text:
    THE AMERICAN EXCHANGE NATIONAL BANK, Plaintiff, v. STEVENS VOISIN, Defendant.

      Attachment — when statements in an affidavit will he ’presumed to he made on the actual, knowledge of the deponent — service of the summons need not precede the - issuing of an attachment.

    An attachment was issued in this action upon an affidavit made hy the plaintiff’s cashier, which stated, among other things, that the plaintiff did, on September, 1886, advance and loan to the defendant the sum of $5,500, no part of which had been paid, and that said sum was then justly due and owing to the plaintiff from the defendant, over and above all counter-claims known to the plaintiff.

      Meld, that as the affidavit was made by the cashier, who was the plaintiff’s chief fiscai officer, it might be presumed, from the tenor of the affidavit, that he had actual knowledge of the facts, which were stated in positive terms. (Pomeroy v. Ricketts (27 Hun, 242); Smith v. Davis (29 id., 306); Reilly v. Sisson (31 id , 572); Walts r. Nichols (32 id., 276); Marine National Bank v. Ward (35 id., 895), distinguished.

      That, as no specified period of credit was stated it might be presumed that the loan became due at the time when the affidavit was sworn to, which was on October 9, 1886.
    While section 635 of the Code of Civil Procedure requires an attachment to he issued in an action, it does not require it to be preceded by the service of the summons, but is fully satisfied when the summons has been made out and is in a condition to accompany the service of the attachment.

      Partridge v. Brown (19 Weekly Dig., 434) distinguished.
    Appeal by Amory A. Lawrence and others as subsequent attaching creditors from an order denying a motion to vacate an attachment issued on the 9th of October, 1886, in favor of the plaintiff and against the defendant.

      Adams <& Boothlnj, for attaching creditors, appellants.

      L. B. Bunnell, for plaintiff and respondent.
   Daniels, J.:

One of the affidavits on which the first attachment was issued contained the statement that “ plaintiff has or is about to commence an action against the defendant, to recover the above-mentioned loan and the summons is annexed hereto.”

That statement is relied upon as exhibiting the fact that the plaintiff was not entitled to the attachment at the time when it was issued. But while it is true that by section 635 of the Code of Civil Procedure the attachment is to be issued in an action, it has not been required to be preceded by the service of the summons; but on the contrary it may, under the authority of section 638 of the same Code, be made to accompany the summons, or be issued at any time after the commencement of the action and before final judgment. This clause in the affidavit brought the ease within this section of the Code, for it proved the fact to be that the summons had been made out and was ready for service and being attached to the affidavit, was made a part of the application for the attachment; and the attachment being issued in that manner, it accompanied the summons within the strict signification of 'this phraseology, as it has been employed in this section of the Code. And this construction is maintained by the further provision of the same section that service of the summons must be made upon the defendant, or an order of publication obtained, within thirty days after the warrant of attachment is granted. And these two provisions entirely overcome the force of the argument made, from the language contained in section 635, that the summons as a matter of fact must be issued or served before an action can exist in which an attachment may be allowed. That is not the effect of this section. It requires no actual commencement of the action before an attachment may be issued, but that it shall be issued only in what shall in form be an action by one party against another. This requirement is fully satisfied when the summons has been made out and is in a condition to accompany the service of the attachment. And no authority has been found which is inconsistent with this construction.

In the case of Partridge v. Brown (19 Weekly Nig. 434), the facts now made to appear were .not presented. For the affidavit evidently failed to show compliance with these sections of the Code, while here the statement is entirely ample for this object.

This affidavit was made by the cashier of the bank, and it states the fact that the bank advanced and loaned to the defendant the sum of $5,500 on the 16th of September, 1886, no part of which had been paid, and that this amount, together with $2,237.92 overdrawn by him, was justly due and owing to the plaintiff from the defendant, over and above all counter-claims known to- it. This affidavit, very essentially, differs from that held not to- be sufficient in Pomeroy v. Ricketts (27 Hun, 242), and Smith v. Davis (29 Hun, 306), for in the former case it was not stated, as a matter of fact, that any goods or' merchandise had been sold or delivered, while in the latter case the affidavit contained no more than a recital of a sale. They were each inferior, in their effect as-evidence, to the affidavit made by the cashier upon which this statement was issued, while in Reilly v. Sisson (31 Hun, 572), the indebtedness did not appear to have matured, and in Walts v. Nichols (32 Hun, 276), the right to nominal damages- only appeared from the affidavit. In the Marine National Bank v. Ward (35 Hun, 395), the affidavit was not made by any person either appearing to have, or who it could be presumed had,, knowledge of the existence of the indebtedness, or of the facts out of which it might have arisen, while in the present instance it was made by the cashier who was the fiscal officer of the plaintiff and within the line of whose duties its loans and overdrafts would, in the usual course of business, be made. He may be presumed, therefore, from the tenor of the affidavit made by him to have had actual knowledge of the facts, which he has stated in positive terms, authenticating the loan of the money. And as no specified period of credit has been stated, the loan may be presumed to have become due at the time when the affidavit was sworn to, which was the 9th of October, 1886.

The other affidavit, on which the attachment was founded, disclosed a state of facts from which it could well be inferred, as the fact was there stated by the cashier, that the defendant had departed from the State with intent to defraud his creditors, or to avoid the service of a summons,, or kept himself concealed within the State with that intent. And upon that fact, as an indebtedness was shown to have existed over and above all counter-claims, an attachment has been authorized under subdivision 2 of section 636 of the Code of Civil Procedure. And this, though briefly stated, was disclosed by the recital in the attachment in such language as to indicate it to have been the ground upon which the attachment was issued. Whether there was a substantial difference between the amount of the indebtedness mentioned in the attachment, and the statement made of it in the summons, cannot be determined, for the reason that the summons itself has not been made apart of the papers on the appeal. But even if there were such difference, as.the indebtedness is stated to be at a less amount in the attachment than was demanded in the summons, it would afford no ground for setting aside the attachment, for the defendant could not be prejudiced by the fact if it existed; it would, on the contrary, be an advantage to him; for * the sheriff, under the attachment, could take no more of his property tüan would satisfy the amount mentioned in the attachment, with interest, costs and expenses. The other objections which have been urged in support of the appeal are still less entitled to be sustained. They are devoid of merit, being quite formal in their character, and require no further consideration for the disposition of the case.

The order appealed from was right and it should be affirmed, but as the affidavits have not been drawn with that care and particularity which should have been observed in so important a case, it should be without costs.

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

Order affirmed, without costs.


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    MARTHA WILSON, Respondent, v. CLARENCE W. FOWLER, Appellant.

      The court may strike out a counter-claim for a failure of the defendant to comply with an order for a hill of particulars.

    Under tlie present practice the court has power to insert in an order — directing the defendant to serve a further bill of particulars, specifying the nature of the services performed hy the defendant for the plaintiff, which are alleged in his answer hy way of a counter-claim to the action — a provision directing that if he fails to comply with such direction, so much of the answer as contains the counter-claim shall be stricken out.

      Gross v. Glwrk (87 hi. If., 272) followed.
    Appeal from an order directing the defendant to serve a further bill of particulars or that the first counter-claim set forth in his answer should be dismissed.

      William II. Van Cott, for the appellant.

      David McClure, for the respondent.
   Daniels, J.:

The order from which the appeal has been taken was preceded by another order made on notice to, and after the hearing of, counsel for the parties, directing the service on the part of the defendant of a bill of particulars, specifying the nature of the work, labor and services performed by the defendant in buying and selling stocks, and attending to the business of the plaintiff, and the dates of such alleged services, and the kind of stocks purchased, as those facts had been alleged by way of counter-claim in the action. Under this order a very general statement was served containing no more than a substantial repetition of the answer itself. It was no such statement as the order required to be made, and the order from which the appeal has been taken has directed no more to be done by the defendant than to comply with this preceding order by giving the name and kind of stocks alleged to have been purchased by the ■ defendant for the plaintiff. It was fully warranted by the first order which remained in full force at the time when the application was made and heard for the second order.

But assuming this to have been the effect of the first order, and that it was so far conclusive upon the defendant while ic remained in force, it has been urged that the court was without authority to direct, as it did by the final order, the defendant’s answer containing this counter-claim to be stricken out, if he failed to comply with the direction for the service of a further bill of particulars. The power to make such an order striking out a complaint was considered in Gross v. Clark (87 N. Y., 272), and it was held by the Court of Appeals that the court making the order under the practice, which has not been abrogated by the Code of Civil Procedure, had the power to direct it to be stricken out, for the failure to serve a bill of particulars, when that should be ordered to be done by the court, and having that power it would seem to be as applicable to the case of so much of an answer as contains a counter-claim, as it was there held to be to the complaint. For such an answer is in its legal effect a complaint setting up a cause of action existing in favor of the defendant against the plaintiff. As the former may be stricken out for the disobedience of an order directing the service of a bill of particulars, it follows that a like disposition may be made of an answer under an order relating to a counter-claim.

The order made should, therefore, be affirmed, together with ten dollars costs as well as the disbursements.

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

Order affirmed, with ten dollar’s costs and disbursements.


author: Bartlett, J.:

text:
    CORNELIUS L. KINGSLAND and Others, as Executors, etc., of AMBROSE C. KINGSLAND, Deceased, and Individually, Appellants, v. CLARENCE. TUCKER and ARTHUR C. TUCKER, as Executors, etc., of GEORGE W. TUCKER, Deceased, Respondents.

      Agreement for the erection, of a pwrty-waXl — what will he deemed a use of the wall.

