed February 13, 1892.)

    Pleading—Complaint.
    The complaint alleged a sale to defendant óf a quantity of hops at a certain price; a payment thereon; a delivery at the time specified but that defendant was not present and did not receive or pay for them; that he had refused to do so; that plaintiff afterwards sold them for the best price he could obtain after giving defendant notice of the sale, and demanded judgment for damages for the difference in price and the expense of caring for the hops and selling them. Feld, that .the complaint stated but one cause of action.
    Appeal from an order of the special term, entered in Oswego county September 21, 1891, upon a motion by the defendant to have the plaintiff’s complaint made more definite and certain, and requiring the plaintiff to set up separately, and number the difierent causes of action stated therein. The order granted provided that within twenty days after service upon the plaintiff’s attorneys of a copy of the order the plaintiff should serve upon the defendant’s attorneys a 'copy of the complaint amended by setting up in the first count thereof a cause of action for breach of contract, and in separate counts thereof any further causes of action which tile plaintiff might have against the defendant, and required the plaintiff to pay ten dollars costs of the motion.

      Reilly & Ludington, for app’lt; Goodelle & Nottingham, for resp’t.
   Martin, J.

It will be seen by a reference to the complaint that it was in substance alleged therein that in November, 1888, the plaintiff sold the defendant 993 pounds of hops at twenty-five •cents a pound; that the defendant paid him five dollars thereon; that the hops were to be delivered at plaintiff’s residence on or before November, 1888, when the remainder of the purchase price was to be paid; that the hops were delivered, but defendant was not present, and did not receive and pay for them; that plaintiff .had requested the defendant to take the hops and pay the purchase price, which he neglected and refused to do; that plaintiff held the hops until January, 1891, when, as the agent of the defendant, he sold them for twelve dollars; that he gave the defendant notice of his intention to sell them, and that he sold them for the best price.he could obtain; that he was damaged in the sum of fifty dollars in caring for said hops and for expenses in selling them; that by reason of the defendant’s failure to perform his contract the plaintiff sustained damage in the sum of $281.25.

On the failure of the purchaser to perform a contract for the sale'of personal property, the. vendor among other remedies may .sell the property, acting as the agent for this purpose of the vendor, and recover the difference between the contract price and the price obtained on such sale. Dustan v. McAndrew, 44 N. Y., 72; Lewis v. Greider, 51 id., 231; Cahen v. Platt, 69 id., 352; Mason v. Decker, 72 id., 599; Porter v. Wormser, 94 id., 442; Sawyer v. Dean, 114 id., 469; 23 St. Rep., 906. The expenses of making such sale, as well as the expenses of preseving and taking care of the property after default and before the sale, together with the difference between the contract and selling price, is the proper measure of damages in such action. Sawyer v. Dean, 114 N. Y., 469; 23 St. Rep., 906; Lewis v. Greider, 51 N. Y., 231.

When we read the complaint in the light of the authorities cited we are unable to discover that it contains more than one cause of action. The action was obviously to recover the difference between the contract price of the hops and the price at which they were sold, together with the expense of taking care of and selling them.

If the order had required, the plaintiff to make this complaint more definite and certain as to the items, or what constituted the fifty dollars claimed as damage in caring for the hops and for expenses in selling them, another question would have arisen.

The order granted required the plaintiff to serve a new complaint setting up in the first count a cause of action for breach of contract, and in separate counts any further causes of action which, he might have against the defendant and to pay the defendant ten dollars costs of that motion. There being but one cause of action stated in the complaint, we think the order was improper and should be reversed.

Order reversed, with ten dollars costs and disbursements.

Hardin, P. J,, and Merwin, J., concur.


text:
    Lida G. Chamberlain, App’lt, v. Allen Chamberlain, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed February 13, 1892.)

    Divorce—Alimony—Amendment of decree.
    After judgment in an action for absolute divorce the judgment can neither be modified nor an order made so as to provide for the care, custody and education of the. children, if not provided for by such judgment, or by changing the provisions of the judgment in that respect.
    Appeal from an order, entered in Broome county, February 4, 1891, denying the plaintiff’s motion for an order directing the decree herein to be so modified as to require the respondent to pay the appellant for the care, support, maintenance and education of the children of their marriage.

      H. S. Williams, for app’lt'; A. D. Wales, for resp't.
   Martin, J.

This action was for divorce. The judgment granted the plaintiff an absolute divorce and the custody of their two infant children. The plaintiff sought, by motion at special term, to obtain an order modifying it so that it should provide for the payment by the defendant to the plaintiff of certain sums for the support, care, maintenance and education of the children.. The plaintiff’s complaint asked for a judgment of divorce and the custody of the children, but contained no prayer for alimony, or for any allowance for such care and maintenance. The special term denied the appellant’s motion upon the sole ground that it. had no authority to grant the relief sought. Thus, the only question before" us is, whether the court possessed the power to order such a modification of the judgment.

