text:
    George Maitland et al., Resp’ts, v. Central Gas and Electric Fixture Company, App’lt.

      (New York City Court, General Term,

      Filed June 25, 1895.)

    Deposition — Examination before trial.
    In an action to recover royalties, an order for the examination of defendant’s officers before trial to ascertain what goods it had manufactured. and sold during the time referred to in the complaint, will he vacated, where the answer of the defendant and the affidavit of its secretary positively deny that it had manufactured or sold, during such time, any goods covered by the patents.
    Appeal from an order, denying a motion to vacate an order for the examination of defendant’s officers before trial.

      Bayliss & Bayliss, for app’lt; Otis & Pressinger, for resp’t.
   Newburger, J.

— This action is brought to recover royalties under a license agreement with the defendant. The defendant, by its answer, denies that it has sold or manufactured the articles referred to in the complaint, or is liable to the plaintiffs in any sum whatsoever. The plaintiffs obtained an order for the examination of the defendant before trial, in order to ascertain what goods it manufactured and sold during the quarter beginning January 1, 1895. The defendant moved to vacate said order or an affidavit of its secretary, who stated that defendant had not manufactured and sold, or imported and sold, any electric light fixtures during the quarter sued for in this action. The motion to vacate was denied, and from the order entered, upon such denial this appeal is taken.

Without considering the question as to the sufficiency of the plaintiffs’ affidavit, we think the order for the examination of the •defendant's officers should have been vacated, for the reason that the positive statement in the answer of the defendant, and in the affidavit of Charles H. Fischer, its secretary, is that nothing has' been done during the quarter referred to in the complaint, and that the defendant had not sold or manufactured during the quarter -commencing January, 1895, any fixtures covered by the patents referred to in the license agreement.

The order appealed from must therefore be reversed, with •costs.


source: Caselaw Access Project

author: Conlan, J.

license: Public Domain

text:
    Solomon Davis, as Treasurer, etc., Resp’t, v. Michael Boon, App’lt.

      (New York City Court, General Term,

      Filed June 27, 1895.)

    Former adjudication — Parties.
    Where a judgment is not between the same parties nor involves claims of the same character, there is entire lack of mutuality necessary to make it res adjudicates, or an estoppel of record.
    Appeal from a judgment entered in favor of plaintiff,.and from an order denying a motion for a new trial.

      Marsheim & Manheim, for app’lt; Fromme Bros., for resp’t.
   Conlan, J.

— Appeal from a judgment entered on the verdict of a jury by direction of the court, and from an order denying a motion for a new trial. This action was commenced to recover the sum of $400. claimed to be due the plaintiff, under and by virtue of a certain bond executed by the defendant to the plaintiff. The bond refers to an agreement between the parties, and it is for a breach of one of the covenants of this agreement that plaintiff claims to recover the amount stipulated in said bond.

The terms and conditions of said agreement material to this case are as follows:

First. The said party of the second part (meaning defendant), in consideration of one dollar and other good and valuable consideration, does hereby agree to employ none but members in good standing of the said party of the first part.

Second. That, in consideration of the agreement hereinabove, the said party of the first part (meaning plaintiff) does hereby agree to furnish, upon demand of the said party of the second part, a sufficient number of workingmen, members of the corporation aforesaid, party of the first part.

The answer of the defendant admits the making of the bond and agreement, and alleges a breach of plaintiff’s covenant to supply workingmen to the defendant. Plaintiff introduced the bond and agreement, and evidence that on the 13th day of November, 1894, and about one month after the making of said bond and agreement, the defendant was not employing men supplied by the plaintiff. The evidence of the defendant shows that he is a manufacturer of garments; that on the 31st day of October, 1894, one Morris Greenberg was working in his shop, with several others supplied by the plaintiff, when a dispute arose between said Greenberg and defendant, which resulted in Greenberg leaving the shop of the defendant. Shortly afterwards, and on the same day, a Mr. Schoenfeldt, who was the walking delegate of the plaintiff, called at defendant’s shop, and took away all the men furnished by the plaintiff to the defendant. Subsequently, and ■on the 17th day of November then next, one Bannon, as assignee of Greenberg, commenced an action in the Seventh judicial district court to recover his (Greenberg’s) week’s wages from the defendant, on the ground that he had been wrongfully discharged. The defendant answered that he (Greenberg) unjustly left his employ, and that he was willing to retain him. Judgment was entered against the defendant for the amount claimed.

. On the trial of this action, the defendant undertook to shqw that he had not violated the terms of the agreement by arbitrarily discharging or refusing to employ workmen furnished by the plaintiff; whereupon plaintiff’s counsel offered in evidence the judgment roll in the district court action as res adjudícala of the wrongful discharge of Greenberg by defendant Defendant’s counsel objected to the introduction of the roll, as not binding on the defendant. The objection was overruled, and the court said in admitting it:

“The Court: In this case there cannot be any question but that all of the issues embraced in the pleadings in that action is res adjudícala so far as this action is concerned. Therefore it must appear that if this man discharged him without cause, and if he had no justifiable reason for discharging him, he could not have recovered. * * * Bannon could not have recovered until he first proved his cause of action. (Exception taken by defendant.) ”

The subsequent rulings of the court were all consistent with the view he entertained of the admissibility and pertinence of the roll. It will therefore not be necessary to discuss the ruling and exception in detail. The court, in directing a verdict, stated clearly his reasons for excluding testimony as to what occurred between Greenberg and defendant, and also between defendant and plaintiff, respecting the employment of men under the agreement, as follows - “The Court: I will direct a verdict in favor of the plaintiff, and

give you my reasons.” In this case, under the contract made between the plaintiff and the defendant, the defendant was to employ all members of the plaintiff's union against whom the defendant could have no reasonable or proper objection, either as to their competency or their willingness to do the work or .carry out any contract that was made with them. The sole complaint of the defendant in this action is directed against the alleged misconduct of Mr. Greenberg. Testimony of that character is inadmissible in this action, for the reason that it was determined in the action of Bannon against Boon in the Seventh district court, which judgment roll is marked in evidence here. It was determined, by reason of the issues in that action, that Greenberg was a faithful workman, and performed his contract, whatever it was, with the defendant. We think the admission of the judgment roll was. error. It was not between the same parties, nor are the claims of the same character. It will not be contended that., if the judgment had been in favor of the defendant, it would have concluded the plaintiff in an action on the bond. There was therefore an entire lack of mutuality necessary to make the judgment res ad.judicata or as an estoppel of record.

In Malsky v. Schumacher, 56 St. Rep. 840, the court says: “An estoppel, to be effectual, must be mutual.”

In Furlong v. Banta, 80 Hunn, 248; 61 St. Rep. 253, Judge Herrick, in writing the opinion, says :

" “To render a judgment roll admissible in evidence for the purpose of concluding the parties as to the facts litigated in a former action, it is not sufficient that the facts or issues should be the same in both" actions. In addition thereto, the parties in the second action must have been parties in the first action, or then-privies, and the judgment therein must have been conclusive as to both parties."

See Booth v. Powers, 56 N. Y. 33; Collins v. Hydorn, 135 id. 320; 48 St. Rep. 370.

The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event.

All concur.


author: McAdam, J.

text:
    Louis Rosen, Pl’ff, v. Morris Rose, Def't.

      (New York Superior Court, Equity Term,

      Filed July 1, 1895.)

    1. Statute of frauds — Land.
    An agreement to execute a lease of real property for one year, with the privilege of two more, is within the statute of frauds.
    2. Same — Part performance.
    In such case, the payment of money on account is not such part performance as will take the case out of the statute of frauds.

      Action for specific performance. ,

      Steuer & Rosenthal, for pl’ff; C. Goldzier, for def’t.
   McAdam, J.

— The plaintiff seeks specific performance of an alleged oral agreement, by which the defendant was to execute a lease of real property, in this city for one year, with the privilege of two years more. Such a contract relates to the leasing of lands for more than one year (Chretien v. Doney, 1 N. Y. 419; House v. Burr, 24 Barb. 525 ; Kramer v. Cook, 7 Gray, 550; Voege v. Ronalds, 83 Hun, 114; 63 St. Rep. 837), and, to be valid, must be in writing, subscribed by the party to be charged (2 Edm. R. S. 139, § 6 ; Wood, Landl. & Ten. § 188). Though the plaintiff has not received possession, he claims that the want of a writing is made up by part performance, in that defendant accepted $10 on account The doctrine of part performance applies only where a contract is so far performed that the parties cannot be restored to their original position except by equitable aid, which is sometimes extended to prevent fraud. The payment of the money in this instance does not prevent a case calling for equitable relief, for complete restoration may be obtained by an action at law for its recovery. Pom. Spec. Perf. § 113 ; Fry, Spec. Perf. § 403 ; Bisp. Eq. | 384. Upon the proofs, the court finds that the lease was to be executed by the defendant after he had satisfied himself that the plaintiff was a desirable tenant. He investigated, was dissatisfied, and offered to return the deposit, which plaintiff declined to accept. The defendant, upon the law and facts, is therefore entitled to judgment.


author: Bischoff, J.

text:
    Fred. H. Williams, App’lt, v. Charles C. Dodge, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 27, 1895.)

    Evidence — Panol.
    Evidence as to an individual employment of plaintiff by defendant furnished by a letter may be rebutted by testimony that the employment was had in the first instance through another party, that the money sued for was the balance of the amount agreed on with him to be paid and that he had no authority to hire any one in defendant’s behalf.
    Rehearing.

      Howard Y. Stillman, for app’lt; J. A. Denison, for resp’t.
   Bischoff, J.