    In 1867 one Tucker, the owner of a lot known as No. 12 White street, entered into an agreement with the owners of the adjoining lot, known as No. 14, concerning the erection of a party-wall to be erected by the owners of No. 14, partly on their lot and partly on Tucker’s; this agreement provided among other things, that Tucker might use the wall for the support of the beams of his building then standing on his lot, but that whenever he, or his heirs or assigns, should “make use of the same in the erection of any new building to be constructed on lot No. 12 White street,” he or they should pay to the owners of the adjoining lot, their heirs or assigns, one equal half of the value thereof at the time of using it. In 1883 an application, made by the executors of Tucker to the bureau of inspection of buildings, for permission to put up a store on the said lot sixty-six feet high, with walls only twelve inches thick, was at first refused, but subsequently granted upon the agreement of the executors “to line” up the party-wall, that is to say, to build the wall cf their new building close to the party-wall so as virtually to increase the thickness of the latter.
    Upon the trial of this action, brought to compel the defendants, the executors of Tucker, to pay one-lialf of the value of the party-wall, they denied that they made any use of the party-wall whatsoever, and alleged that they had built an independent wall, without anchoring or tying it to the party-wall, although the permit under which it was built required that it should be, to some extent, dependent upon a pre-existing structure, and practically an addition to it. .

      Held,, that it was not necessary, to constitute a “use” of the wall within the meaning of that term as used in the agreement, that the wall of the new building should be tied or anchored to the party-wall, and be lined up to it at all points.
    That as the evidence showed that the lateral support which the new wall received from the party-wall, at various points and places where the two structures came into contact, contributed materially to the strength, stability and safety of the wall of the defendants, they did “ make use of ” it in the erection of their building, within the meaning of that phrase as employed in the agreement, and that the referee erred in holding that they did not.
    Appeal from a judgment in favor of the defendants entered upon the report of a referee.

      Albert Stickney, for the appellants.

      Sidney S. Harris, for the respondents.
   Bartlett, J.:

This appeal presents a simple but interesting question. In 1867 George W. Tucker owned the lot known as No. 12 White street, in the city of New York, and Ambrose C. Kingsland, George L. Kingsland and Ambrose O. Kingsland, Jr, owned the adjoining lot known as No. 1J. On April 12, 1867, the respective owners entered into an agreement concerning the erection of a party-wall by the Messrs. Kingsland, partly on their lot and partly on Mr. Tucker’s. Among other things this contract provided that Mr. Tucker might use the wall for the support of the beams of his building, then standing on his lot, but that whenever he or his heirs or assigns should “ make use of the same in the erection of any new building to be constructed on lot No. 12 White street,” he or they should pay to the Messrs. Kingsland, their heirs or assigns, one equal half of the value thereof at' the time of using it.

The party-wall was built under this agreement. In 1883, the defendants, who are executors under the will o£ George W. Tucker, erected a new building on the lot No. 12, adjoining the lot of the Messrs. Kingsland, and next to the party-wall, and the question which arises in the present case is whether in so doing they made use of the party-wall within the true meaning and intent of the clause in the contract above quoted. The plaintiffs insist that use was made of the wall by the defendants in the erection of the new building, and bring this suit to recover half the value of the wall as determined by arbitrators. The defendants deny that they made any use of the party-wall whatsoever; The referee before whom the cause was.tried found in favor of the defendants, and from the judgment entered on his report the plaintiffs now appeal.

It appears from the evidence in the case that the defendants originally applied to the bureau of inspection of buildings for permission to put up a store sixty-six feet high, with walls only twelve inches thick, and that permission was refused because the proposed wall was too thin. The application was then modified by a proposition in behalf of the defendants to “line up” the party-wall; that is to say, to build the wall of their new building close to the party-wall, so as virtually to increase the thickness of the latter. This is the interpretation put upon the phrase by the official examiner who inspected the party-wall under the direction of the inspector of buildings in order to ascertain its condition. Upon a favorable report from him the modified application was finally granted, and the defendants, in the language of the learned referee, were enabled to build a thinner wall by reason of the party-wall being there than the department would otherwise have allowed.”

The defendants do not profess to have kept their engagement, express or implied, with the bureau of inspection of buildings, to line up the party-wall in building their own. Their position is that it proved impracticable to do this, because the party-wall was out of plumb. They built their own wall, they say, independently •without anchoring it or tying it to the party-wall. In other words, according to the case as presented in their behalf, they built an independent wall, thinner than would otherwise have been tolerated, under a permit which authorized only the erection of a wall which should be dependent to some extent upon a pre-existing structure, and practically an addition to it. This is a matter, however, with which they contend the plaintiffs have nothing to do. They deny any liability on their part, unless it is proved that they have made a substantial use of the party-wall in putting up their new building and not merely a constructive use.

Whatever judgment ought to be pronounced upon the action of ■ the defendants, in the domain of ethics, we are disposed to agree with them that the contract contemplates an actual, physical use of the party-wall. If, in order to constitute a substantial use of this nature, it was necessary that the wall of their new building should be tied or anchored to the party-wall, and should “ line up ” the latter at all points, the referee was clearly right in his conclusion that no use was established by the proof in the case. If less than this would suffice, however, there is given reason to doubt the correctness of the result he reached.

On their direct examinrtion, the witnesses called in behalf of the defendants testified strongly to facts tending to show that the new wall was wholly independent of the party-wall, but this testimony was much weakened by their statements when cross-examined. Thus the contractor for the mason work admitted that the rear of the new wall touched the party-wall almost all the way up ; while the foreman said the front touched it to the same extent. The latter witness described the party-wall as irregular, overhanging in some places and receding in others. The walls came together at the places where it overhung, and the greatest distance between them at any point where the party wall receded was estimated by this witness at three inches. The testimony of the principal contractor was to the same effect. Moreover it appeared that there were projections of brick work from considerable portions of the surface of the party-wall which had to be cut away to make room for the defendants’ wall as it rose, and at these places of course the walls came into contact.

Even if we look only at the evidence in behalf of the defendants, supplemented by the observations of the referee who made a personal inspection of the premises, there is enough in the case to leave no doubt that there are long lines and extensive areas of contact between these walls. Notwithstanding this fact, the referee refused to find that the party-wall afforded any lateral'support to the new wall. He appears to have based this refusal upon the ground that even if the defendants did avail themselves of the preexisting party-wall for purposes of lateral support, to do so would not be to “ make use ” of the party-wall; for he expi-essly says in his opinion that such could not have been the intent of the agreement. "We are unable to concur in this view. If the defendants had built their new wall of Such a thickness that it could safely stand alone, it might well be that the fact that it derived additional strength from the proximity of the party-wall and contact therewith would not establish a substantial use of the latter, since the lateral support iff that case would be wholly needless and would add nothing to the value of the new wall. Here, however, it must be presumed that the defendants’wall of less than the thickness prescribed for an independant structure was unsafe unless built in contact with "the party-wall. This inference is fully warranted by the action of the bureau of inspection of buildings, and the assent of the defendants to the propriety of the requirement that they should “ line up ” the party-wall as a condition of making their own wall only twelve inches thick. It is true they failed to comply with this condition, and by omitting to “ line up ” the party-wall deprived their own of the full measure of support and strength it would have acquired by contact with the party-wall throughout its whole extent. But because the new wall did not receive all the lateral support designed by the inspector of buildings, it does not follow that it did not receive any. One of the defendants’ witnesses did, indeed, swear that if the plaintiff’s building, of which the party-wall forms one side, should fall down, it would not hurt the new building of the defendants, but even he does not say that the twelve-inch wall would in that event remain as strong and stable as it is now. We find it impossible to believe that it would. Oa the contrary, the evidence convinces ns that the lateral support which the new wall receives from the party wall, at the various points and places where the two' structures come into contact, contributes materially to the strength, stability and safety of the wall of the defendants; and hence that they did “ make use ” of the party-wall in the erection of their new building, within the meaning of that phrase, as employed in the party-wall agreement.

It follows that the judgment appealed from must ” be reversed upon the facts and a new trial must be granted, with costs to abide the event.

Brady and Daniels, JJ., concurred.

Judgment reversea, new trial granted, costs to abide event.


author: Macomber, J.:

text:
    HARLIN J. WOODWARD, by FRANK E. SMITH, his Guardian, Appellant, v. JULIA L. JAMES, Individually and as Executrix, etc., of FREDERICK P. JAMES, Deceased, Respondents and Appellants.

      Will--when a trust win be created by implication — when collateral devisees take per stirpes and not per Gapita — when a grmd-nephew cannot take personal property under a gift to the testator's legal heirs.

    Frederick P. James, who died leaving him surviving a widow, one brother and two sisters, nephews, nieces and a grand-nephew, left a will by which he gave and bequeathed to his wife, for her sole use, enjoyment and benefit during her life, without restraint, deduction or interference in any manner, one-half the income of all his property, the use, enjoyment, rental and occupation of two residences belonging to him, and also gave to her, absolutely, all his household furniture, pictures, etc. He gave, devised and bequeathed to his “ legal heirs ” the remainder of the income from his property during the life of the wife, after payment of all charges, and the reversion and ownership of all his estate and property, after the death of his wife, with the reservation, exception and direction that in the event of any of his legal heirs making any attempt, directly or indirectly, in any form, to interfere with or restrain in any manner his wife from the full enjoyment, use, management, direction and disposition of the property and income of his estate as therein devised, then such legal heirs should be forever debarred from any part or interest or inheritance in any part of the property, and should he excluded therefrom. He appointed his wife executrix.