It is well settled that the courts of this state have no common law jurisdiction over the subject of divorces, and that their authority is confined to the exercise of such express and incidental powers as are conferred by statute. (Erkenbrach v. Erkenbrach, 96 N. Y., 463.) Therefore, we must seek for authority to modify this judgment, if it exists, in some statute by which the power to. do so was expressly or incidentally conferred. Do the statutes as; they now stand, or as they stood when this judgment was entered,, confer such authority ? This question is dependent for its solution upon the construction of the present statutes relating to this subject, as there has been no change since this action was commenced.

Before the adoption of the last eight chapters of the Code of' Civil Procedure, actions like this were regulated by the provisions, of the Revised Statutes. Section 59, tit. 1, chap. 8, pt. 2 of the Revised Statutes, provided: “ In any suit brought by a married woman for a divorce, or for a separation from her husband, the court in which the same shall be pending may, during the pend-ency of- the cause, or at its final hearing, or afterwards, as occasion may require, make such order as between the parties for the custody, care and education of the children of the marriage as may seem necessary and proper, and may at any time thereafter annul, vary or modify such order.”

Under the provisions of this statute it was held that after a final decree an order might be granted in such an action making provision for the care, custody and education of the children of the marriage, and that there was no distinction in this respect between an action for separation and one for an absolute divorce. Erkenbrach v. Erkenbrach, supra; Washburn v. Catlin, 97 N. Y., 623. That statute was, however, repealed by chapter 245 of the Laws of 1880.

The Code of Civil Procedure now contains the only existing statutes relating to the subject. It is provided by § 1759, subdivision 2, that vrhere the action is brought by the wife, “ The •court may, in the final judgment dissolving the marriage, require the ■defendant to provide suitably for the education and maintenance of the children of the marriage, and for the support of the plaintiff, .as justice requires, having regard to the circumstances of the respective parties.” While § 1771 declares, “ Where an action is brought by either husband or wife, as prescribed in either of the last two articles (being articles 2 and 3, the former relating to an action for divorce, and the latter to an action for separation), the court must, except as otherwise expressly prescribed in those •articles, give, either in the final judgment, or by one or more orders made from time to time before final judgment, such directions as justice requires between the parties, for the custody, care and education of any of the children of the marriage. Where the action was brought, as prescribed in article 3 of this title, the •court may by order, at any time after final judgment, annul, vary, or modify such a direction.”

These sections of the Code are a revision of §§ 45 and 59 ■of title 1, chapter 8, part 2 of the Revised Statutes. Mr. Throop, in his notes to those sections of the Code, states that §§ 45 and 59 have in the revision been so amended as to make them conform to the theory of the decision of the' court of appeals in Kamp v. Kamp (59 N. Y., 212), where it was held that in an action for divorce a vinculo the jurisdiction of the court over the subject-matter of the action and over the parties in all respects as to matters involved in it terminates with the entry of final judgment therein, save for the enforcement or correction of the judgment; that where the action is ]?y the wife, her claim for alimony is to be determined by the situation of herself and husband at the time of making the decree ; that if no provision for her is made therein, it is to be presumed that the court -decided adversely to her claim, and the decree is equally final as if such provision had been made, and that the court has no power on subsequent application showing circumstances thereafter arising to award alimony.

Thus if we rely upon the notes to those sections as evidence of the intent of the amendments, it would seem that it was intended to change the rule as it existed under the former statutes, so that after judgment in an action for an absolute divorce the judgment could neither be modified nor an order made so as to provide for the care, custody and education of the children if not. provided for by such judgment, or by changing the provisions of the judgment in that respect, and by applying to such a case the same rule as formerly existed in regard to alimony for the wife, under the decision of Kamp v. Kamp. This intent is made more manifest by the change made in the language of the statute. The former statute provided that in such an action the court might, during the pendency of the action, at its final hearing, or after-wards, make the order. The statute as it now stands provides, that the court may make such an order before final judgment (§ 1771), and such a provision may also be included in the final judgment (§. 1759, subd. 2). There is now no provision in the statute authorizing the making of such an order after judgment. Thus it becomes quite evident that it was the intention of the legislature to change the statute as stated in Mr. Throop’s notes to the Code. This is rendered more obvious by the last paragraph of § 1771, which provides, where the action is for a separation, that the court may at any time after final judgment vary or modify such direction, but makes no such provision when the action is for a divorce.