— In this action the plaintiff claimed $300 for services alleged to have been rendered at defendant’s instance and request. The services in question were performed by plaintiff, as attorney, in furtherance of an undertaking which had been entered upon by defendant and others to obtain from the Massachusetts legislature a charter and privileges for axcertain canal company. The jury rendered a verdict in favor of the defendant, and it is now claimed that the plaintiff was prejudiced by the admission of certain testimony and by the charge delivered by the trial judge, the court being asked to reverse the judgment notwithstanding the absence of exceptions to the charge. According to the plaintiff’s evidence, the defendant, in an interview held between them at Boston on the 24th of May, 1892, at a time when all the services in question had been performed, promised to pay the plaintiff’s bill for the amount in suit. This was directly contradicted by defendant. Plaintiff also put in evidence a letter written to him by defendant prior to the above date, which, recognizing an existing employment in the undertaking at somebody’s instance, contained certain advice touching the matter. Further, it was shown -in plaintiff’s behalf that he first met the defendant in Boston at his (plaintiff’s) office, where one Dresser introduced them to one another. At this meeting defendant certainly is not shown to have retained the plaintiff, the interview being solely for the purpose of obtaining from defendant the facts as to which he would testify before the legislative committee, and this very clearly in pursuance of an existing employment. On cross-examination of the plaintiff, defendant brought out the fact that the employment was had in the first instance through this individual, Dresser, and that the sum in suit was the balance of that agreed upon with him to be paid. This testimony, together with the evidence adduced on behalf of the defendant showing the absence of agency in Dresser to retain counsel in the farmer’s behalf, was properly in the case to rebut the evidence- as to an individual employment of plaintiff by defendant furnished by the letter above referred- to, wherefrom an inference might perhaps have been drawn that there was such an employment. In our view, the charge delivered was most fair to the plaintiff, affording three opportunities for a recovery — through emplojunent by Dresser as agent, by ratification or guaranty of payment, and through direct employment by defendant. That such three grounds of recovery, in place of the latter one above, were called to the jury’s attention, now forms the appellant’s complaint, made for the first time; but, in view of the circumstances of the case, the evidence received — and properly, as shown, — and the plaintiff’s acquiescence in the charge, it would appear that the point made, while constituting no ground for a reversal, is also an afterthought, induced by failure where snccess was looked for.

The remaining point to be noted is that raised by an exception taken to the court’s exclusion of testimony offered by the plaintiff as to a conversation had with him by Dresser at the time when the latter made the payment to him on account of services. It is claimed that the evidence shows defendant’s payment to Dresser of moneys to be expended in this particular enterprise, and that the agent’s representations in the course of duty were admissible against the principal. This might well be true, but for the fact that the payment and statements were made by Dresser to plaintiff in the month of February, 1892, while the transactions had by defendant with Dresser as to his enterprise had not their inception until the following month.

The judgment is affirmed, with costs.

All concur.


author: Adams, J.

text:
    Jeremiah Quill, Pl’ff, v. Empire State Telegraph Company, Def’t.

      (Supreme Court, Cayuga County Circuit,

      Filed January, 1895.)

    1. Negligence — Remote.

      The falling of an insulator from a telephone pole on a person in the street below is not so remote a contingency as to exempt the company from liability.
    2. Same — Licensee.
    The company owning, maintaining and controlling the pole, is responsible for any negligence of its appurtenances which it permitted to exist by its passive acquiescence, whether such acquiescence followed actual knowledge or resulted from failure to acquire knowledge; and the same rule applies where there is a partial occupation by a mere licensee.
    3. Same — Proximate cause.
    Where several proximate causes contribute to an accident, either of which is an efficient cause, without which the accident would not have happened, it may be attributed to any or all of "them.
    Motion for a new trial on the minutes.
    Plaintiff’s injuries were alleged to have been occasioned by the negligence of defendant, which is a duly-organized corporation, owning and using the necessary poles, wires, and other appliances for the proper operation of its business of transmitting telephonic communications with lines extending through some seven counties of this state, including the county of Cayuga. At the junction of Genesee and Exchange streets, in the city of Auburn, it has caused to be erected a pole, ninety feet in length, upon which it has placed about twenty cross-arms, which extend downward from the top of the pole, and into these cross-arms wooden pegs have been inserted at convenient intervals, to which are attached glass insulators, for the purpose of enabling the defendant to string and insulate its wires. These insulators are hollow cylinders, and upon the inner surface thereof is a thread which corresponds with another thread cut upon the wooden peg, and cannot be detached from the cross-arms, unless either the peg or insulator is broken. At the time of the injury to the plaintiff, the top cross-arm was used by the American Telephone Company. The next two or three were not in use at all, but the next thirteen were used by the defendant, while the lowest one of all, by an arrangement existing between the defendant and the Western Union Telegraph Company, was used by the latter corporation for the purpose of stringing thereon some of its wires. It appears that a wire belonging to the fire-alarm system of the city of Auburn had in some manner come into contact with or was crossed by one of the wires passing over this pole, and it became necessary to disconnect the same. To accomplish this, a lineman in the employ of the city ascended the pole on the 27th day of June, 1891; and, in attempting to raise a wire it caught under an insulator, threw it off from the peg upon which it rested, and, in falling to the ground, it struck the plaintiff, who was standing upon the sidewalk, in close proximity to the pole, upon the left shoulder, with such force as to produce an injury of so serious a character that the arm was thereby rendered practically useless, and has remained so ever since. The insulator which fell was the third one from the inside upon the lowest cross-arm, — the one used by the Western tin ion Telegraph Company. It was produced and identified upon the trial, and appeared to be smaller in size than those used generally by that company, but of the same size and style as those used by the defendant. The evidence tended to show that it was simply placed upon the peg from which it fell without having been screwed on, or in any other manner firmly attached. There was also evidence that, at the time of the accident, there were other insulators of the same size upon the cross-arm in question, to which no wires were attached, and that the telegraph company did occasionally make use of this style of insulator. The case was submitted to the jury, and a verdict of $4,000 in favor of plaintiff resulted.

      Underwood, Storke & Seward, for the motion ; Rich & Allen, opposed.
   Adams, J.

— The only questions argued upon this motion were those which involve the plaintiff’s right to maintain his action against this defendant, the contention being that the evidence fails to establish any negligence upon the part of any one to which can be justly attributed the injury of which the plaintiff complains, but that, if any is proven, it is negligence upon the part of the Western Union Telegraph Company or an employe of the city of Auburn, and not upon the part of the defendant. It will be well, therefore, to consider these several propositions in the order in which they are stated; that at the outset it may be conceded, as was suggested in the charge to the jury, that the circumstances attending the plaintiff’s injury were somewhat extraordinary in their nature. That the insulator which caused the injury should have been lifted from its resting place at the precise moment of time when the plaintiff was standing in a position where he could be struck as it fell is a circumstance entirely peculiar to this case, and, because it is exceptional, it is argued that the defendant is under no obligation to guard against a contingency which there was so little reason to anticipate.

It is unquestionably the rule, and a very just one, that no person can be charged with a negligent omission of duty for a failure to anticipate and guard against some contingency which would not have arisen save under circumstances which are exceptional. Hubbell v. City of Yonkers, 104 N. Y. 434; 5 St. Rep. 730. The mere fact, however, that a similar accident never before happened, does not necessarily repel the charge of negligence, Cleveland v. N. J. Steamboat Co., 125 N. Y. 299; 34 St. Rep. 938; the true test being, as stated in the lest case cited, whether it is one which might reasonably have been anticipated, or one the occurrence of which would not, in the minds of reasonable men, be in the highest degree unlikely.” Measured by this standard, it is obvious, I think, that the case presented questions of fact which the plaintiff was entitled to have a jury pass upon; for, although it may be claimed with great propriety that there was no good reason for anticipating an accident in all its details like the one in question, yet, the possibility of a personal injury occurring by reason of the failure to properly adjust a glass insulator, of no inconsiderable size and weight, to its proper place upon a telephone pole, can hardly be said to be so remote as to justify the claim that ‘‘ in the highest degree it is unlikely to happen.” Here was a pole ninety feet in height, with twenty cross bars or arms attached to it, and upon these arms were pegs for possibly 200 insulators, and over them were stretched a vast number of wires. This structure was located at the junction of two thoroughfares in a flourishing city, and by and around it hundreds of people were passing daily. The evidence discloses the fact that it frequently became necessary for the employes of the different companies using the poTe to ascend it for the purpose of readjusting the wires, and, the better to accomplish this, a bridge had been constructed from an adjoining building which rendered the pole and wires easy of access. How, if this glass insulator was simply placed upon its peg and tipped over upon one side, without being screwed on, as described by one of the plaintiff’s witnesses, it is, after all, remarkable that in the frequent changing of the wires, or in the adjustment of new ones, it should be jerked off and made to fall upon some person passing along the street below ? Or is it inconceivable that even the swaying of the wires by a brisk wind might have produced the same result ? In making these suggestions, I am not unmindful of the attempted demonstration upon the part of the defendant of the utter impossibility of displacing an insulator from one of these wooden pegs, even when it is not firmly attached by means of the screw ; but the evidence -of the witness Hurlburt cannot be ignored, and, if it could be, the fact remains that the insulator was in some manner displaced and thrown to the ground; and this, in the absence of any explanatory circumstance, would seem to establish a prima facie case of negligence upon the part of some one. Mullen v. St. John, 57 N. Y. 567; Crozier v. Read, 78 Hun, 181; 60 St. Rep. 215 ; Morris v. Strobel & Wilken Co., 81 Hun, 1; 62 St. Rep. 572.