      Held, that a valid trust was created by the will for the life of the wife, which authorized her to receive the rents, issues and profits of the estate, and apply the same as directed in the will.
    That the collateral relatives took per stirpes and not per capita.

    That the plaintiff, a grand-nephew, was not entitled to share in the personal property, as the testator intended that the property should go to his collateral relatives, as in case of intestacy.

      It seems, that the plaintiff had not by bringing this action debarred himself from sharing in the property under the prohibitory clause contained in the will, not only upon the ground that he was an infant but also upon the further ground that the action itself was not, in its scope and purpose, intended to defeat the known and established intention of the testator, but to obtain an adjudication as to what that intention was.
    Appeal by tbe plaintiff, Harlin James Woodward, and by tbe defendants, Henry A. James, ílonorab C. James, Howard L. James, Horace E. James, Juba W. Pbillip and Virginia P. Kean, from that portion of tbe judgment of tbe Special Term, construing tbe will of Frederick P. James, deceased, which decides, first, that tbe defendant Julia C. James is entitled to one-balf the gross income of tbe estate; and second, that tbe devisees take per stirpes and not per capita, and third, that the will creates a valid trust in tbe executrix.
    Tbe testator left surviving him only bis widow, Juba L. James, one brother and two sisters, five nephews, four nieces and the plain tiff herein, who is his grandnephew. He left neither father, mother nor descendants. The material parts of the will are as follows:
    “I give and bequeath to my beloved wife Julia, for her sole use, enjoyment and benefit during her life, without restraint, deduction or interference in any manner whatever, as follows: First. One-half the income of all my' property of every kind, of which. I may die possessed. Second. The use, enjoyment, rental and occupation of my two residences, one known as Cragside, in Cold Spring and Phillipstown, New York, and the other known as No. 400 Fifth avenue, New York city. Third. I give, devise and bequeath absolutely to my said wife, all the household furniture, pictures, plate, books, ornaments, horses, carriages, farm implements and property of every description in or upon or pertaining in any manner to the two houses and residences aforesaid. The said devises and bequests to my said wife to be in lieu of dower and right of dower.
    “ I give, devise and bequeath to my legal heirs, the remainder of the income from my property during the life of my wife, after the payment and discharge of all taxes and assessments and charges and interest and obligations against my said estate, except as hereinafter provided in case of interference. I give, devise and bequeath to my legal heirs, except as herein provided otherwise, the reversion and ownership of all my estate and property, after the death of my wife, with the reservation, exception and direction that in the event of any of my legal heirs making any attempt, directly or indirectly, in any manner or form, to interfere with or restrain, in any manner, my beloved wife from the full enjoyment, use, management, direction and disposition of the property and income of my estate as herein devised, then and in that event, such one of my legal heirs as shall do or perform or aid or abet the performance of such an act, or cause the same to be done, shall be forever debarred from any part, parcel, interest or ownership, or inheritance to any of my property, and be excluded from sharing in the same, and the share that would otherwise have gone to him or her shall be divided among the remaining heirs, according to law.

      “ I authorize and direct my executrix, in her discretion, to sell and convey such portion of my property as may be requisite or necessary to pay and discharge my just debts and obligations. I constitute and appoint my wife, Julia L. James, my sole executrix, and direct that no bond, obligation or surety be required from her.”

      Frank F. Smithy guardian ad litem, for the plaintiff.

      Robert Mazet, Charles 8. Clark and William C. Holbrook, for sundry defendants.

      Franklin Bartlett, for the defendant, Julia L. James.
   Macomber, J.:

.The principal question is whether or not a trust was created by the will of Frederick P. James.- It is observable that no distinct words imposing a trust in the language of the Revised Statutes are used, yet we think that the learned judge at the Special Term, was correct in holding that the intention of the testator, as derived from the whole will, the situation of his property and the relation of his heirs-at-law and. next of kin to him, was to create a .trust by necessary implication. It is apparent that the prime ■motive of the testator was to make ample provision for. the support and maintenance of his wife. She was the immediate object of his bounty. He had no father or mother living and no descendants. His collateral relatives are not shown to have had any particular .claim upon his bounty which was not in his mind subordinated to ¡the interest and protection of his wife. He gave one-half of the •whole income of his- property to her without restraint, deduction .or interference in any manner whatever. He gave her the use .and occupation of a city and of a country residence, together with the household furniture, plate, books and ornaments, horses .and carriages and implements and property of every description -pertaining to such residences, which were necessary to a proper ■maintenance thereof; and in fine, the testator appears to have had ¡the purpose clearly defined in his mind as disclosed by the will to •maintain the property, both real and personal, in the, hands and under the control and management of his wife, and that there -.should not be any division thereof among his next of kin or :heirs-at-law until her death. She was authorized to receive the ■rents, Issues and profits of the estate, and, as has already been pointed out, was personally entitled to retain for her own use and purposes one-half of the gross income. Under these circumstances, -.there was imparted into the will by necessary implication a duty upon the wife as executrix or trustee, to hold the property, collect ¡the income thereof, and properly to distribute, after paying all expenses, the other portion in accordance with the third clause of the will. It cannot now be successfully contended in this State, 'that -particular words are necessary to create a trust by will, so ¡long as the provisions thereof are of such a character as that, in ■order to carry them out, the ordinary powers and duties of a trustee, within- the Revised Statutes, are required. (Brewster v. Striker, 2 N. Y., 19; Vernon v. Vernon, 53 id., 351; Morse v. Morse, 85 id., 53.)

Another question raised by the appellants whether the persons answering to the description' of “■ legal heirs ” as used in the will take- per stirpes or per capita. The Special Term has, as we think properly, construed the will to mean that the collateral relatives should take, not- individually, but in families, or per stirpes. This result is mainly arrived at in this particular instance, for the reason that the testator has not named- any of his collateral relatives anywhere in the will, and refers to, them in this portion of it in the same way that they would be considered when applying to their rights the statute of descents of this State. (See Ferrer v. Pyne, 81 N. Y., 281; Kelley v. Viguas, 20 Rep., 103).

The trial judge, while denying to the plaintiff his prayer for partition -of the real estate, gives certain relief to him by way of a j udicial' construction of the will, and holds that he, with other parties to the suit, is entitled to share in the {noperty,- both real and personal, as a remainderman.' So far as the decision relates to the real estate, it is correct, but the plaintiff is not entitled to share in any of the personal property. Though a legal heir, he is not the next of kin within the statute of distributions which prohibits representation among collaterals after brothers and sisters children

The plaintiff, being á grandmephew, is not entitled to share in the personal property* unless the expression “ legal heirs’1 is to be construed broadly enough to include next of kin. A careful reading of the will leads irresistibly to the conclusion that the testator intended, as has been intimated above, that after the' full’ enjoyment by his •wife of his estate, 'at her death the property should go to his collateral relatives, as in case of intestacy. The expression in this clause of the will means, that the property, after the death of his wife, should be distributed according to law. It would do violence to the whole will and to the situation of the beneficiaries in their relationship to the testator, to say that he intended that the plaintiff should have greater rights or interest in his property than he would have had had there been no will. It is noticeable that the expression is not “ heirs ” alone, but “legal heirs,” thus importing into it a distinct intimation that the property should be distributed and descend according to the statute.

The only remaining question is whether or not the plaintiff, by bringing this action, has debarred himself from sharing in the property under the prohibitory clauses of the will. Although this position is taken in the printed briefs, yet we do not understand counsel to have insisted, upon the oral argument, that a declaration of this court to that effect should be made. Indeed, were it otherwise, we should feel constrained, under the- circumstances, to overrule it, not only upon the ground stated by the learned trial judge, namely, that the plaintiff is an infant, but upon the further ground that the action itself was not, in its scope and purpose, intended to defeat the known and established intention of the testator, but to obtain an adjudication as to what the intention was. This is not an interference with the legal rights of the executrix and trustee.

TIad the action been based upon an allegation of undue influence in procuring the will, or of the mental incapacity in the testator, or of duress, and the plaintiff had been defeated upon the issues, a different question would probably arise. Indeed, the fact that we feel constrained to differ from the trial judge in relation to the extent of the interest of the infant in the estate is sufficient to show that the action was not brought without a semblance of a just claim.

It follows, that the judgment should be affirmed, except as modified in the particular above mentioned, the costs to be paid out of the estate.

Van Brunt, P. J., concurred.

Judgment modified as directed in opinion and affirmed as modified, costs to be paid out of the estate.


author: Lawrence, J.:

text:
    JOHN K. SEARS and Others, Respondents. v. FRANCIS A. WATERS, Appellant.

      Trustees of manufacturing corporations — liability of such trustees under the laws of 1848, chap. 40, sec. 13 — it is the same whether the debt is contracted, arid whether the creditors reside within or without the State of New York.

    Section 13 of chapter 40 of 1848, providing that upon the failure of the trustees of a corporation created thereunder to file the annual report, therein referred to. within the time therein specified, all the trustees of the company shall ho jointly and severally liable for all the debts of the company then existing, and for all that shall be contracted before such report shall he made, makes no distinction as to the place where such debts shall have been contracted, nor does it distinguish between creditors residing in this or in other States.
    Appeal from an order and a judgment sustaining the plaintiffs’ demurrer to the' answer.

      Cornelius A. JRwnkle, for the appellant.