It is true that in Wells v. Wells (10 St. Rep., 248), a contrary doctrine was held, biit an examination of that case discloses that the court construed § 1771 as though it expressly provided that an order might be granted in an action for a divorce annulling, varying or modifying a direction as to the care, custody and education of the children contained in a judgment in such actions. It is quite manifest that the fact that the last paragraph of that section is applicable only to an action for a separation, and not to an action for a divorce, escaped the attention of the court. This misapprehension is so apparent from reading the opinion in that case that we do not think it should be followed.

The other cases cited by the appellant were decided under the statute as it existed before the adoption of that portion of the Code which relates to this subject. These considerations lead us to the conclusion that the order appealed from should be affirmed.

Order affirmed, without costs to either .party.

Hardin, P. J., and Merwin, J., concur.


author: Martin, J. Merwin, J.

text:
    Abram Smith, App’lt, v. Almon H. Davis, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed February 13, 1892.)

    1. Execution—Second may be is.sued pending supplementary proceedings.
    A judgment creditor may issue a second execution although proceedings supplementary.to the first are pending, and may pursue both, remedies unless the property acquired by the proceedings or levied on by virtue of the execution indisputably belong to the debtor and is amply sufficient to satisfy the debt;' in which case he may be required to elect .between them.
    3. Same.
    A levy and sale under such execution is not irregular where the property levied upon was not only not in the possession of the receiver, but was claimed by a third party and the receiver made no claim thereto, being in doubt whether the transfer to such person could be successfully assailed.
    Appeal from an order of the Otsego county court, entered January 9, 1890, vacating and setting aside an execution issued herein and the levy thereunder upon the ground that the execution and levy were irregular and void.
    On the 23d of December, 1887, the plaintiff obtained judgment against the defendant before a justice of the peace of the county of Otsego for $201.05 damages and costs. A transcript was duly filed, and judgment docketed in the office of the clerk of Otsego county and an execution issued thereon by the clerk of that county to the sheriff thereof. The execution was returned wholly unsatisfied. Soon after, the plaintiff caused proceedings supplementary to execution to be commenced before the county judge, who appointed M. E. Baldwin referee to take the evidence therein, and an examination was duly had. Afterwards, and on the 26th day of January, 1889, M. E. Baldwin was duly appointed receiver of the property of the judgment debtor, and duly qualified and entered' upon the duties of his office. On October 26, 1889, the plaintiff caused another execution on the same judgment to be issued against the property of the defendant, which was delivered to the sheriff, who, by virtue thereof, levied upon certain personal property as the property of the defendant. He afterwards advertised a portion of said property for sale. The property levied upon was in the possession of the defendant when the receiver was appointed. The property thus levied upon had been formerly owned by the defendant, but he had transferred it to other parties previous to the institution of the proceedings supplementary to execution. The receiver never took possession of any of such property or made any demand for the same and did not attack the transfer of the property for the reason, as stated in his affidavit, that he had not been directed so to do by the judgment creditor, and for the further reason that he regarded it doubtful if the transfer could be successfully assailed. The receiver was about to apply for his discharge when this motion was made. After the property mentioned was levied upon, the officer making such levy was sued by the daughter of the judgment debtor, who claimed to be the owner thereof, which action was pending when this motion was made.

      J. B. Holmes, for app’lt; L. J. Barnes, for resp’t
   Martin, J.

The only question involved on this appeal is, whether, after proceeedings supplementary to execution had been instituted and a receiver appointed therein, who had qualified, the issuing of another or second execution and a levy under- it was irregular and void, because made before . the receiver was discharged.

The institution of supplementary proceedings after return of execution against property does not preclude the issuing of another execution upon the same judgment. The two proceedings-having the same object in view, the collection of the judgment, may be pursued concurrently. (Smith v. Mahony, 3 Daly, 285; Gates v. Young, 17 W. Dig., 551.) Nor will the proceedings be superseded by the issue of a second execution, unless it clearly appears that the property levied upon indisputably belongs to the debtor and. is abundantly sufficient to satisfy the debt, and then the creditor may be compelled to elect between the execution and the proceedings. Fellerman's Case, 2 Abb., 155; 1 How., 528, Fargueharson v. Kimball, 18 How., 33; 9 Abb., 385, note; Hanson v. Tripler, 1 Code R. (N. S.), 154; 3 Sandford, 733; Owen v. Dupignac, 9 Abb., 180; Conway v. Hitchins, 9 Barb., 378.