The claim that the fault, if any, was that of Hurlburt, and not of this defendant, was submitted to the jury, and they were instructed that if the insulator, having been properly attached, was displaced simply because of the force which was employed by him in raising the wire of the fire-alarm telegraph, the plaintiff could under no possible circumstances recover. The issue thus raised having been submitted to the jury, their verdict must be regarded as conclusive upon the subject, and, therefore, it may 'be assumed that the insulator was placed upon the wooden peg in a careless and negligent manner, and so we have fairly presented for consideration the question as to the party who is responsible therefor.

The defendant sought to escape responsibility for the accident by claiming that the cross-arm from which the insulator dropped -was used exclusively by the Western Union Telegraph Company, and that, therefore, that company, and not the defendant, should be charged with the consequences of the negligent act. It is true that the company did use this cross-arm, so far as it was used at all ; nevertheless, the evidence was such as would have warranted the jury in concluding that the insulator was placed in position by the defendant, for the telegraph company certainly had no wire attached to it although it appears that one ran along by the side of it, and, as has been stated, it was of the same size and kind as the insulators used by the defendant. But, assuming that the telegraph company did cause the insulator to be placed upon the peg in the manner described by the plaintiff’s witnesses, yet I fail to see how this relieves the defendant from all share of responsibility for the result which followed. It is expressly admitted by the answer that the pole in question was created and maintained by the defendant, and, if it saw fit to permit some other person or corporation to use a single cross-arm as a matter of convenience, it, nevertheless, appeared, and was not disputed, that the defendant remained in virtual possession of the entire structure, and exercised a supervisory power over it, for its employes were constantly climbing the pole to readjust wires, and its superintendent testified that it was his business to inspect it, and that he knew what its condition was at the time of the accident. It matters little, therefore, what was the precise relation existing between the defendant and the telegraph company ; for, if it was that of lessor and lessee, the pole being practically in the possession and certainly under the control of the former, it became charged with the duty of keeping it in such a condition of safety that travelers upon the highway should be exposed to no unnecessary hazard therefrom, Khron v. Brock, 144 Mass. 516; Gray v. Gas Light Co., 114 id. 149 ; Inhabitants of Milford v. HolbroocK, 9 Allen, 17 ; there is no reason why the same rule should not apply where the-partial occupation is that of a mere licensee. In either case, so-far as the present action is concerned, the negligence complained of may be predicated of the dangerous condition of the insulator, or the failure to discover its condition by the omission of proper inspection. In other words, the defendant, owning, maintaining, and controlling the pole, was responsible for any negligent condition of its appurtenances which it permitted to exist by its passive acquiescence, whether such acquiescence followed actual knowledge or resulted from failure to acquire knowledge. Gottlieb v. Railroad Co., 100 N. Y. 462; Goodrich v. N. Y. C. & H. R. Railroad Co., 116 id. 398; 26 St. Rep. 767; Gray v. Gas Light Co., supra; Coupland v. Hardingham, 3 Camp. 398 ; Anderson v. Man. Railway Co., 49 St. Rep. 233.

But it is further insisted by the defendant’s counsel- that, even though there was an omission to fasten the insulator securely upon the cross-arm, such omission cannot be said, to have been the proximate cause of the plaintiff’s injury. It is often a difficult matter to determine with any degree of accuracy what is the- “ proximate cause" of an accident, and it frequently happens in cases of negligence that several causes concur to produce certain results, one or all of which may be denominated • “ proximate.” This is peculiarly true of the case in hand, for it is absolutely certain that the plaintiff would have escaped injury upon the day in question but for the intervention of a third party, for whose acts the defendant is in no wise responsible, so that it may be asserted with equal certitude that the raising of the fire-alarm wire by Hurlburt was a proximate cause of the consequeuces which followed. But, on the other hand, had the insulator been firmly attached to the peg upon which it rested, — -and, once more, in considering the question, it must be assumed it was not, — the raising of the wire probably would not have displaced it and caused its fall. It would seem, therefore, that the case comes fairly within the rule which holds that where several proximate causes contribute to an accident, either of which is an efficient cause, without which the accident would not have happened, it may be attributed to any or all of them. Ring v. City of Cohoes, 77 N. Y. 83; Phillips v. N. Y. C & H. R. Railroad Co., 127 id. 657: 38 St. Rep. 675.

The questions discussed upon this motion, as well as upon the trial, possess great interest, and are not wholly divested of embarrassing features; but mature reflection and careful consideration, with the aid of such light as is'furnished by the authorities cited, incline me to believe that the case was properly submitted to the-jury, and that the verdict should not be disturbed.

The motion is therefore denied, with $10 costs.


author: Sheldon. S.

text:
    In the Matter of a Proceeding to Appraise the Estate of Marietta Grover, Deceased.

      (Surrogate’s Court, Herkimer County,

      Filed June, 1895.)

    Will — Construction.
    A devise of certain premises to one party, and at her decease to become the property of another, gives the former a life estate, with remainder after her death to the latter party,
    Proceeding to appraise an estate for taxation under the transfer tax law.

      Henderson & Bell, for George Chassell; I. R. Devendorf for . the county treasurer.
   Sheldon. S.

— By her last will and testament Marietta Grover made the following devise: “ I give, devise, add bequeath to my sister, Eliza Chassell, of Holland Patent, in the county of Oneida and state of New York, my house and lot located on Steuben street, in Holland Patent, county and state aforesaid, and at her decease to become the property of her son, George Chassell.” The question for determination is whether Eliza A. Chassell takes the house and lot absolutely and in fee, or does she take a life estate only and the remainder in fee vest in her son George? The controling rule in the construction of wills is that the intention of the testator must govern, unless carrying the intention into effect would violate the law. In arriving at the intention of the will maker words. must be given their ordinary meaning, unless their use in a different sense is manifest from other language and provisions, and, if possible, all the-words used by the testator are to be considered in arriving at the intent. I find no other provision of the will or language used therein which sheds any light upon the intent of the testator in making this devise. The devise must be clearly of s. fee if it were not for the words “and at her decease to become the property of her son, George Chassell.”

The district attorney, for the people, contends that the effect of the whole is to give Eliza a life estate and the remainder in fee to her son George. George contends that his mother was intended to have an absolute estate, and that only in case of the death of his mother before the death of the testator was he to have the property, and as that contingency has not happened his mother takes the fee. His contention is that the clause must be construed as though the concluding portion read, “and in case of her death the property shall go to her' son, George Chassell.” It is well settled that the use of such language imports the intention to provide for the happening of a death prior-to the death of the testator, and in this case, if such is the meaning, George Chassell takes •nothing, as the contingency has not occurred, the mother, Eliza, having outlived the testator. But I am of the opinion that the testatrix did not have in her mind and intend to provide for the happening of the death of her sister Eliza before her own death, but that she had in her mind that her sister Eliza should have and enjoy the property devised to her during her life, and that at -her death George should own and enjoy it. Such is the natural meaning of the language used. The property could not become the property of George at the death of Eliza unless Eliza outlived the testatrix. The idea was plainly that there should be a succession of estates, .the mother should have the property, and at her death it should become the property of George. Such a succession provided for by the will necessarily made the first estate a life estate only, and the fee vested in George Chassell. It follows that the estate of George Chassell in the house and lot devised is subject to appraisal, and if the total amount passing to George 'Chassell under the will is sufficient to be liable to the tax such tax must be assessed.

Ordered accordingly.


author: Bradley, J.

text:
    James Blass et al., as Executors, etc., Resp’ts, v. Georgianna B. S. Terry, App’lt

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    1. Trial — Direction of verdict.
    A request by both parties for a direction of a verdict waives the right to have any question submitted to the jury, where neither party subsequently asks for the submission of any fact.
    2. Mortgage — Deficiency—Liability.
    The grantee of an undivided half of the debt which he assumes, is liable for the deficiency on a foreclosure sale only to the extent of half of the mortgage debt after deducting half of the price bid for the land.

      Appeal from a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial, made on the minutes.
    On August 24, 1887, Cornelius 0. Howell made to John W. Fuller and James Blass a mortgage upon certain land in Lucas county, Ohio, to secure the payment of his three promissory notes of that date, respectively, for the sums of $1,500, $3,750, and $3,750, payable August 24, 1887, 1888, and 1889. Howell made to Georgianna B. Terry and Sarah L. Schofield a deed of the undivided half o£ such land. Following the granting provision of the deed was the following : “I hereby covenanting that the title so conveyed is clear, free, and unincumbered, and that I will warrant and defend the same against all claims whatsoever; it being understood and agreed that the grantees herein, Georgianna B. S. Terry and Sarah L. Schofield, as part of the purchase price herein, assume and agree to pay thirty-seven hundred and fifty dollars of the mortgage incumbrance on the above-described property, together with the interest thereon. The balance of said incumbrance is to be paid by the grantor, Cornelius C. Howell, herein ; and the covenant of warranty herein, on his part, extends, so far as said mortgage is concerned, only to the half of said mortgage which is to be paid by him, the said Howell.” In an action for the foreclosure of the mortgage, a decree was perfected in the court of common pleas of Lucas county, Ohio, June 18, 1889, by which it was determined that there was then due and unpaid on the mortgage debt $7,865.63, and a sale of the premises directed. They were sold on August 31, 1889, for $4,200, leaving a deficiency of $3,965.28. This action was brought against those grantees in the deed to recover the amount of such deficiency, with which they were alleged to have become chargeable. The defendant Terry alone defended.

      Charles A. Pooley, for app’lt; L. L. Lewis, for resp’t.
   Bradley, J.