      Charles TI. Fuller, for the respondents.
   Lawrence, J.:

This action is brought against the defendant as trustee of the United States Albumen Manufacturing Company, it being alleged that said company was a domestic corporation, duly organized under the act for the formation of corporations for manufacturing, mining, etc., purposes, passed February 17, 1848, and the acts amending and supplementary to the same, and that between July 7, 1883, and November 3, 1883, at Hyannis, Massachusetts, the plaintiff sold and delivered to said company, at its request, goods and merchandise at the price of, and for which said company promised and agreed to pay to said plaintiffs, the sum of $763.70. It is alleged that a balance of $584.64 is due to the plaintiffs, and that the said goods were sold and the said indebtedness contracted after the time provided by statute for making and filing and publishing the annual report, and before said report was made, filed and published. It is further averred that said company did not, within twenty days from the 1st of January, 1883, make and publish, as required by law, the report required, by law, but has wholly failed so to do. To this complaint an answer was interposed averring^ among other things, upon information and belief, that none of the goods referred, to in the complaint were ever, sold or delivered to. said company in this State, and that no cause of action ever- arose therefor in this State.

This action is brought under section’12 of the act of 1848, chapter 40, relating to the formation of corporations for inaufacturing, etc., .purposes, as amended by Laws of 1875 (chap. 510). That section, among other things, provides that upon the failure to fife the annual report therein referred to, within the time therein specified, all the trustees of the company shall be jointly and severally liable/bp all the debts of the company then existing, and for all that shall be contracted before such report shall be made„ The statute makes no distinction as to the place where such debts shall have been contracted, nor doe's, it ..distinguish between creditors residing in this or in other States. ' . . >

We are, therefore, of the opinion that the decision, at the Special Term, sustaining the demurrer to the answer, was correct, and that the same should be affirmed, with costs.

Van Brunt, P. J., and Potter, J., concurred.

Judgment and order affirmed, with costs.


author: Lawrence, J.: Bartlett, J.

text:
    THE YOUNG MEN’S CHRISTIAN ASSOCIATION OF THE CITY OF NEW YORK, Respondent, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Appellant.

      Taxation — when property held and used by a Young Men’s Christian Association is exempt from it — It. 8., pt. 1, chap. 13, tit. 1, see. 4, sub. 8, as amended by chapter 397 of 1888 —1852, chap. 282 — 1882, chap. 410, sec. 837.-
    The plaintiff was incorporated under a special act for the purpose of improving the spiritual, mental and social condition of the young men of the city of New York by supporting and maintaining lectures, sermons, • libraries, reading-rooms, social meetings, and such other meetings and services as might conduce to the accomplishment of this object. On or about July 10, 1884, the plaintiff commenced, and in October, 1885, completed, the erection of a building upon lots theretofore acquired by it, which -was to be, and has since ils completion been, used exclusively as a place for holding public worship and religious and social meetings, and for imparting religious and secular instruction to young men; a library and lecture-room or large hall, a reading-room, bath-room and gymnasium being maintained in the building, and instructions being there given in penmanship, arithmetic, bookkeeping, mechanical, architectural and free-hand drawing and lectures on scientific, '.medical and practical subjects, and concerts and other entertainments being there given.
    These advantages and privileges are offered to all young men of decent character upon becoming members of the association, and upon the payment of a membership fee, ranging from fifty cents to four dollars per year, which is applied to the pajment of the current expenses of the institution; attendance at the religious meetings and on occasions of public worship being free to all.

      Held, that the plaintiff was a religious society, within the meaning of that term as used in chapter 283 of 1852, and that its property was used for religious and school purposes in such a sense as to exempt it from taxation. (Bartlett, J., dissenting.)

      Hebrew Tree School Association v. The Mayor of New York (4 Hun, 446); Association for Colored Orphans v. The Mayor (38 id;, 594)-followed.
    An assessment was laid upon the property of the plaintfE on the second Monday of January, 1885, and the tax levied thereunder was confirmed on August seventeenth of that year.

      Held, that as the property had been acquired, and the erection of the building commenced, before the assessment was made and the tax was confirmed, the tax was invalid and should be set aside as a cloud upon the-title of the plaintiff.

      Si. James' Church v. Mayor (41 Hun, 309) followed.
    ■Appeal from a judgment, entered upon the trial of this action by the court without a jury, directing a' tax levied upon property of the plaintiff to be canceled and annulled, and' restraining the defendant from enforcing the tax or the lien created thereby.
    The plaintiff is a corporation existing under an act to incorporate _ the Young Men’s Christian Association of the city of New York, passed April 3, 1866, and an act amending the same passed May 6, 1872.' The objects of the corporation are declared by the acts aforesaid to be the improvement of the spiritual, menta: and social condition of the young men of the city of New York, by the support and maintenance of lectures, sermons, libraries, reading rooms, social meetings and such other meetings and services as may conduce to the accomplishment of this object. Prior to 1885, the plaintiff was, and still is, the exclusive owner in fee of two lots in the city of New York, known by the1 street Nos. 222 and 224 : Bowery.
    On or about .the 10th of July, 18S4, the plaintiff commenced the erection of the building now covering both lots and known as the “ Young Men’s Institute ” for the purpose and with the intent of putting the same to the uses and objects for which the same is now used. On the second Monday of January, 1885, the property was assessed for taxation for said year in the sum of $50,000, and on or about August II, 1885, a tax of $1,200 thereon for said year was confirmed by the board of aldermen and constitutes a lien valid on its face, upon the property aforesaid.
    The building in question was completed in October, 1885, after the confirmation of the tax, and thereupon the plaintiff commenced to use the same as a place for holding public worship and religious and social meetings, and for imparting religious and secular instruction to young men. In said building are maintained by the respondent, a library and lecture room or large hall, reading-room, bath room and gymnasium, and instruction is given in penmanship, arithmetic, bookkeeping, mechanical, architectual and free-hand drawing and lectures are given on scientific, medical and practical subjects, and concerts and other entertainments are held therein.
    The court below found that the aforesaid advantages and privileges are open to all young men of decent character upon becoming members of said association, and upon the payment of a membership fee, ranging from fifty cents per year to four dollars per year, and that attendance at the religious meetings and occasions of public worship are free to all. Also, that from the time of the commencement of the erection of said building the respondent has derived no income, rent or profit from the said lots or building or any part thereof, other than the membership fees aforesaid, and that since the completion of said building the said premises have been exclusively used for the purposes above mentioned, and all the said membership fees have been applied to the current expenses ■ of the institute. The court also found, among other things, as conclusions of law, that the respondent constitutes a religious society, and that the tax is invalid and void, and. that the same constitutes a cloud upon the title of said property, and judgment was directed that said tax is illegal and void, and that the same be canceled and the defendant be restrained from enforcing the same. From this judgment an appeal was taken to this court.

      E. Henry Laeombe, counsel to the corporation, and George S. Coleman, for the appellant.

      Hubbard Smith and Cephas Brainerd, for the respondent.
   Lawrence, J.:

It is provided by the Revised Statutes (as amended by chapter 397 of the laws of 1883, vol. 1, page 388, sec. 4. sub. 3), that the following, among other property, shall be exempt from t ixation: “ Every building erected for the. use of a college, incorporated academy or other seminary of learning and in actual use for either of such purposes, every building for publie worship, every schoolhouse, court-house and jail used for either of such purposes and the several lots whereon such buildings so used are situated and the furniture belonging to each of them.” Subdivision 4. Every poor-house, alms-house, house of industry,” etc. Subdivision 5. “ The real and personal property of every public library. Chapter 282 of the Laws of 1852 provides: Section 1. “ The exemption from taxation of every building for public worship, and every school house or other seminary of learning under the provisions of subdivision three of section four, title one, chapter thirteen, of part first of the Revised Statutes or amendments thereof, shall not apply to any such building or premises in the city of New York unless the same shall be exclusively used for such purposes and exclusively the property of a religious society, or of the New York public school society.”

The question to be determined in this case is whether the plaintiff is to be deemed a religious society, and an examination of the eases heretofore decided under the statutes just referred to, would seem to show that that question must be answered in the affirmative. In the case of the Hebrew Free School Association v. The Mayor of New York (4 Hun, 446) it appears that the plaintiff was incorporated under the act for the incorporation of benevolent, charitable, scientific and missionary societies, passed April 12th, 1848, and the acts amendatory- thereto. That the purpose of said corporation was to provide for the gratuitous instruction of Jewish youth in the Hebrew religion, and other branches of knowledge, and to promote the study of Hebrew literature. In that case Presiding Justice Davis in delivering the opinion of the court, said, “ but we think the words ‘ a religious society,’ used in the act of 1852, were not intended to be used in the limited signification of church incorporations or bodies organized for the mere purpose of establishing chwrch societies, as provided by the act of 1813 and its amendments. It is true that the act of 1848 was not intended for the organization of religious societies, in the sense of incorporated churches; but in the more general sense, we see no reason why a body like the plaintiff may not be deemed a religious society, and as such, the exclusive owner of property devoted to a school for religious and other instruction.” (See, also, Association for Colored Orphans v. The Mayor, etc., 38 Hun, 594.) In the latter case it was held that it was not intended by chapter 282 of the Laws of 1852, or section 827 of chapter 410 of the Laws of 1882, providing that the exemption from • taxation, of buildings used for the purposes therein specified, should not apply to any building or premises in the city of New York, unless the same shall be exclusively used for such purposes, and exclusively the property of a religious society, to limit the exemption to such property as is owned by a religious society, but it was intended thereby to give the exemption to such building or premises as should be exclusively devoted to one or the other of the purposes therein specified, whether the property was owned by a religious corporation or not. It is said, however, in this case, that the property in question was not used exclusively for religious purposes, that the public worship and religious exercises of the institute only consist of a Bible class, Bible talk, and gospel meetings held every Sunday, while the institute is mainly devoted to physical, intellectual and social improvement for a'consideration. We think, however, that the uses to which the property is put may fairly be said, under the decisions above quoted, to be both for religions and school purposes, in such a sense as to entitle it to exemption from taxation. It is further said that the property was not in actual use for the purposes for which it had been acquired, until after the tax for 1885 had been confirmed. This is true, but the property had been acquired and the erection of the building begun before the assessment and before the confirmation of the tax. This brings the ease within the decision of the G-eneral Term of this department in St. James Church v. Mayor, etc., of New York, (41 Hun, 309).