Under these authorities it would seem that the plaintiff was authorized to issue the second execution in this case; although proceedings supplementary to execution had been instituted and were-then pending, and that as these remedies were concurrent, the: plaintiff might pursue either or both, unless the property acquired by the supplementary proceedings, or levied upon by virtue of the execution, indisputably belonged to the debtor and was amply sufficient to satisfy the debt, and that in that case he could be compelled to elect between the two proceedings. We think the-plaintiff had the right to have the second execution issued, and as there was a question as to the ownership of the property levied upon, the appellant was not required to elect between the two-remedies. !

But it is said that by operation of law the receiver upon his-appointment» became vested with the title to the property of the judgment debtor, and a levy upon any such property or sale of it. in pursuance thereof would be irregular and void. The case of Walling v. Miller (108 N. Y., 173; 13 St. Rep., 93), is relied upon, to sustain that claim. We think that case is clearly distinguishable from the case at bar. In that case the receiver, who was-appointed in an action in the supreme court and not in proceedings supplementary to execution, was in possession of the property when it was sold by the sheriff, and it was held that the sale was illegal and void. In this case, however, the receiver was not only not in possession of the property .levied upon, but his affidavit shows that he did not claim any right or interest-in it

It was claimed by a third person under a transfer that he did not propose to attack, for the reason that he had not been directed by the judgment debtor to do so, and because he regarded it doubtful if it could be successfully assailed. Moreover, he regarded his duties as receiver practically at an end and was about to apply for his discharge. In Varnum v. Hart, (119 N. Y., 108; 28 St. Rep., 262), it was held, that -where a sheriff was in possession of property, a sale., thereof by him while the property was in-his possession but after the appointment of a receiver was not void,. but, at most, irregular, and that the case of Walling v. Miller was distinguishable from that case.

We need not now consider or decide the question whether the „ plaintiff should have obtained consent of the court before selling the property levied upon under the second execution, but under the circumstances disclosed by the papers used on this motion we think the issuing of the execution was authorized, and the learned county judge erred in vacating and setting it aside, and in setting aside the levy of the sheriff under it Therefore, the order should be reversed.

Order reversed, with ten dollars costs and disbursements.

Hardin, P. J., concurs.

Merwin, J.

I favor reversal upon the ground that it was not shown that the property levied upon under the second execution was owned by the defendant at. the commencement of the supplementary proceedings.


text:
    David C. Barnard, Resp’t, v. The Press Publishing Co., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 13, 1892.)

    Libel—Pleading—Innuendoes.
    Where the words of an alleged' libel are ambiguous and if used in a particular sense may be defamatory, the question whether they_ were so used is for the jury, and innuendoes are proper to show the latent injurious meaning, and should not be stricken from the complaint.
    ■ Appeal from an order, entered in Chemung county, September, 1891, denying in part the defendant’s motion to strike out certain portions of the plaintiff’s complaint. The order, so far as the appellant complains, refused to strike out the in endoes contained in the plaintiff’s complaint

      John B. Joslyn, for resp’t; J. M. Keatings, for opp t.
   Martin, J.

The only question on this appeal is whether the special term erred in not striking from the complaint the innuendoes averring the meaning which the plaintiff claims should be attached to the words alleged to have been published by the appellant Whenever a defendant’s words are capable both of a harmless and injurious meaning, it will be a question for the jury to decide which meaning the hearers or readers would on the occasion have reasonably given to the words, and an innuendo is essential to show the latent, injurious meaning. Odgérs on Libel <& Slander, m. p. 112. ■

“ If the words are capable of the meaning ascribed to them, however improbable it may appear that such was the meaning conveyed, it is properly the province of the jury to say whether they were in fact so understood.” Newell on Defamation, 619 ; Woodruff v. Bradstreet Co., 116 N. Y., 220; 26 St. Rep., 523.

The defendant is in no way embarrassed by the presence of the innuendoes in the complaint. In fact, it is an advantage to him. He can deny that he spoke the words, or he can admit that he spoke them, but deny that they convey that meaning. Newell "on Defamation, 628. .

In this case the words alleged were, perhaps, somewhat ambiguous in their import, or may permit of more than One interpretation, and if used in a particular, sense may be defamatory. The question whether they were used in that sense would be for a jury, and innuendoes were proper to state the sense in which they were claimed to have been used.

We find no error in the order appealed from requiring a reversal.

Order affirmed, with ten dollars costs and disbursements.

Hardin, P. J., concurs.

Merwin, J.—I think the order should be affirmed.


text:
    Julius A. Schorn, Resp’t, v. Charles A. Berry, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 13, 1892.)