— On the motion for nonsuit the defendant’s counsel sought to raise the question that the action could not be maintained in behalf of Anna B. Fuller, as executrix, because her appointment as such was only by an order of the probate court of Lucas county, Ohio, and it is so urged here. The fact that she was appointed by the order of that court appears upon the face of the complaint The defendant at first took, the objection, by demurrer, that she had not legal capacity to sue, but it appears that before the trial the objection thus taken was waived. It therefore is not available on this review.

It is insisted that the deed was not delivered to or accepted by the grantees named in it, that they never consented to assume liability to pay any portion of the mortgage debt, and that the clause to that effect in the deed was inserted without any permission on their part. The delivery and acceptance of a deed are essential to its validity. The record of it is only prima facie evidence that it has been delivered and accepted, and may be rebutted. The deed was recorded in the county where the land was situated. There is no evidence, other than such as may be derived from inference, that the deed camo to the hands of the grantees or of their husbands, who transacted the business in the names of their wives, with the grantor, in relation to the land. There is, however, evidence tending to prove that the purchase was made in the names of Mrs. Terry and Mrs. Schofield, and that they understood that it was done, and that a conveyance of the land was to be made to them. But it does not appear by whom the deed was-taken or transmitted to the county recorder for record. If, however, the clause in the deed purporting to create an assumption on the part of the grantees of payment of a-portion of the money secured by the mortgage was inserted in the deed without their knowledge or consent, and not, in some sense, approved by them, they did not become charged with liability by it. Kilmer v. Smith, 77 N. Y. 226; Deyermand v. Chamberlain, 88 id. 658; Kelly v. Geer, 101 id. 664. The defendant Terry and her husband testified to the effect that the assumption clause was put into the deed without their knowledge or consent, and that they never advised of it until action was commenced. There is evidence tending to prove that the deed, wdien and as drawn, was' read over in the presence of Mr. Terry, who conducted the business of the purchase for and in the name of his wife, and there was some other evidence bearing upon the subject of his knowledge in that respect. The question, therefore, whether or not the defendant Terry was chargeable with knowledge of such assumption clause, and with having assented to it, was one of fact. No request was made to submit any question to the jury. At the close of the evidence the counsel for each of the parties requested the direction of a verdict. By so doing, and by not asking it, they waived the right to have any question submitted to the jury, and treated the evidence as presenting only questions of law. Thereupon, the court, in directing the verdict, must be deemed to have determined the questions of fact against the defendant. Koehler v. Adler, 78 N. Y. 287; Kirtz v. Peck, 113 id. 222; 22 St. Rep. 733.

The defendant’s counsel objected to the introduction in evidence of the judgment roll in the foreclosure action, and it is also-insisted that as there was no allegation in the petition in that action charging Mrs. Terry and Mrs. Schofield with liability, and, the judgment for deficiency was against Howell, the mortgagor-they cannot be charged with it. Assuming that the judgment was not legitimately evidence against the defendant, she was not prejudiced by it. The assumption clause in the deed purported to-create liability of the grantees of the extent of $3,750 and interest. This would have been the apparent situation represented if the judgment roll, including the sheriff’s qertificate of sale, had not been introduced. This reduced the amount of their liability, so far as the proceeds of the sale were applicable to it. As those grantees were not residents of the state of Ohio, or personally served with process in that state, in the forclosure action, it was, as against them, a mere proceeding in rem, and they could not be personally charged by any judgment which might be rendered in it against them. It would, in that respect, have been a nullity. There was therefore neither occasion nor propriety in seeking in that suit, by allegation of their liability upon the assumption clause, to charge them personally upon it by the decree. In that respect the mortgagor alone was there chargeable and charged with the deficiency, between whom and the plaintiff he was liable for the entire amount of it. The defendant was at liberty to prove that the amount due and upaid on the mortgage debt was less than that adjudged by the decree against Howell, the mortgagor, or to prove that the deficiency was less than the amount appearing by the record of the decree, and of its execution in that action. And defenses existing against Howell were available to the defendant, as against the plaintiffs, in so far as they rested in fraud, in inducing the grantees to make the purchase and take the conveyance, or in a want of title in him to convey by the deed, or the failure of consideration for the assumption of liability to pay such portion of the mortgage debt. Dunning v. Leavitt, 85 N. Y. 35; Crowe v. Lewin, 95 id. 423; Loeb v. Willis, 100 id. 231. But the contention that, in view of his covenant in the deed, the default in payment by the grantor of the part of the mortgage debt for him to pay constitutes a defense for the defendant, cannot be sustained.

The only other question requiring consideration has relation to the amount of recovery. The defendant and Mrs. Schofield had title to an undivided half of the land subject to the mortgage. They assumed, by the clause of the deed, the payment of $3,750 of the mortgage debt. At the time of the foreclosure the amount remaining unpaid was in the two notes of the mortgagor, of $3,750 each and the amount by the decree adjudged unpaid was $7,865.-63, with interest at the rate of six per cent from June 17, 1889. The sale August 31, 1889, produced the net sum of $3,997.35, to apply, and it was applied, on the mortgage debt. The deficiency was $7,865.63, and interest from June 17 to August 31, 1889, $97, less $3,997.35, the net proceeds of the sale, $3,965.28. The sale was made of the mortgaged premises, as an entirety. Half of the proceeds was the product of the undivided half to which the defendant and Mrs. Schofield had the title, and they were liable for only one-half the mortgage debt then unpaid. They were therefore entitled to the benefit of one-half of the proceeds of the sale applicable to the reduction of the mortgage debt. Such portion, in legal contemplation, as well as in fact, was paid from their share of the property. The trial was had April 26, 1894, and the verdict was $4,949.36.

The judgment should be reversed, and a new trial granted, costs to abide the event, unless the plaintiffs stipulate to reduce the recovery, exclusive of costs, $2,536.08, and in that event the judgment be so modified, and as modified affirmed, without costs of this appeal to either party.

All concur.


author: Brown, P. J.

text:
    Catharine Schoonmaker, Resp’t, v. Leonard Blass, Impleaded, etc., App’lt

      (Supreme Court, General Term, Second Department,

      Filed Jane 14, 1895.)

    1. Pleading — Amendment.
    The complaint may be so amended as to connect, with the cause of action, a defendant who was mentioned in the title of the action in the summons and complaint, but not in the body of the complaint.

      2. Same. ;
    The order, granting such amendment, must restrict it to the cause of action alleged in the complaint.
    Appeal from an order, granting leave to amend the complaint.

      Isaac K Miller, for app’lt; John Andrews, for resp’t.
   Brown, P. J.

— This action was brought to foreclose a mortgage on real estate. The appellant was made a party defendant, his name appearing as such in the title of the action in the summons and complaint. He was not, however, named in the body of the complaint, and there was nothing therein to show what connection he had with the mortgaged property or the cause of action alleged in the pleading. He served an answer containing a general denial of the allegations of the complaint. The order- appealed from recites that, upon the actiop coming on for a new trial, the court ordered it marked off the ¿alendar, and that the complaint be amended by “alleginga cause of action against said defendant.” The court had power, under section 723 of the Code of Civil Procedure, to direct an amendment of the complaint upon the trial. A good cause of action was stated in the complaint, but the relation of the appellant to that cause of'action did not appear, and it was clearly competent for the court, at the trial, to correct that mistake by permitting an insertion of an allegation material to the case. The order granted is, however, too broad in terms, as it permits the plaintiff to allege any cause of action against the appellant. It should be modified by permitting the insertion of an allegation in the complaint showing that the appellant has some interest in the mortgaged premises subsequent to the mortgage, or some other material connection with the cause of action therein alleged, and, and, as so modified, is affirmed, without costs.

All concur.


text:
    George Miller, Resp’t, v. John King et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 14, 1895.)

    Appeal — Re argument .
    A reargument will be granted, where the judgment is affirmed on appeal on a different theory from that on which it was recovered at the; trial.
    Motion for reargument.

      W. A. Parshall (Lewis R Carr, of counsel), for app’lts; John W. Lyon, for resp’t.
   Brown, P. J.

— The motion for a reargument in this case must be granted. The case was tried at the circuit solely upon the theory of a breach of contract. The court ruled that the ejectment of the plaintiff from the train was not unlawful. On appeal this court apparently overlooked that ruling, and sustained the judgment on the ground that “the conductor had no right to eject the plaintiff, and that his act was unlawful.” The plaintiff should not be permitted to sustain his judgment on a different theory than that upon which it was recovered at the trial. Treating the action as one for breach of contract, the damages were excessive. No special damages were alleged or proven. The plaintiff was entitled to actual damages only, and that limited his right to recover to the reasonable expense of procuring a conveyance from the place where he was ejected to his destination. Hobbs v. Railway Co., L. R. 10 Q. B. 111; Francis v. Transfer Co., 5 Mo. App. 7; Railway Co. v. Birney, 71 Ill. 391; Fink v. Railroad Co., 4 Lans. 147-158. As the plaintiff was only a short distance from his-destination when ejected from the train, and chose to walk there instead of hiring a conveyance, and suffered no injury or loss from so doing, it is very doubtful whether he is entitled to more than, nominal damages.

The motion must be granted, with costs to abide the event.

All concur.


author: Van Brunt, P. J.

text:
    The People ex rel. Louise C. Redfield, App’lt, v. Joseph Murray et al., as Commissioners, etc., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed June 14, 1895.)

    Excise — License—Power of commissioners.
    The hoard of excise commissioners has power to reconsider their decision and grant a license, and a notice to the persons who had previously protested is not required by law or essential to the validity of the license.
    Certiorari to review a decision of excise commissioners,, granting a license.