"We are, therefore, of the opinion that the evidence supports the findings of fact and conclusions of law of the Special Term, and that the judgment should be affirmed, with costs.

Van Brunt, P. J., concurred.

Bartlett, J.

(dissenting):

I am unable to concur with the majority of -the court, in the conclusion that the respondent’s premises are used "both for religious and school purposes in such a sense as to entitle them to exemption from taxation. The statute requires an exclusive use of the huild.ing in such a case as this,, for religious purposes, or as a schoolhouse, or other seminary of learning. (Laws of 1852, chap. 282.) I do not think the Bowery branch of the Young Men’s Christian Association is either a school-house or seminary of learning in the statutory sense, nor does it seem to me that an exclusive use for religious purposes is made out by showing that there are religious exercises there every Sunday and prayer meetings on Thursday, when it also appears that the building is chiefly devoted to the physical, intellectual and social improvement, mainly by secular means, of the young men- who become members of the associatiori.

Judgment affirmed with costs.


text:
    MARY McDERMOTT, as Administratrix, etc., of PATRICK McDERMOTT, Deceased, Appellant, v. THE THIRD AVENUE RAILROAD COMPANY, Respondent.

      Negligence — wnen a witness may express an opinion, based upon what he actually saw — a nonsuit should • be granted where there is a failure to establish the absence of any contributory negligence. ...
    Upon the trial of this action, brought hy the plaintiff to recover damages sustained hy reason of the death of her intestate, which was alleged to have been caused hy the negligence of the defendant’s employee in driving one of its horse ears in Third avenue, the only witness who testified to having seen the deceased before the accident was one G-Iennon, who was standing beside the-driver on the front of the car. He testified that McDermott, the-deceased, was between ten and fifteen feet awayfrom the horses when the driver shouted; that after the shout McDermott came partly to a stand still; that he was - outside'of the line of the track, and about four feet from the east rail of the up track, and that at the distance at which he was standing the car could have passed safely.

      Held, that an exception to a ruling overruling an objection to a question put to the witness asking as to whether, at the distance at which the deceased was standing, the car could have passed safely, was not well taken, as the witness had been in the employ of the company, taking care of horses, for nearly five years, and the subject as to which he was interrogated was a matter as to which any person of ordinary intelligence could properly testify.

      Hallaban v. New York, Lalce Etrie and Western Railroad Company (102 N. Y., 199) and Blake v. People (73 id., 586) followed.
    That, on the facts so proven, the plaintiff was properly nonsuited for not establishing that the deceased was free from contributory negligence.

      Tolman v. Syracuse, Binghamton and New York Railroad Company (98 N. Y., 198); Barker v. Savage (45 id., 191) followed.'
    Appeal by tbe plaintiff from a judgment dismissing the complaint, on the ground that there was no evidence showing negligence'on the part of the defendant, and also on the ground that the absence of contributory negligence was not shown on the part of the deceased, but that the presence of contributory negligence had been proven on his part.
    The complaint alleges that on the evening of the 7th of February, 1885, Patrick McDermott, late of the city of New York, now deceased, while endeavoring to cross Third avenue at. the corner of One Hundred and Seventeenth street in said city, without any fault or negligence on his part, was through the negligence, default and wrongful act of the defendant, its agents and servants, struck by one of the defendant’s cars and knocked down and had the bones of his leg severely fractured by one of the wheels of said car, from which injuries he died on the 8th of February, 1885.
    The answer of the defendant denies this allegation in substance, and alleges that the injuries in the complaint alleged to have been sustained by Patrick McDermott, were caused solely or in part by the negligence of. said McDermott.

      JL. T. Wood, for the appellant.

      Walter N. Cohen, for the respondent.
   Lawrence, J.:

It was held by the Court of Appeals in the case of Tolman v. Syracuse, Binghamton and New York Railroad Company (98 N. Y., 198) that: “ In an action for negligence, causing death, the burthen oh establishing affirmatively freedom from contributory negligence is upon the plaintiff, and while, although there were no eye-witnesses of the accident, and although its precise cause and manner of occurrence are unknown, absence of contributory negligence may be established sufficiently to make it a question of fact for the jury, by proof of such facts and surrounding circumstances as reasonably indicate or tend to establish that the accident might have occurred without negligence on the part of the deceased; yet if the facts and circumstances, coupled with the occurrence of the accident, do not indicate or tend to establish the existence ,of some cause or occasion therefor, which is consistent with proper care and prudence, the inference of negligence is the only one to be drawn, and the defendant is entitled to a nonsuit.”

In this case the only witness who testified to having seen the deceased before the accident was James Grlennon, who was standing beside the driver on the front of the car. He testified that McDermott was between ten and fifteen feet away from the horses when the driver shouted. He further testified that after the shout McDermott came partly to a standstill; that he was outside of the line of the track and about four feet from the east rail of the up track, and that at the distance at which he was standing the car could have passed safely. The question as to whether, at the distance at which the deceased was standing, the car could have passed safely, was objected to, and exception was taken to its allowance. I am of the opinion that that exception was not well taken. The witness was on the front of the car, and had been in the employ of the company, taking care of horses, for pretty nearly five years, and the subject as to which he was interrogated was a' matter as to which any person of ordinary intelligence could properly testify.

In Hallahan v. New York, Lake Erie and Western Railroad Company (102 N. Y., 199), Miller, J., in delivering the opinion of the court, says in regard to a somewhat similar question: “ But even if the evidence may be regarded as calling for an opinion in any way, as the testimony was based upon the personal knowledge of the facts, we think it may be considered as competent.” (See, also, Blake, v. People, 73 N. Y., 586.)

It seems that under the decision, of Tolman v. Syracuse, Binghamton and New York Railroad Company (98 N. Y., 198), on the facts proven at the trial, the plaintiff was properly nonsuited for not establishing-that the deceased was free from contributory negligence. Under that case and the case of Barker v. Savage (45 N. Y., 191) it was necessary for the plaintiff to establish, before recovery could be had, that the deceased was free from contributory negligence. As has been before stated, the only evidence in the case from an eye witness was. that given by James Glennon, who testified that McDermott was between ten and fifteen feet in front of the horses, and came thereupon partly to a standstill, being at that time four feet outside of the track, and that at the distance at which he was standing the car could have passed safely. Such being the uncontradicted evidence, it is immaterial whether the defendant was' guilty of negligence, or whether any of the exceptions to the admission or rejection of evidence were properly taken, it having been determined that the objection and exception to the evidence of Grlennon, heretofore referred to are untenable.

I am, therefore, of the opinion that the dismissal of the complaint •was correct, and that the judgment below should be affirmed, with costs.

Van Brunt, P. J., and Bartlett, J., concurred.

Judgment affirmed, with costs.


author: Van Brunt, P. J.:

text:
    JEROME BERNHEIMER and Others, Respondents, v. HENRY S. HERRMAN and Others, Appellants.

      Payment — the receipt of a check does not operate as a payment unless the check is actually paid in due course.

    In this action, brought to recover for goods sold and delivered by the plaintiffs to the defendants, the latter sought to prove payment by showing the delivery of a check on the Chemical Bank, payable to the order of the National Suspender Company, the name under which the plaintiffs did business, to one Morse, the plaintiffs’ bookkeeper, who. was in the habit of receiving cash and checks paid at the office and receipting the bills. Morse, without authority, indorsed upon the check the name of the " National Suspender Company, W. R. Morse, attorney,'1 and passed it to one Cochrane, who deposited it in the North River Bank, by which it was collected of the .Chemical Bank, which charged the amount to the account of the defendants and returned the check to them with other vouchers.