    1. Pleading—‘Relevancy of allegations.
    The true test of relevancy is to inquire whether the averments tend to constitute a cause of action or defense. If they do, they are not irrelevant.
    2. Same—Criminal conversation.
    In an action for criminal conversation, allegations that the plaintiff com mitted adultery with other persons after his marriage, and consented to» his wife’s adultery, tend to constitute at least a partial defense, and are not irrelevant.
    Appeal from an order, entered in Chenango county, July, 1891, striking put certain portions of the defendant’s answer as irrelevant,, redundant and scandalous.

      W. 0. Moulton, for resp’t; Qeorge W. Ray, for app’lt.
   Martin, J.

This action was to recover damages for an alleged alienation of the affections of the plaintiff’s wife. Among other-allegations contained in the answer was the following: “ That on divers and different occasions during the years 1886, 1887, 1888,. 1889 and 1890, the plaintiff had carnal and criminal connection, and intercourse with his servant girls and with other females, and bragged and boasted of the same to the said Clara Schorn, his: said wife, and importuned his said wife to have intercourse with other men.” This portion of the answer was stricken out as irrelevant, redundant and scandalous, and from that portion of the-order the defendant appealed.

If this matter was proper to be pleaded for any purpose, or if it-would affect the question of damages or go in mitigation of the amount of damages, it was not irrelevant. The true test of relevancy is to inquire whether the averments tend to constitute-a cause of action or defense. If they do, they áre not irrelevant. 1 Rumsey’s Pr., 299, el seq.

In an action for criminal conversation if the husband consents to his wife’s adultery it is a bar to the action, whether the consent be general by giving a general license to his wife to conduct herself as she pleased with men generally, or by assenting to thepartieular act of adultery charged. Winter v. Henn, (4 C. & P. 498); Bunnell v. Greathead, (49 Barb., 106); Norris v. Norris, (30 L. J. M., 111); Cibber v. Sloper, (cited 4 T. R., 655); Sanborn, v. Neilson, (4 N. H., 501); Cook v. Wood (30 Ga., 891).

In an action of this character the defendant may show the plaintiffs carnal connection with other women at any time after his-marriage and before trial in mitigation of damages. Smith v. Masten (15 Wend., 270); Shattuck v. Hammond (46 Vt., 466); Rea v. Tucker, (51 Ill., 110); Sanborn v. Neilson (supra).

The matter contained in the portion of the answer stricken out was alleged both as a defense and in mitigation of damages. It in effect alleged that the plaintiff committed adultery with other ■ persons after his marriage and before trial, and that he consented, to his wife’s adultery. If the facts alleged could be established they would constitute a full or at least a partial defense to the action. We think the defendant had a right to plead the matters-stricken out, and that the court erred in granting the order appealed from. °

Order reversed, with ten dollars costs and disbursements.

Hardin, P. J., and Merwin, J., concur.


text:
    Martin Dunlap, Resp’t, v. William Ross, Sr., and William Ross, Jr., App’lts.

      Supreme Court, General Term, Fourth Department,

      Filed February 13, 1892.)

    Assault—Damages.
    In an action for assault the jury, on conflicting evidence, found a verdict in favor of plaintiff for $100. It was claimed to he excessive, as plaintiff came out of the fight with a black eye only. Held, that the question was one for the jury to determine, and that this court would not interfere.
    Appeal from a judgment for $224.37 damages and costs, entered in Jefferson county March 20, 1891, on the verdict of a jury, and from an order denying a motion for a new trial.

      Thomas F. Kearns, for app’lts; Breen Brothers, for resp’t
   Martin, J.

This action was for an assault and battery. The respondent was awarded $100 damages. The appellants contend that the evidence was insufficient to justify a verdict for that amount. Their claim is, that the plaintiff “ came out of the fight with a black eye only,” and, hence, that the damages were excessive.

The difficulties with this claim are two-fold: 1. The jury under the evidence may have found that the plaintiff did not escape with the injury mentioned, but that his injuries were of a much more serious character. 2. If the injury sustained was that indicated by “ a black eye only,” still the amount of damages in such a case would be for the jury, and we know of no rule that, would justify us in holding that $100 was excessive even in such a case.

The evidence presented a fair question of fact Upon that evidence the jury found .for the plaintiff and awarded him as damages the amount named. The verdict should not be disturbed' either upon the ground that it was against the weight of the evidence, or that the damages were excessive.

We have examined the several rulings to which our attention has been called by the brief of the counsel for the appellants, but have found none that would justify a reversal of the judgment or that require special discussion.

Judgment and order affirmed, with costs.

Hardin, P. J., and Merwin, J., concur.