      Robert L. Redfield, for relator; Alfred R. Page, for resp’ts.
   Van Brunt, P. J.

— In August, 1894, one Patrick Duffy made an application for an excise license for the building No. 850 Sixth avenue, in the city of New York, and complied with the requirements of the law in making such application. Protests were filed with the board of excise against the granting of the license, by the relator and others, and on the 27th of September, 1894, the board of excise rejected the application and refused the license; but on the 23d of February, 1895, without any notice to the relator, the board reconsidered their action and granted the-license. This writ of certiorari was thereupon sued out by the relator, a property holder in the vicinity, for the purpose of reviewing the action of the board of excise. The board of excise being a continuing tribunal, and having jurisdiction of the subject of granting excise licenses, and having certainly the power to have entertained a new application and granted the license, we see no reason why it could not reconsider its decision and grant the license, although it had previously refused so to do. Its powers are entirely different from those of a tribunal whose functions are exhausted by exercise. As has already been stated, it is a continuing board, having a continuous power to act upon the subject of licenses. With the propriety of the granting of the license in controversy this court has nothing to do. It can only consider the question as to whether the board was without jurisdiction in the action which it took. The only right of review given by the statute is in the case of the refusal of a license. It is claimed, however, that the reconsideration by the board of its previous action, and the granting of the license thereupon, was without authority, because it was done without notice to the relator, who, it is claimed, by the filing of a protest with the board of excise had become a party to this proceeding. But we find nothing in the statute which justifies any such claim. The law does not require the board to give notice to persons who may file objections to the granting of a license, and therefore the failure to' give such notice in respect to its action could not in any manner affect its validity.

The writ should be dismissed, with costs.

All concur.


author: O’Brien, J.

text:
    Cleveland, Lorain and Wheeling Railway Company, App’lt, v. Sheldon L. Kent et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed June 14, 1895.)

    1. Corporations — Foreign—Stockholders.
    An action to enforce the statutory liability of the stockholders of an insolvent Ohio corporation will not be entertained by the courts of this state, for the reason that the Ohio statute provides a special remedy, which is exclusive of all other remedies and can be administered only in that state.-
    2. Same.
    Where the remedy is of .such a character that it can only have effectual - operation in one forum, one interested should not be permitted to enforce it in any other place.
    Appeal from an interlocutory judgment, sustaining a demurrer to the complaint.

      Rush Taggart, for app’lt; George Zabriskie, for resp’ts.
   O’Brien, J.

— This -suit is brought for the purpose of charging the respondents and some of the other defendants with personal liability for the debts of " the Brock Hill Coal Company, a foreign corporation, organized under the laws of Ohio. It does not appear that any of the other defendants have been served with process, or have appeared in the action. The complaint alleges that the plaintiff, as well as the coal company, is a corporation organized under the laws of the state of Ohio, in which state the latter company has its chief office and place of business, and wiy engaged in the operation of coal mines, with a capital stock of $200,000, owned by the respondents and two others; that the other defendants named, . twenty-seven in number, claim to be creditors of the coal company ; that the coal company is indebted to the plaintiff in the sum of $11,419.95; that in legal proceedings in the state of Ohio a receiver of the coal .company’s property was appointed, and the court administered on all its assets, and sold and disposed of the same, and applied the proceeds to the payment of the company’s obligations, and that there still remain obligations of the company to the plaintiff and to the creditors •defendant wholly due and unpaid. It is further alleged that by the statutes of Ohio the stockholders of the coal company “ are each liable, in addition to their stock, to an amount equal to the •stock by them subscribed, or otherwise acquired, to the creditors of the corporation, to secure payment of the debts and liabilities of the said corporation ; ” “ that such individual liability of stockholders may be enforced by any stockholder or creditor by action jointly against all holders or owners of stock, which action shall be for the benefit of all the creditors of the corporation against all persons liable as stockholders.” The sections of the statute of Ohio are annexed to the complaint as an exhibit, and section •3260 of the statute provides:

“A stockholder or creditor may enforce such liability by action jointly against all the holders or owners of stock, which action shall be for the benefit of all the creditors of the corporation, and against all persons liable as stockholders; and in such action there shall be found and determined the amount payable by each person liable as stockholder on all the indebtedness of the corporation, in which adjudication no costs shall be taxed to nor collected of any stockholder to an amount which, together with the amount to be paid on said indebtedness, will exceed the amount of the stock on which he is liable.”

The prayer of the complaint is that the defendant creditors may be required to set forth and prove the amount of their respective claims against the coal company; that the court will proceed to ascertain and determine the amount of stock held by the defendant stockholders, and that after the determination of the amount of stock held by such defendant stockholders and the amount of debts owing by the coal company to the plaintiff and the defendant creditors, the court determine the amount of assessment upon the said stock that will be necessary to pay the costs of the proceeding and the debts, and that judgment be entered against the said stockholders respectively for the amount of assessment required for such purposes. The demurrer was sustained in the court below upon the case of Barnes v. Wheaton, 80 Hun, 17; 61 St. Rep. 492, which is authority for the proposition that an action to enforce the statutory liability of the stockholders of an insolvent Ohio ° corporation canno.t be maintained in the courts of this state, for the reason that the Ohio statute provided a special remedy, which is exclusive of all other remedies, and can only be administered in Ohio. We might well rest our decision, as did the court below, upon that authority, because not only is it well reasoned, but it has support in principle. The right of creditors, of a corporation against the corporators rests upon the statute, and where an obligation or liability is imposed, and a remedy is given, these should be held to be inseparable, and creditors should be required to confine their remedy to the line prescribed by the statute. The distinction between statutes which, in addition to imposing liabilities, omit a remedy, and those which impose liability and fix the remedy, is lost sight of by the plaintiff, as will be seen by reference to the cases cited in support of the complaint, most, if not all, of which are instances where a statutory right was not coupled with a statutory remedy for its , enforcement. Where, therefore, the remedy is of such a character that it can only have effectual operation in one forum, one interested should not be permitted to enforce it in any other place. Statutes relating to procedure have no extra-territorial effect. As will be seen from a reading of the Ohio statute quoted, there is a restriction in regard to costs, but such restriction could not be given effect in this state, because such subject would be controlled by our own law, and yet that restriction is an integral part of the statutory remedy.

It is urged with much force that the objections pointed out do not go to the jurisdiction of the court to entertain the action. It is true that the cases are very exceptional in which the court has not jurisdiction where the parties have been brought before it by personal service, and the subject is one upon which it is not forbidden to adjudicate. So here, as a clean-cut question of juris-diction, it may be doubted whether it would be correct to declare that, as between the plaintiff who comes into this forum and certain of the defendants who are brought in by personal service, the court would have no jurisdiction. That our courts will not in all cases entertain an action, even though it has jurisdiction, has been many times held. Cross v. U. S. Trust Co., 33 St. Rep. 149; affirmed, 131 N. Y. 330; 43 St. Rep. 254 ; Ferguson v. Neilson, 33 St. Rep. 814. It being, therefore, unnecessary to determine the question as to whether this court has or has not jurisdiction, we are clear that upon the facts presented it should not assume it, for reasons which in addition to those already stated, may be briefly mentioned. If this were an action at law to enforce a statutory liability for .a right given by an Ohio statute to an individual creditor against an individual stockholder, then this court would have and could assume jurisdiction. Where, however, an action in equity is necessary, and where, as here, what is sought is an accounting between creditors and stockholders to enforce a remedy given by the Ohio statute, in which suit it is necessary to have a marshaling of assets, and an accounting between creditors and stockholders, and a determination of the amount of liability, respectively, of each individual stockholder, such a suit, in the absence of the corporation itself, and in the absence of all those interested in the accounting, notably creditors" over whom it is not shown that the court can acquire jurisdiction, should not be maintained in this state. In such a suit all the creditors and all the stockholders of the company should be parties; but it is not alleged, nor can it be presumed, that any of the creditors or any of the stockholders are residents of this state, 'and within the jurisdiction of the court. The courts of this state are not, therefore, in a position to take and state an account of all the company’s indebtedness, determine the liability of the several stockholders, and compel the payment of each one’s quota into a common fund, and the distribution of it among all the creditors in proportion to their debts, so as to do justice, and settle once for all, in the manner contemplated by the Ohio statute, the whole liability of all the stockholders. Thus in this case, if our courts were to assume jurisdiction, let us suppose that some of the creditors, residents of Ohio, because unknown or through inadvertence, should be omitted as parties, clearly they would not be bound by any judgment rendered in this action. If to settle the liabilities of the company stockholders were held only to the extent of fifty per cent, of their liability, would not the creditors in Ohio who were not parties have a right to proceed for the purpose of obtaining the other fifty per cent, due from the stockholders ? Or, to take another illustration, if by the judgment in this court, to satisfy the claims of creditors who appeared, the entire amount of the liability of each stockholder was required to be paid, what, in such a case would be the situation of creditors in Ohio who were not parties and had no notice of the suit pending here, and who were not, therefore, bound by the judgment? Would it be claimed, notwithstanding the payment of the full amount for which the stockholders were liable under the Ohio statute, that they were still answerable to the creditors there who were not bound by the judgment ? Or, on the other hand, would it be contended that such creditors, who were without notice of this suit, and were not made parties, and who therefore were not bound by the judgment, are remediless, and not entitled to share in the distribution of the assets of the corporation?