      Held, that the receipt of the check by the plaintiffs’ agent did not operate as an . extinguishment or payment of the defendants’ debt, as the defendants had failed to prove that it had been actually paid in due course; the payment of a check, drawn payable to order and unindorsed to a party who has received die same from a person who has stolen the check, being held not to be a payment in due course.
    That a claim that the plaintiffs should have brought an action for conversion against either Cochrane, the North River National Bank or the Chemical Bank, or against all three combined, upon the ground that the title to the check passed to the plaintiffs, immediately upon its receipt by their agent, could not ■be sustained, as if Cochrane, or either of the banks, had converted the check,' the defendants were equally guilty of conversion in now retaining it.
    Appeal from a judgment in favor of the plaintiffs, entered upon a verdict directed by tbe court.
    This action was brought to recover for goods sold and delivered by the respondents to the appellants. The answer was payment. The alleged payment was made by handing a check, drawn on the Chemical Bank, payable to the order of the National Suspender Company, the name under which the respondents.did business, to repondents’ bookkeeper, ~W. R. Morse, who was in the habit of receiving cash and checks paid at the office, and who, on receipt of the said check, receipted the bills for goods due from the appellants to the respondents.
    The check was appropriated by Morse to his own irse, indorsed by him in the name of the National Suspender Company, W. R. Morse, attorney, which indorsement he had no authority to make, and the check was passed by Morse to one Cochrane, who deposited it in the North River Bank, by which it was collected of the Chemical Bank, which latter bank charged the amount to the account of the appellants and returned the check to the appellants with their other vouchers. The appellants’ account was marked paid in the respondents’ ledger by Morse, and, although the dealings between the parties continued, none of the statements, subsequently sent to appellants, according .to the usual customs of merchants, contained any reference to the goods mentioned in the complaint. Mr. Morse was the bookkeeper, and made the entries in the books, but made no entry of this check in the casli-book, as cash received, nor upon the check-book, as a check for deposit, as his duties required him to do. In order to balance his books personal accounts were falsified, and on rendering trial balances false additions were resorted to, and thus the frauds were not discovered until seven months had elapsed. Upon the close of the respondents case the appellants moved to dismiss the complaint upon the grounds that the claim in suit had been paid, and that the title to the check having passed to the plaintiffs immediately on its receipt by their agent, their proper remedy was an action for conversion against either Cochrane, the North River National Bank or the Chemical Bank, or against all three combined ; and at the close of the case the appellants’ attorney asked to go to the jury as to whether the bill was paid, and also as to whom the check was paid to, which motions were denied and a judgment directed for plaintiffs, and from such judgment this appeal is taken.

      Samson Lachman, for the appellants.

      Francis G. Reed, for the respondents.
   Van Brunt, P. J.:

The appellant claims, amongst other things, that the only evidence on the question of the authority of Morse to indorse checks being that of one of the plaintiffs, it was error to refuse to submit the case to the jury. -

It is true that where it is necessary to prove a material fact in a case, and the only evidence having a tendency to establish such fact is that of a party interested, that the opposing party has the right to have .the question submitted to a jury; but this rule has no application to the case at bar. The appellants claim payment by a check, payable to the order of the Suspender Company, and the burden is upon the appellants to show that the check has been duly indorsed and paid ; and the respondents are not bound by the production of a check purporting to have been indorsed by them, unless such indorsement is admitted or proved. It is also a familiar rule of law that, where a party claims to bind a principal by the act of an agent, that the authority of the agent must be proved; therefore, in the case at bar, the check in question purporting to bave been indorsed by Morse as attorney for the plaintiffs, the burden was upon tbe defendants to show his authority

The next questions to be considered are those raised upon the motion to dismiss the complaint. First, that the claim in suit has been paid, and, second, that the plaintiff’s proper remedy was an action for conversion against either Cochrane, the North River National Bank or the Chemical Bank, or against all' three combined, the title to the check having passed to the plaintiffs immediately on its receipt by their agent. It is somewhat difficult to see why the appellants counsel lias omitted the defendants from the last proposition. If Cochrane converted the check, and the North River Bank converted the check, and the Chemical National Bank converted the check, the defendants are equally guilty of conversion in now retaining the check If the check was the plaintiffs’ while Cochrane or the North River Bank, or the Chemical Nati on si Bank held it, it is equally so now, while the defendants hold the same, and the plaintiffs have no greater rights against the first three named than exist in their favor against the defendants If no title to the check was conferred upon Cochrane and the banks by the unauthorized indorsement, certainly they could trail s-fer no title to the check to the defendants.

The claim that the plaintiffs’ demand has been paid does not seem to have any better foundation. Tiie giving of a promissory note or check does not extinguish the debt, but an action may be brought for the recovery of the original debt; the party suing being only required to surrender the check or note upon the trial. (Parrott v. Colby, 6 Hun, 55; affirmed, 71 N. Y., 597) Therefore, the receipt of the check in question by an agent authorized to receive the same did not operate as an extinguishment or payment of defendants’ debt. Even if the cheek had been received by the plaintiffs, they had a right to return the check and sue upon the original debt.

The defendants having unlawfully become in possession of the check, the plaintiffs are not required to return the same. The appellant seems to claim that as, if this bill had been paid in cash, Morse would have had the right to receive the same, and although Morse might have converted the money to his own use the plaintiffs could not have recovered from the defendant, the same result follows although the bills in question were attempted to be paid by a check drawn to the order of the plaintiffs and paid to the holder of the check, which was unindorsed by the payee, and to which check the defendants themselves claim the holder had no title.

In support of this proposition is cited the case of Hunter v. Wetsell (84 N. Y., 549), in which case it is distinctly stated that a check in and of itself is not payment, but it may become so when accepted as such and in due course actually paid; that is, in order that a check may operate as payment two things must concur. The check must be accepted as payment, and in due course be actually paid. In the case at bar only one of these necessary elements exists. The check in question was accepted as payment, but it has not in due course been paid. The payment of a check drawn payable to order, and unindorsed, to a party who has received the same from a person who has stolen the check cannot be held to be payment in due course. The case last cited simply recognizes a rule which has been in existence since the origin of commercial paper, and which is fatal to the defendants’ contention in the case at bar..

The judgment appealed from must be afíLmed, with costs.

Bartlett and Lawrence, JJ., concurred.

Judgment affirmed, with costs.


author: Van Brunt, P. J. :

text:
    THE CENTRAL NATIONAL BANK OF THE CITY OF NEW YORK, Respondent, v. THE NORTH RIVER BANK, in the City of New York, Appellant.

      Payment of a check indorsed by a clerk without authority — the bank collecting it guarantees the genuineness of lite indorsement.

    'The. defendant in this action presented for payment to the plaintiff certain checks, payable to the order of the National Suspender Company, which ;a depositor of the plaintiff had drawn upon the plaintiff to the order of said 'Suspender Company; the cheeks which purported to be indorsed in blank by the •duly authorized agent of the Suspender Company, were paid. Upon learning that the indorsements were made without authority, and that the checks had 'been appropriated by a clerk of the Suspender Company, the plaintiff paid the amount of the said checks to the Suspender Company, and brought this action to recover the amount so paid from tne defendant.

      Held, that it was entitled to do so, as the defendant, in presenting the checks for payment, guaranteed the indorsement, and had no right to retain the’ money obtained by the false pretense that it was entitled to receive it.
    Appeal from a judgment in favor of the plaintiff entered u on a verdict directed by the court.

      E. L. BusJie, for the appellant.

      F. G. Seed, for the respondent.
   Van Brunt, P. J. :

The defendant in this action presented for payment, to „he plaintiff, certain checks payable to the order of the National Suspender Company, which certain depositors of the plaintiff had drawn upon the plaintiff to the order of said Suspender Company, which checks purported to be indorsed in blank by the duly authorized agent of the Suspender Company, and such checks were paid by the plaintiff to the defendant. The indorsements upon these checks were made without authority and the checks were appropriated by a clerk of the Suspender Company.

Upon learning these facts the plaintiff paid the amount of said checks to the Suspender Company and brought this action to recover the amount paid to the defendant upon these stolen unindorsed checks. The defendant, by presenting these checks for payment, asserted its ownership of the same, or its right to collect, and the plaintiff in making the payment had .the right to rely upon this assertion of right or title. It subsequently appearing that these cheeks had been stolen from the payee thereof, the true owner, and that they were never indorsed by it; it seems too clear for argument that the plaintiff had a right ta recover back the money which it had been induced to pay by the false assertion of ownership or right to collect made by the defendant. The defendant, in presenting this check for payment, guaranteed the indorsement, and it is immaterial whether the plaintiff had actually paid the money again to the payee of the check or not; the liability to pay existed and the defendant has no right to retain money obtained by the false pretense that it was entitled to receive the money. It is sought to defeat the plaintiff’s claim because of some alleged laches of somebody; that the position of the defendant with reference to the depositor from whom the defendant received these checks has been changed, and that, therefore, it would have been inequitable to allow recovery, and our attention is called to the case of Mayer v. The Mayor, etc. (63 N. Y., 455). This case, however, is no authority in the case at bar.

In the case cited, the rule is being laid down in a ease where the person making the payment, who seeks to recover it back, is negligent; not the case where, if there is any negligence, it is the party receiving the payment and who refuses to pay it back. The parties were bound to proceed diligently after discovering the fraud, but no laches can be imputed prior to its discovery.

The claim that the clerk of the National Suspender Company had any right to indorse these checks is entirely unsupported by the evidence, unless.every merchant, by the employment of a bookkeeper, thereby gives him authority to indorse commercial paper in his name. With the condition of the account between Morse and the Suspender Company, neither the plaintiff or defendant had anything to do. Morse had stolen these checks, and the owner had the right to recover them back and collect them, even if it did owe him some money. The defendant had received from the plaintiff the amount of these stolen checks, representing that the payee had indorsed them, and it had the legal title to the same; and the plaintiff is entitled to recover its money back upon proof that they were stolen property and that the payee had never ■indorsed the same; and this claim cannot be complicated by an attempt to show that the thief had a counter-claim which he himself could not set up.

But the evidence conclusively shows that the Suspender Company owed Morse nothing. The proof by Mr. Bernlieimer, supported by his books, proves conclusively that cash was advanced when the check was received. It may be that if there had been only the verbal testimony of Mr. Bernheimer, the defendant might have had the right to have the question submitted to the jury; but supported, as it was, by entries made at the time of the transaction in his check-book, there was no question for the jury. It is, besides, doubtful if any sufficient request was made to go to tbe jury upon this point.

The judgment should be affirmed, with costs.

Bartlett and Macomber, JJ., concurred.

Judgment affirmed, with costs.


author: Per Curiam :

text:
    In the Matter of the NEW YORK ELEVATED RAILROAD COMPANY (In re STORY).