There are some minor objections, such as the failure properly to designate the parties, a number of the defendants being described in the complaint either by corporate titles or else as partnerships. As to the corporations, it is not stated whether they are domestic or foreign, and there is no presumption that they are domestic. In respect to the partnerships, the names of the partners are not stated. And no sufficient description is given, either of the corporations or of the partners, by which they are properly brought into court. Our conclusion, therefore, is that, apart from any question of whether, strictly viewed, the court has or has not jurisdiction, the objections to assuming it in a case like this are,so many and serious that the court would not be justified in entertaining the suit; and upon this ground, in addition to the others stated to the case of Barnes v. Wheaton, supra, the judgment should be affirmed, with costs.

All concur.


author: Hardin, P. J.

text:
    Eames Vacuum Brake Company, Resp’t, v. Thomas Prosser et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    1. Contract — Reformation.
    Where a contract is as one of the parties intended to make it, the court will not reform it.
    2. ' Same.
    The modification of the contract, under which defendant sold goods for i plaintiff on commissions, and an agreement by the former to receive a gross sum of money, were held to abrogate the defendant’s right to commissions.
    3. Accord and' satisfaction — Acceptance of part.
    Where a party holds the money of another, his assertion that a less sum remitted must be received by the latter in full, does not amount to an accord and satisfaction, when accepted under express notification that the sums remitted would be credited on account.
    Appeal from a judgment in favor of plaintiff, and from an order granting it an additional allowance.

      Watson M. Rogers and John Lansing, for app’lts; Elon R. Brown and A. H. Sawyer, for resp’t.
   Hardin, P. J.

— Defendants requested the referee to find that the settlement agreement omitted a provision to the effect that they might retain commissions as agents under the agreement of January, 1877, “by inadvertence and the mutual mistake of the parties thereto.” There was, at most, a conflict in the evidence upon that subject, and there was not such a preponderance of evidence in favor of defendants as to warrant thq conclusion that the refusal of the referee to so find was erroneous. Besides, when it appears, as by some of the evidence it does appear, that the contract is as one of the parties intended to make it, the court will not reform it. Bartholomew v. Insurance Co., 34 Hun, 265; Paine v. Jones, 75 N. Y. 593. The proof in the case given to secure the reformation does not come up to the degree required by the rule laid down in Bartholomew v. Insurance Co., supra, and cases there cited. Upon the trial, evidence given to support the defendants’ averments that the agreement of May, 1883, did not express the true intent of the parties, was received, and admissible under that part of the answer which sought a reformation. Although some of the evidence was not admissible on the other issues, its admission is not such an error as requires an interference with the report of the referee. The principal issue in the case turned upon the construction to be given to the contract of settlement of .May 23,1883. Plaintiff and defendants were parties to litigation, and sought to make an amicable adjustment of the controversies, and, in the presence of experienced counsel on either side, the negotiations were brought to an end, and the instrument, prepared under the supervision of their counsel, was executed. Its terms and stipulations were matured after such discussion and deliberation. It was prepared to supersede and rescind the other contracts existing, and to produce new relations of the parties to the subject-matter embraced within its terms. We must look at the circumstances surrounding the parties, in giving construction to the language used. Defendants’ claim to commissions cannot be recognized under the contract of 1877, unless expressly or impliedly reserved by the terms of the new instrument of May, 1883. McCreery v. Day, 119 N. Y. 1; 28 St. Bep. 597. The instrument provided in terms that defendants should transfer and assign to plaintiff “ all orders received for goods and not filled in full, and to hand over and deliver on receipt thereof orders which may be hereafter received by them growing out of their connection with said business carried on by them.” Then it provides for the payment of $10,000 in cash by plaintiff, and in addition thereto a note was to be made by plaintiff for $25,452.98 on time; and, for the purpose of having security for the note, the defendants were to “collect the outstanding accounts and those for.orders unfilled at this date, and as fast as collections made to apply on said note till paid, and when note is paid the balance collected of said accounts to be paid and those not collected to be transferred ” to plaintiff. Ho words of reservation are found in the language used to describe the accounts. On the contrary, “the collections ” are to be applied or transferred to plaintiff. The defendants expressly stipulated to use all due diligence in.collecting such accounts. However, the defendants claim that the words at the close of the instrument should be construed to give them a commission of temper cent, on orders unexecuted at that date. The clause read, viz.: “All orders up to this date unexecuted to be filled through the said Prossers as sales agents, as before.” Prior to that time the arrangement of the parties was evidenced by the agreement of the 22d of January, 1877. By turning to that instrument, it is found to provide that defendants have the sales in the United States and Canada and the plaintiff was to indemnify the defendants from all suits for infringement of patents, and the plaintiff was not at liberty to sell or give any license to anyc person to use the said brake within the said territory without the consent of the defendants and payment of ten per cent, on the amount of any sales. The contract further provided in terms, viz.: “The said Thomas Prosser & Son, in consideration of said ten per cent, to be paid them as aforesaid, and as such agents, do hereby agree to use their best efforts to promote the sale of said brakes, all canvassing and advertising expenses to be paid by them.” The consideration for the ten per cent, commission is clearly defined. By the terms of the compromise or rescinding agreement, the defendants were relieved from the burdens which they had assumed as a consideration for the commission to be received for sales made by them pursuant to the'terms of the agreement of 1877. When the agreement of 1877 was abandoned by the acts of the parties, of course the defendants ceased to be sales agents, and under its terms ceased to be bound by the stipulations which cast upon them burdens, and were not required to render the “ consideration ” theretofore due from them as an equivalent for the ten per cent, commission. Under such circumstances, it does not seem to be a reasonable construction to hold that the defendants were to receive ten per cent, commission upon the unexecuted orders to be thereafter filled. The construction put upon the instrument by the learned referee seems more reasonable. JELe found : “That said agreement does not 'provide that defendants should have commissions on unfilled orders” or on “filled orders.” He also found that there was no account stated between the parties.

Plaintiff objected to the withholding of its money by the defendants, and by receiving part thereof did not forfeit its rights in the sum wrongfully withheld. Burnside v. Matthews, 54 N. Y. 80. Defendants held the moneys of the plaintiff, and by asserting that the lesser sum must be received by the plaintiff in full did not produce an accord and satisfaction. The case of Schuyler v. Ross, 37 St. Rep. 805, differs from this. There a sale had been made of bark, and the plaintiff by accepting the check admitted the measurement claimed to be correct. Hills v. Sommer, 53 Hun, 392; 25 St. Rep. 1003, was a case where a draft was sent for the amount alleged to be the balance for goods sold after deducting for the parts that were defective, and the defendants disputed the liability for any greater sum than the draft they sent, and plaintiff accepted the same as a compromise of the dispute. Here the plain t•iff did not acquiesce in the claim of the defendants, but objected to the sufficiency of the advances, and expressly notified the defendants that the sums remitted would be credited on account. Stenton v. Jerome, 54 N. Y. 480 ; Ryan v. Ward, 48 id. 204; Nassoity v. Tomlinson, 48 St. Rep. 182. There was a deficiency. The defendants retained money which, by the instrument signed by them, had been assigned to and belonged to the plaintiff, and the part payment thereof to plaintiff did not discharge the defendants’ liability. Jaffray v. Davis, 48 Hun, 500 ; 16 St. Rep. 32. The referee refused to find that defendants expended money for goods ordered, cartage, and telegrams in May, subsequent to the 19th of May, amounting to $914.92, and refused to find that defendants expended in June $408.11, and that such sums were credited on the books of plaintiff. We think such refusals were erroneous and that the evidence warranted the findings requested. Some of the evidence bearing upon the items is found in the testimony of Prosser, to the effect that he was requested to allow the goods ordered for the company to be delivered, and that all the goods and expenses mentioned in Exhibits Q and R were.delivered and received by plaintiff subsequent to May 23, 1883. Bingham’s evidence tends to the same result. The plaintiff has been allowed improperly to recover for the items referred to in Exhibits Q and B, to wit, $914.92 and interest from June 1, 1883, and $46.58 and interest from July 1, 1883. The amount of the items should be deducted from the judgment.

The affidavits and papers used at special term were such that the court was called upon to exercise its discretion as to the propriety of granting an extra allowance. Burke v. Candee, 63 Barb. 552 ; Gooding v. Brown, 21 N. Y. Wkly. Dig. 47 ; Morse v. Hasbrouck, 13 N. Y. Wkly. Dig. 393 ; Tolman v. Railroad Go., 31 Hun, 403. It is not apparent that the discretion was abused, and therefore the order should be affirmed.

Judgment and order reversed, and a new trial ordered, with costs to abide the event, unless plaintiff shall stipulate to modify the report and judgment by deducting $914.92 and interest from June 1, 1883, and $46.58 and interest from July 1,1883, in which event the judgment as so modified and the order are affirmed, without costs to either party of this appeal.

All concur.


author: Martin, J.

text:
    Ella I. Baskin, App’lt, v. Mary E. Ingalls et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    Partition — Stipulation.
    A stipulation by the parties to a partition action that the answers therein should be withdrawn and that no partition should be had of a part of the property described in the complaint, in accordance with which the judgment was entered, precludes a subsequent motion on the part of plaintiff to amend the judgment nunc pro tuna so as to include theiein a description of the withdrawn portion and to direct a sale or division thereof.
    Appeal from an order denying a motion to amend the judgment nunc pro tune by inserting therein a provision making it applicable to certain premises, and for a new interlocutory judgment directing a sale or division of said premises.

      John Gillette, for app’lt; M. J. Sunderlin, for resp’ts.
   Martin, J.

— This action was for the partition of certain real property situated in the county of Schuyler, of which Ebenezer Ingalls died seised. The plaintiff was his daughter, the defendant Mary E. Ingalls his wife, and Charles W. Ingalls his son. He devised to each one-third of the real estate of which he died seised. After the testator’s death the plaintiff commenced this action. William M. Pellett and Matilda Fiero were made defendants, and answered, denying that the decedent was seised in fee simple and possessed of the land known as the “Fiera House and Lot.” They also alleged that the lot in question was owned by the defendant Pellett in 1883, subject to a written contract to sell the same to the defendant Fiero; that subsequently he sold and assigned his interest in such contract to the testator, and conveyed to him the title to such land, subject to such contract, as a security for money: that such assignment was still in force; that the defendant Fiero had occupied the lands under such contract since it was made, and made payments thereon to the decedent, and his executors; and that the only interest the decedent or his executors had in said land was a chattel interest, as security for the payment of $700, and interest from the 16th of June, 1883. It appeared from the papers read upon this motion that after issue was joined, and while the action was pending, the defendants Mary E. Ingalls and Charles W. Ingalls, personally, and as executor and executrix of the last will and testament of Ebenezer Ingalls, deceased, Mary E. Ingalls, as trustee thereunder, and the plaintiff in this action, made and entered into an agreement whereby the matters in dispute between them were to be settled, and the lands described in the complaint divided, with the exception of 'the Fiero house and lot, and the question whether, as-between the parties, that was real or personal property, was to be submitted to Hon. O. P. Hurd, for determination. If held to be-realty, then the plaintiff was to receive one-third thereof. After this agreement was made and executed by the parties, the attorney for the answering defendants, among whom were Mary E. Ingalls, Charles W. Ingalls, William M. Pellett and Matilda Fiero, stipulated to withdraw all the answers interposed by them, consented that the plaintiff might proceed in the action as upon default, and waived notice of application for judgment. It also-appeared by the affidavits read in opposition to this motion that the Fiero house and lot were, by express agreement, to be deemed withdrawn from the action and further proceedings in the case, and it was understood that the description thereof should be regarded as stricken out of the complaint, and that no decree of partition should be taken as to it; that it was the intention and understanding of the parties that the defendant Fiero was to be-regarded as the owner of that parcel under her contract of purchase ; that no further proceedings in the action were to be taken against her on account thereof; and that the question whether the same was real or personal property, as between the plaintiff and the defendants Mary E. and Charles W. Ingalls, in the distribution of the estate, was to be determined in the manner specified. This understanding was carried out by the plaintiff by omitting from the decree herein the description of the Fiero house and lot.

It is quite manifest from the papers contained in the appeal book that, during the progress of this action, there was an understanding and agreement between the tenants in common of the property mentioned in the complaint for the settlement of the-action and the division of the property, in the manner set forth in the written contract between them. It is equally obvious that-there was an understanding between all the parties that the Fierohouse and lot were not thereafter to be regarded as a part of the property which was to be partitioned, but that Mrs. Fiero was to-have it upon the payment of the portion of the purchase price remaining unpaid, and the question to be determined by Judge Hurd was whether the amount to be thus paid was to be treated as real or personal property, in the division between the plaintiff and the defendants Mary É. and Charles W. Ingalls. Under these circumstances, it would, we think, have been both inequitable and unjust to grant the plaintiff’s motion to insert a description of the Fiero property in the judgment herein, nunc pro tune, thereby making it a part of the property partitioned, when it had been withdrawn from the action, in consideration of the withdrawal of their answers by the defendants Pellett and Fiero. Nor do we think that any new interlocutory judgment -should be granted, as to such premises, directing a sale or division thereof, as such an order would be in direct conflict with the understanding between the parties, as the same may have been found by the special term. A careful examination of the papers before us-upon this appeal has led us to the conclusion that the court properly denied the plaintiff’s motion, and that the order appealed from should be affirmed.

Order affirmed, with $10 costs and disbursements.

All concur.


author: Martin, J. Merwin, J.

text:
    In the Matter of the Judicial Settlement of the Accounts of Jacob A. Nottingham et al., as Executors of Daniel Edgar Crouse, Deceased.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    1. Appeal — Substantial bight.
    The order of a surrogate’s court in a proceeding for an accounting, refusing to strike from the record the name of a legatee whom the supreme court had adjudged to have died without issue before testator, does not affect a substantial right.
    2. Mandamus — When propeb.
    Where the surrogate, of his own motion, improperly refuses to make a. decree of distribution, the remedy is by mandamus, and not by appeal.
    8. Former adjudication — Subject-matter.
    Where two or more actions or proceedings are pending at the same time for the same cause, the judgment first entered becomes conclusive upon the parties, and is not controlled by priority in the commencement of the action or proceeding.
    Appeal from an order of the surrogate, made in proceedings, for the judicial settlement of the accounts of an executor.
    •The order appealed from contains the following provisions:
    (1) Denying the appellant’s motion to amend the proceedings for an accounting pending in that court by striking out the name of Ansel White, Jr., and his heirs, wherever the same occurred, as parties to that proceeding, upon the ground that the supreme court, in an action where all the parties to that proceeding were parties to the action, had judicially determined that Ansel White, Jr., died prior to the death of the testator, and left no lawful issue. (2) Denying the appellant’s motion to-forthwith make and enter a decree for the distribution of the residuary personal estate to and among the several persons named in said judgment as being entitled thereto. (3) Ordering the executors to take further steps to ascertain whether or not Ansel White, Jr., was actually dead, and, if dead, the time of his death, and what children, if any, he left surviving him; and directing them to pay the expenses of such search out of the estate, to an amount not exceeding $5,000, unless otherwise ordered; and adjourning the proceeding from time to time to enable the executors to comply with the terms of such order.

      William G. Tracy and Steele, De Friese & Dickson, for app’lts; William Nottingham, for resp’t.
   Martin, J.

— The first question presented is whether the surrogate’s court erred in refusing to strike out the name of Ansel White, Jr., and his heirs, wherever the same appeared, as parties to the proceeding for an accounting before that conrt. If we assume that the j udgment entered in the supreme court was binding upon the parties to this proceeding, and conclusive as to the death of Ansel White, Jr., without lawful issue, still it is not quite apparent how that fact required the surrogate’s court to eliminate from the proceedings before him the name of Ansel White, Jr., and his heirs. While the judgment of the supreme court was conclusive evidence of the death of Ansel White, Jr., without lawful issue, still the existence of that fact did not, we think, require the court to eliminate his name from the record in the proceedings before it. If, by reason of the introduction of such judgment in evidence, the surrogate’s court is bound to find that Ansel White, * Jr., died without issue, the other parties to the proceeding are entitled to the estate in the proportions stated in the judgment in the supreme court, and each of the appellants will receive his proper share as effectually as though the name of Ansel White, Jr., and his heirs had been stricken from the record. Hence we think it follows that the denial of the appellants’ motion to strike his name and the name of his heirs from the record in the proceeding did not affect any substantial right of the appellents, and consequently was not appealable. Redf. Prac. 902; Code Oiv. Proc. § 2570 ; In re Burnett, 15 St. Rep. 116.

We are also of the opinion that that portion of the order which denied the appellants’ motion to forthwith proceed with the distribution of the personal estate is not appealable. None of the parties opposed the appellants’ motion. The court refused at that time to make the decree asked for. The controversy was between the court and the parties. If the court improperly refused to proceed in the matter, and make the proper decrde, the appellants’ remedy was not by appeal, but by mandamus, to compel him to discharge his duty. If this portion of the order was reversed, it would not compel the court to proceed in the matter of the accounting, and this court should not, on this appeal, attempt to make an order in the nature of a mandamus. Hayes v. Consolidated Gas Co., 143 N. Y. 641; 60 St. Rep. 480.

This leaves for consideration the question whether that portion of the surrogate’s order which directed the executors to make further effort to ascertain whether Ansel White, Jr., was living, or, if dead, whether he left issue him, surviving and authorizing them to expend $5,000 in making such investigation, was authorized, and can be upheld. We are of the opinion that the supreme court had jurisdiction of the parties arid the subject-matter of the action brought therein, and that, as the questions whether Ansel White, Jr., was living, or had died leaving issue, were made issues in that case, and tried and determined therein, the judgment was conclusive upon all the parties to the proceeding in the surrogate’s court, and it was bound thereby. The rule that a judgment of a court of competent jurisdiction upon a point litigated between the parties is conclusive in all subsequent controversies where the same matter comes directly in question is elementary, and so well established in this state that no authorities need be cited to sustain it. Where two or more actions or proceedings are pending at the same time for the same cause, the judgment first entered becomes conclusive upon the parties, and is not controlled by priority in the commencement of the action or proceeding. Hertn. Estop. § 120. Therefore the fact that the proceeding before the surrogate’s court was first commenced does not impair the effectiveness of the judgment of the supreme court. As evidence it was conclusive as an adjudication of the same fact in an action between the same parties. Krekeler v. Ritter, 62 N. Y. 372. The supreme court having found that Ansel White, Jr., died without issue before the testator’s death, and the judgment adjudging that fact being conclusive evidence thereof, the surrogate was bound by the judgment, and there was, therefore, no necessity for that portion of the order which directed the expenditure of $5,000 of the estate in investigating a question which had already been conclusive settled by a court of competent jurisdiction. It follows, therefore, that the order appealed from, so far as it authorized the "'expenditure by the executors of $5,000 belonging to the estate, was unnecessary, unauthorized, and should be reversed.

Order, so far as it authorized the expenditure of $5,000 to ascertain whether Ansel White; Jr., died before the testator, without issue, reversed, with $10 costs and disbursements, to be paid out of the estate.

Hardin, P. J., concurs.

Merwin, J.