      Appraisals of damages for tailing lands for railroad purposes— the second report is final— 2 B. S. (Jthed.)p. 1553, see. 18 — from what time the owner is bound to pay interest, on refunding the difference between the first and second award.

    Section 18 of the general railroad act (3 It. S. [7th ed.], p. 1553) provides that when the first report of the commissioners, appointed to appraise the damages to be awarded to the owner of lands to he taken for railroad purposes has been set aside and a new appraisal has been ordered, “ the second report shall be final and conclusive on all the parties interested. If the amount of the compensation to be paid by the company is increased by the second report, the difference shall be a lien on the land appraised and shall be paid by the company to the parties entitled to the same, or shall be deposited in the bank as the court shall direct, and if the amount is diminished the difference shall be refunded to the company by the party to whom the same may have been paid, and judgment therefor may be rendered by the court, on the filing of the second report, against the party liable to pay the same. ”

      Reid, that the statute only required the person receiving the first award to repay the difference between the first and second award, and that he was not obliged to pay interest thereon except from the time that the final report had been confirmed by the court and a copy of the order of confirmation had been served upon him.
    Motion for a final judgment upon the confirmation of a second report of commissioners appointed to determine the damages to be awarded to one Rufus Story for a privilege, easement or other interest possessed by him in Front street, in the city of New York.
    By the first report, which was finally confirmed on March 10, 1885, the sum of $15,000, with interest from the date of the order, and the costs and expenses of the proceedings, were awarded to Story, to whom they were paid by the company on March 21,1885, Upon an appeal taken by the company to the General Term, the report was set aside and a new appraisal was ordered by new commissioners, who, on November 27, 1885, made a report by which’ they awarded to Story the sum of $7,000, which report was, in November, 1886, confirmed by the General Term. The petitioner claimed that it was entitled to a judgment for the difference between the amount paid under the report of the first commissioners and the amount of the award under the second report, with interest from the date of the payment.

      W. JB. Honiblower, for the motion.

      J. E. Parsons, opposed.
   Per Curiam :

The statute requires the property owner upon the reduction of the amount of damages appraised by the second appraisal to pay only the difference, between the amount finally awarded and that contained in the appraisal set aside. It does not direct the difference to be paid with interest, but simply that the difference shall be paid. (2 R. S. [7th ed.], p. 1552, § 18.) The obligation of the owner to pay this difference for the first time arose when the final report was confirmed by the court, and the order of confirmation served upon him or his attorney.

From that time he has been in default in the payment of this difference, and under the general principles of law applicable to the payment of legal obligations should pay interest from that time, and it will be so ordered.

Present — Van Brunt, P. J., Brady and Daniels, JJ.

Motion granted as stated in opinion.


author: Brady and Daniels, JJ.;

text:
    SARAH URANSKY, Respondent, v. THE DRY DOCK, EAST BROADWAY AND BATTERY RAILROAD COMPANY, Appellant.

      Damages — right of a married woman to recover the damages sustained in her separate business by a personal injury — cross-examination — right of the witness to explain an answer given therein, by stating the reasons given by her doctor for refusing to be a witness — admissibility of the testimony of a non-professional witness as b complaints of pains and suffering made by the plaintiff.

    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury and from an order denying a motion for a new trial, made upon the minutes of tbe justice before wbom the action was tried.
    The action was brought to recover damages for personal injuries alleged to have been occasioned by the defendants’ negligence.
    Judge BRADY, delivering the opinion of the court at General Term, said : “ The plaintiff, who is a married woman, was injured while a passenger on the defendants’ road, and the jury, properly instructed, found that her injuries resulted from the carelessness of the defendants, driver, and awarded her damages. The defendants sought to relieve themselves from responsibility by proving that the accident was caused by a wagon or truclc, which was backed down upon their track and under circumstances which could neither be anticipated nor their result avoided. The defendants’ car was, as they allege, arrested in its progress by other vehicles, and had stopped until an opening presenting itself, and giving abundance of room to proceed, it was set in motion. This had hardly occurred, however, when a wagon or truck which had been an obstacle to its progress, and which had moved out of the way, backed very unexpectedly on the track and caused the collision by which the plaintiff was injured. It was not questioned on the trial that, if the plaintiff’s injuries were occasioned by the carelessness of the driver of the wagon or truck, the plaintiff could not recover; but whether such were the fact or not, was a question clearly submitted to the jury on conflicting evidence and under proper instructions on the subject. The defendants complain of many errors which were urged on the argument, as reasons why there should be a new trial and by which they insist injustice was done them. Some of these are of sufficient import to demand particular attention. The plaintiff was permitted to show how much she could earn as a dressmaker, against the defendants’ objection, which was predicated of the case of Filer v. The New York Central Railroad Company (49 N. Y., 56). The plaintiff, however, met the demands of that adjudication by stating that her business was that of a dressmaker, and that she had a fancy store for dry goods and fancy goods and wrappers, and she had alleged in her complaint that she was prevented from attending to _ her business. This was sufficient to authorize her to give evidence of and to establish her right to damages for such losses. The case referred to does not question the right of a woman to recover for damages arising from a loss of business. It is only when she does not carry on business on her own account that she cannot recover for them, inasmuch as her husband is then entitled to her services and may maintain an action for the loss of them,
    “During the cross-examination of the plaintiff, she was asked whether a Dr. Messener, who had visited her in her illness, had been subpoenaed as a witness on her behalf, and answered, ‘No, sir; he told me he would not go/ On the redirect she was asked whether the doctor told her why he would not come, and what he said. She was allowed to answer, against the objection of the defendant’s counsel. Her answer is as follows: A.' He says: ‘ Mrs. Uransky, I have all my friends from the company, and the conductors and the drivers; if I should go against the company then they will throw out all those people they put on the road for me, and then every one will starve if I should go for you, and I could not do that for you; ’ he could not go against the company.
    “ The doctor was not shown to be in any wav connected with the defendants, and what he said would not have been competent, unless made so by the cross-examination. Tliis seems to have been the conclusion here, for the question was asked, as we have seen, whether the doctor had been subpoenaed, and presumably if he had not for the reason that he could not benefit the plaintiff, and might injure her case. This was an argument that .might be employed, ■and ingeniously, and therefore the right to show why he would not come seemed to have arisen as the result of the cross-examination. The effect of unfortunate questions is often damaging, and this is another to be added to the long list which already exists.
    On the fourth day after the accident the plaintiff, who had been continuously ill, was visited by an acquaintance who was a nurse, though not a professional, and she was permitted to state that the plaintiff complained of a pain in her back and body, thus corroborating the statement of plaintiff that she had such pains, and this is complained of not because it might not be proper if the statement had been made at the time the in juries were received, but because too long a time had elapsed since that occurrence. The case of Hagenlocher v. Coney Island Railroad Company (99 N. Y., 136) contains the latest expression on the propriety of such evidence, but does not favor the proposition that pains felt a few days after an injury, and which were intermittent, if not continuous from the time of the injury were not to be considered by the jury in estimating the damages to be given in compensation. It is too late now to question the right of an injured person to indemnity for suffering caused by the injury, even down to the time of the trial. Whether, however, the pains are the result of it, or feigned, as suggested in the case just cited, is for the jury to determine.” f * *
    The question last discussed was also considered by Judge Daotels in an opinion, of which the following is a copy:
    “ During the trial of this action, which was for a personal injury, the witness Mary A. Fielder was allowed to relate a conversation had with the plaintiff on the 26th of April, 1885, four days after the occurrence of the accident. By the evidence proposed to be given, it was intended to prove complaints which the plaintiff made to this witness, who was not a physician, and which were not made to secure medical or surgical assistance concerning her injury and sufferings. This was objected to as incompetent. The objection was overruled, and the defendant’s counsel excepted, and under this ruling the witness testified in answer to questions propounded to her as follows: Q. Did she complain to you at that time of any pain? A. Yes, sir. Q. State what she said? A. She said that she was in pain, was hurt and cut. She said she liad a terrible pain on the right side of the lower part of her stomach. Q. State what she said about pains ? A. In her back she was in terrible pain, and her head.”
    Under the rule of evidence, as it was formerly held and applied, this testimony could have been legally received upon the trial, for this rule permitted complaints of pain and suffering to be proved in behalf of the plaintiff’s case, although they may have been made in the course of conversations with a person not applied to for either medical or surgical assistance. (1 Greenl. on Ev. [7th ed.], § 102; Caldwell v. Murphy, 1 Kern., 416; Matteson v. N. Y. Central, etc., 35 N. Y., 487; Insurance Co. v. Mosly, 8 Wall., 397.) But in the case of Reed v. New York Central, etc. (45 N. Y., 574), it was held by Judge AlleN, who delivered the opinion of the court, that statements and declarations of this description were no longer entitled to be received in evidence, when not made to a physician or surgeon, because of the competency of the party injured to take the stand and testify, as a witness, concerning the facts. But this opinion, as broadly as it was written, was concurred in only by Judges Grover and Rapallo. Judge Folger agreed to the result, and the two other judges in the court dissented. While this decision, therefore, indicates a strong disposition to abrogate this preceding rule of evidence, it is not entitled to be attended with tbis effect, for a majority of the court were unwilling to consent to this result. The case of Hagenlocher v. Coney Island, etc., Railroad Company (99 N. Y., 136), does not include, or consider this precise point, and for that reason it is not an authority on this subject. Under the rules stated and followed in Waldele v. New York Central, etc. (95 N. Y., 274), this evidence was no part of the res gestae, and it was not entitled to be received under that authority, or the case of Powers v. Village of West Troy (25 Hun, 561).
    The safe course, in view of what was said in the case of Reed v. New York Central, would be to reject all such evidence, but as the preceding rule relating to it cannot yet be said to have been overthrown by the opinion there announced and concurred m by two of the other judges of the court, and it has the support of other cases, decided in the same court, since the provision went Into effect allowing the party to be sworn as a witness in his or her own behalf, it should not now be held to have been error for the court to receive this testimony on this occasion. This is all that it is considered necessary to add to the opinion of Mr. Justice Beady, and the judgment in the action, as well as the order denying a new trial, should be affirmed.
    Van Brunt concurred.