— I think that the appeal should not in any respect prevail. Assuming that the supreme court judgment was an adjudication binding on the parties, the surrogate’s court, under the circumstances shown, had the right, under its power to control the conduct of the executors, to require them to make further investigation to a reasonable extent, to the end that, if information was obtained that White, or any descendants of his, were alive, proper steps could be taken to obtain a modification of the judgment.


author: Hardest, P. J.

text:
    Allie Lashaw, Resp’t, v. Fred. E. Croissant, as Executor, etc., App'lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    1. Husband and wise — Services.
    Where meals are furnished and services rendered by wife to a third person, under a prior, complete and valid understanding between herself and husband, that all the proceeds thereof shall be her separate property, she is the owner of the claim therefor against such person.
    2. Witness — Section 829 oe Code.
    In an action for services rendered to a decendent by a married woman, after an agreement by her with her husband that such services should be her property, her husband is not precluded, by section 829 of the Code, as an assignor of a claim against a decedent’s estate, from testifying in her behalf to transactions with the decedent.
    Appeal from a judgment in favor of plaintiff, rendered upon a reference under the statute.

      Henry Purcell, for app’lt; Peter J. Quinn, for resp’t
   Hardest, P. J.

— On the 11th day of May, 1891, Jeannette Marcean made and published her last will and testament, appointing the defendant her executor. The will was admitted to probate after her death, which occurred on the 31st day of January, 1892. Plaintiff’s claim was verified December 9, 1892, and presented to the executor, and by him rejected, and on the 19th of December, 1893, the parties entered into a stipulation that the claim be referred, and on the 22d of December the surrogate of Jefferson county, upon the stipulation, approved the reference therein agreed to, and on the 22d of December an order was entered in the clerk’s office of Jefferson county appointing the referee to hear, try and determine. Plaintiff’s claim was for meals furnished during November, 1890, and at successive dates down to and including January 18, 1892, and for thirteen days’ attendance upon the testatrix, from January 19, to January 31, 1892. In October, 1890, the plaintiff was the wife of Peter Lashaw, and was residing with her husband about sixty rods from the residence of the testatrix, who was upwards of eighty years of age and somewhat impaired in health. According to the testimony, an arrangement was entered into between the plaintiff and her husband that she might have her services and any supplies which she might render to or furnish to the testatrix. The husband in effect agreed with the wife that he did not want anything for the services which she rendered to the testatrix, or for the meals or supplies furnished to her, and in respect to them he emancipated his wife from all claim or interest by reason of any services to be rendered or supplies to be furnished. Upon ample evidence to sustain his finding the referee found “that Peter Lashaw, the husband of this plaintiff, at or about the time of the making of said contract, consented that his wife, the plaintiff, might furnish, prepare,' cook, and„delivcr to the said Jeannette Marcean said meals, and whatever she could get on account of the same would be her property, and whatever arrangements she made with reference thereto would be her own.” A similar finding was made in respect to the services she should render for the testatrix. The referee also found “that the plaintiff, pursuant to such request and contract, stayed with and took care of the said Jeannette Marceau from that time until her death, January 31, 1892, — thirteen days; that the value of her services for said thirteen days was thirteen dollars.’’ He also found that the plaintiff delivered to the testatrix, at her house, 720 meals, and that the value of the same “ was seventeen cents each, amounting to $122.40.”

The findings of fact which have been quoted above are chai lenged as being against the weight of evidence. After a careful perusal of the evidence, and weighing all the circumstances relating to the matters stated by the referee, and giving due weight to the contradictory evidence, we are of the opinion that the conclusions of the referee, upon the evidence, should be sustained. While the defendant produced some contradictory evidence, and some facts and circumstances tending to challenge the evidence of the plaintiff, we are of the opinion that the referee properly judged as to the weight of the evidence, and that his conclusions should be sustained upon a view of the whole evidence found in the appeal book. While we recognize the force of the rule laid down in Smith v. Insurance Co., 49 N. Y. 211, we are of the opinion that the findings of the referee in the case in hand are not “against the clear weight of the evidence.” In Roe v. Roe, 14 Hun, 613, it was said:

“Upon a review of a trial by the court or a referee, the findings are not conclusive, but the whole evidence is open to.examination by the appellate court. The appellant is at liberty to show that the findings are wholly unsupported by the evidence, or that they are against the weight of evidence, or that they are erroneous in any other respect.”

Where the review of the facts by an appellate tribunal is proper, it is under no obligation to arbitrarily adopt the conclusions of the trial court; yet-great consideration will be accorded to its opinion, especially where there is evidence on both sides, and the mind of the court has been called upon to weight conflicting statements and inferences, and to decide upon the credibility of opposing witnesses. In reviewing the determination of a trial court in such a case, the appellate court is not warranted in reserving upon the sole ground that in its opinion the trial court should have reached a different conclusion. To justify such a course, it should appear that the findings of the trial court were against the weight’ of evidence, or the proof so clearly preponderated in favor of a contrary result that it can be said with reasonable certainty that the trial court erred in its conclusion. Westerlo v. De Witt, 36 N. Y. 340; Crane v. Baudouine, 55 id. 256 ; Sherwood v. Hauser, 94 id. 626 ; Baird v. Mayor, 96 id. 567 ; Lowery v. Erskine, 113 id. 52; 21 St. Rep. 917 ; Devlin v. Greenwich Sav. Bank, 125 N. Y. 766 ; 35 St. Rep. 922; Barnard v. Gantz, 140 N. Y. 249; 55 St. Rep, 541 A full consideration of the evidence does not lead us to the conclusion that the referee committed an error in his conclusions upon the whole, body of the evidence before him.

2. Undoubtedly, in the absence of any agreement, the meals delivered and services rendered would give rise to a cause of action in favor of the husband, although the meals were delivered and the services rendered by the wife, upon the theory that all her services and earnings belong to her husband, and that he can maintain an action to recover therefor. Reynolds v. Robinson, 64 N. Y. 589, Where the husband and wife are living together, he may appropriate the fruits of her labor, and in the absence of circumstances showing her intention to avail herself of the privilege conferred by the statute concerning the rights and liberties of married women, his common-law right is unaffected. Birkbeck v. Ackroyd, 74 N. Y 356. In Blaechinska v. Howard Mission, etc., 130 N. Y. 503; 42 St. Rep. 387, in appointing out the relations of husband and wife and her rights and privileges, Yann, J. stated:

“When she worked for a stranger, it was on her sole and separate account,'and the enabling act protected her contract. When she worked for her husband, it was on his account, and the statute did not apply.”

The case of Coleman v. Baur, 93 N. Y. 18, was one where the services were rendered in administering a duty which the husband owed to an inmate of his family, and was not a case where she made a claim for services furnished to a third person, and is therefore unlike the case in hand. We think the facts in this case, as well as the finding of the referee, are to the effect that before the materials used in the meals were supplied, and before the services were rendered, the' wife had become the absolute owner thereof; and the case therefore differs from Stamp v. Franklin, 144 N. Y. 607; 64 St. Rep. 251, as in that case it was said:

“But, moreover, we think there was not sufficient evidence to have justified the jury, if the question had been submitted to them in finding the claim belonged to the wife, and not to the husband. * * * The most, we think, which the evidence tends to establish, is that the husband authorized payment therefor to be made to the wife. This did not vest in her legal title to the claim, assuming that under the statute of 1860 an agreement by the husband that the title to the board money should vest in her would be valid.’’

. In the case in hand the evidence warrants the conclusion that before any of the meals were delivered, or any of the services rendered, there was a complete and valid understanding between the plaintiff and her husband that all the services which she would render, as well as all the materials which she should supply to the testatrix, should be for and upon her separate account, and in effect that she should become the owner of any and every indebtedness which should accrue against the testatrix. Under such circumstances we think that the plaintiff was the owner of the claim presented against the estate of the testatrix, and that the referee committed no error in awarding a recovery in favor of the plaintiff. The husband was called as a witness, and substantiated the agreement alleged to have been entered into between himself and his wife, and the course of the trial was such that he was bound by the agreement; and when the testatrix’s estate- pays for the meals and services rendered to the plaintiff, liquidating the judgment in this case, there can be no claim asserted by the husband therefor. The plaintiff’s right of recovery does not rest upon an assignment of the claim or cause of action after it accrued; and we think, therefore, that the plaintiff is not in the situation of an assignee of the claim, and that the husband was notan incompetent witness ender section 829 of the Code. We think the observation of Haight, J., in Burley v. Barnhard, 9 St. Rep. 591, is applicable to the case before us.

He there said:

“The claim of the plaintiff was not derived through her husband. It is for servies which she performed for the deceased on her sole and separate account, which she had the right to do under the statute, and consequently Edwin Burley was not an interested party, and prohibited from testfying under section 829 of the Code of Civil Procedure."

That case was approved in Sands v. Sparling, 82 Hun, 403; 63 St. Rep. 558; and in the course of the opinion delivered by Put-man, J., upon the question of the competency of the husband to testify under circumstances quite similar to those disclosed in the case in hand, he observed:

“But the witness was not the assignor of the claim against deceased under which the action was brought. He never had any legal interest in such claim. Under the evidence in the case the plaintiff was the only person who ever had any demand against the deceased; hence, the provisions of section 829 of the Code of Civil Procedure did not apply. Burley v. Barnhard, 9 St. Rep. 587; Porter v. Dunn, 40 St. Rep. 776; 16 N. Y. Supp. 77.

Some exceptions were taken to rulings made by the referee which have received attention, and we are of the opinion that none of them require us to interfere with the result reached by the referee.

Judgment affirmed, with costs.

All concur.