      J. M. Scribner, for the appellant.

      Louis Z. Kinstler and J S. Lehmaier, for the respondent.'
   Opinions by

Brady and Daniels, JJ.;

Van Brunt, P. J., concurring in the latter.

Judgment and order affirmed, with costs.


author: Brady, J.;

text:
    CERCLE FRANCAIS de L’HARMONIE, Appellant, v. STEPHEN B. FRENCH and Others, Respondents.

      Boddl club — the rule that the police will be pi'evented from invading the precincts of the club or interfering with its property does not apply to a ball given by it, iiclcets to which are sold to all persons, and at which wines and liquors are sold tc all persons willing to pay therefoi',

    Appeal from an order made at Special Term denying a motion to continue an injunction pendente lite.

    The court at General Term said : “ The plaintiff is a social club, organized under the laws of the State, and owns the real estate in this city where it has its office and meeting-rooms, which are regularly used by its members and their guests. It has been accustomed, annually, for many years past, to give a ball, and to rent for that purpose the large building known as the Academy of Music, the club-house being too small for the purpose. In connection with this ball the plaintiff has been in the habit of furnishing its members and their guests with refreshments on the night of the ball, and from one a. m. until five a, m., and this included wines and liquors of different kinds. The Academy of Music has a license to sell liquors. The plaintiff, proposing to give a ball on the 20th January, 1880, duly obtained a license therefor from the board of police, leased the academy'for the night, paid the rental of one thousand dollars and invested some seven thousand dollars in provisions, wines and liquors to be used by its members and their guests at the ball. The police department, under whose supervision the ball must take place, have the right and power to close the same whenever any illegal act shall be committed. These authorities on the day the ball was to be given, which they had duly licensed, notified the plaintiff’s officers ot their intended interference with and arrest of the plaintiff’s members for using and distributing their liquors, and that, too, without obtaining a warrant. This action was then commenced to prevent these contemplated acts, and an injunction obtained until the hearing of a motion to make that remedy perpetual. It was not intended to present the wines and liquors to the members or their guests, but to sell 'them at a price to be determined. Upon the hearing of the motion it appeared by the affidavit of William II. Clinchy, who is a captain of police, that he was in charge of the police force on duty on the night of the ball and morning following; that the ball was carried on by the plaintiff and attended by a large number of persons, according to its estimate about four thousand or five thousand persons; that a box office was kept in the lobby of the academy, at which checks or tickets were sold to all persons applying therefor, who were thereafter admitted to the ball, and that between the hours of one and five a. m., and on the twenty-eighth of January, wines and intoxicating liquors were publicly sold and furnished to the persons attending the ball, and that payment therefor was then and there required and taken by the persons selling the same. The statements thus made by the captain were not gainsaid and the motion was denied. The proposition that the police authorities may be prevented from invading the precincts of a private clubhouse when the intention is to interfere with its festivities, properly conducted and not amounting to a nuisance, or such a clamor as creates a breach of the public peace, and particularly when the intention is to interfere with its property of any kind, cannot well be doubted. The authorities, so ably collated by the learned counsel for the plaintiff, are conclusive on the subject. (Seim et al. v. The State, 55 Md., 566, 571; Commonwealth v. Smith, 102 Mass., 144; Common

      wealth v. Pomphret, 137 id., 564, 566; Graff v. Evans, 8 Q. B. Div., 373, 377; Springhead Spinning Co. v. Riley, L. R., 6 Eq. Cases, 551, 558; The People v. The Canal Board, 55 N. Y., 390, 393; Davis v American Society, 75 id., 362, 369; The People ex rel. Negus v. Dwyer, 90 id., 402, 409; The State Lottery Co. v. Fitzpatrick, 3 Woods, 222.) But as shown by the affidavit of Captain Olinchy, the ball was not confined to the members of the club, inasmuch as the tickets were publicly sold to any one who sought one, and the liquoi's were indiscriminately sold to the persons admitted and desiring them. These facts prevented the application of the rule established by the cases cited, and the continuance of the injunction. for the reason that the Academy of Music ceased to be a private club-house for the period during which the ball continued, the entrance to which and privileges therein were not confined to its members and their guests in the proper and legal sense of that term. It thus became a public festivity held in a public, not private, building, to which all could have access who paid for admission. The question, therefore, whether the police authorities have the right to invade a private club-house is not strictly presented on the facts which appear in the record. The question we are now called upon to consider is not whether, under the facts and circumstances disclosed, an injunction should have been granted, but whether it should have been continued, and for the reasons given, it is clear it should not have been.
    The order appealed from, therefore, must be affirmed, with ten dollars costs and disbursements.”

      C. A. Seward, for the appellant.

      D. J. Dean, for the respondent.
   Opinion by

Brady, J.;

Daniels, J., concurred.

Order affirmed, with ten dollars costs and disbursements


author: Macomber, J.;

text:
    ROBERT BEATTY, Respondent, v. JOSEPH CLARK and Others, Appellants.

      Evidence — what must be proved to enable parties to put their own books in evidence in thdr own favor.

    Appeal from a judgment in iavor of the plaintiff entered upon the report of a referee.
    The action is upon an account, and the defense is a general denial and payment. . ,
    The court at General Term said: “Throughout the case tne defendants’ testimony tends to show that whatever work was done by the plaintiff, and whatever goods were furnished by him to the defendants were paid for shortly after their rendition. Upon the issue of payment for the goods and services rendered we would not perhaps feel inclined to disturb the findings of the referee, as they have been made under a conflict, of evidence, and there is not that preponderance of testimony on the one side which would justify such a review of the facts. But the principal cause of action for the plaintff rests upon different considerations, for there being no admissions or concessions by the defendants, the only evidence of the existence of the indebtedness allowed by the referee is derived from the books of the plaintiff. To enable a party’s own books of account to be put in evidence in his favor the rule as stated in Vosburgh v. Thayer (12 Johns., 462), and as it still exists, is that a foundation must be laid for their admission by proving that the party had no clerk; that some of the articles charged had been delivered; that the books produced are the account books of the party, and that he keeps fair and honest accounts, and this must be done by those who have dealt and settled with him. In Ives v. Waters (30 Hun, 298) it is stated that there exists no reason for relaxing the rule in any particular, because it was established by the courts when parties could not be witnesses in their own behalf, and that it is a clear innovation upon the ancient common law which precludes parties from making evidence in their own favor. The testimony by which it is sought to show that the plaintiff’s books of account were honestly kept, and that parties had settled with- Mm upon the basis of the charges in such books, is given wholly by the two witnesses, Robert Swan and John Kyle. Swan, in his direct examination, which was apparently taken in the absence of the defendant’s counsel, said that he found the plaintiff’s books and accounts for the work to be correct, and paid him for the accounts which he rendered. The witness being subsequently called for a cross-examination, testified as follows : ‘ I paid upon bills rendered to me by him. I never settled with him upon his books, .only upon his bills. I never knew what books he kept. I never opened Ms books. I never looked into his books. * * * I did not know what those books contained.’ The witness John Kyle testified on his direct examination, also in the absence of the defendant’s counsel, as follows: ‘ I never found any mistakes in the accounts or bills from Ms books that he rendered to me. I paid him according to the bills he presented to me, except sometimes he made a discount for cash payments.’ He, in turn, being again summoned, testified as follows: ‘ Q. Did you testify on December fourth that you never found any mistake in the accounts or bills from his books that he, the plaintiff, rendered to you? A. Yes, I believe I did so testify. Q. Did you ever see any of Mr. Beatty’s books ? A. Never, except I may have seen what I supposed to be the day book lying on his desk in his shop. Q. Did you ever know that book which you saw there was a day book ? A. I did not. Q. Did you ever examine that book or any book belonging to Mr. Beatty? A. I did not. Q. Did you ever know Mr. Beatty kept any books? A. No, sir. Q. Did you ever know that any account rendered to you was taken from his books? A. No, sir. Q. In point of fact, you never settled any account of his on his books. A. No, sir. Q. Do you know, then, whether he kept his books correctly or not? No, sir.’

      “ This evidence is not sufficient to satisfy the rule that the fact must be shown that the party keeps fair and honest accounts, for such fact must be established, if at all, by those who have dealt and settled with Mm upon the faith of correct bookkeeping. Under this evidence the introduction of the plaintiff’s books of account was not sufficient to charge the defendants, and there being no other evidence of the rendition of the services and the delivery of the property, except in a minor particular, it follows that the judgment should be reversed and a new trial ordered before another referee, with costs to the defendants to abide the result of the action.”

      William II. Townley, for the appellants.

      Theodore D. Dimon, for the respondents.
   Opinion by

Macomber, J.;

Van Brunt, P. J., and Bartlett, J., concurred.

Judgment reversed, new trial ordered before another referee, with costs to. appellant, to abide event.