text:
    Johannah Sheldon, Resp’t, v. William B. Sheldon et al., Ex’rs, App’lts.

      (Court of Appeals,

      Filed April 12, 1892.)

    Monet had and beceived—Tbtjst—Payment—Limitation.
    Plaintiff’s husband died in 1880. In 1881, the executors published for claims. In 1883 they paid her the amount of a fifty dollar note with interest. In 1884 a final decree settling the estate .was made and they paid her a. legacy of $7,000, in full, and in 1887 for the first time she made a claim that in 1864 she had given her husband $768, on an understanding that he-should invest it for her benefit and account to her therefor when requested. In 1866 plaintiff had executed a satisfaction of a mortgage for $380 and another in 1868 for $300. There were several witnesses who testified to. conversations with the husband in which he stated that he held moneys belonging to his wife, but did not identify it as the money in question,. Held, that no agreement was proved between plaintiff and h( r husband creating a special trust in the husband at the time of his death sufficient to take the claim out of the statute of limitations.
    (Andrews and Matnard, JJ., dissent.)
    Appeal from judgment of the supreme court, general term, fifth department, affirming interlocutory judgment entered upon, findings of the court at special term, order confirming referee’s report and .judgment entered upon report of referee.

      Theodore Bacon, for app’lts; Arthur G. Smith, for resp’t.

       Reversing 33 St. Rep., 754.

   O’Brien, J.

The plaintiff is the widow of Edgar Sheldon, defendants' testator. She brought this action to procure an accounting by the defendants, as executors of her husband, for moneys alleged to have been received by him in his lifetime for the plaintiff’s use, and under an agreement to invest the same for her benefit and to account to her, when requested, for such moneys and all accumulations thereof. There was an interlocutory judgment in her favor which determined the principal questions. This was followed by a reference to take and state the account and a final judgment which determined the amount of the plaintiff’s claim. Both of these judgments and all intermediate orders are here for review upon the defendants’ appeal. It has been found by the trial court that on the 7th of November, 1864, the plaintiff was the owner in her own right of certain real estate in the state of Michigan. On that day she conveyed the land by deed, in which her husband joined, for the consideration of $768, which was paid by the grantees in the deed to the husband. That it was received by him upon an understanding and' agreement with the plaintiff, his wife, that he should control and invest the same for her benefit, and that he should, when requested, account to her for the same and whatever increase there might be from investments thereof. That the husband died November 4, 1880, without ever having accounted to the plaintiff for the money or any part thereof, and that no demand for. such accounting had ever been made by the plaintiff in the lifetime of her husband. That a short time before the commencement of this action, on the 24th of April, 1886, the plaintiff presented to the defendants, as executors of her husband, her claim arising upon these facts, and demanded payment thereof, and the defendants rejected the same and refused to refer it under the statute providing for the determination of such claims.

The final judgment awarded to the plaintiff the principal sum received by the defendants’ testator for the land, and simple interest thereon from the time it was paid to him. The defendants, besides putting in issue all the material allegations of the complaint, interposed three separate affirmative defenses, namely, the six years statute of limitations, a judicial settlement of the accounts of the executors without any claim made by the plaintiff on account of this transaction, and the payment of a legacy of $7,000 to the plaintiff by them bequeathed to her in the testator’s will. Payment generally was not pleaded as a defense. There is no doubt as to the fact that the testator became indebted to the plaintiff in 1864 by reason of the receipt of the money which was the proceeds of her land. At least that fact is not the subject of controversy in this' court. The only question is whether the claim existed against the husband as a valid obligation at the time of his death, and if it did, whether it was barred by the statute of limitations. The legacy given to the plaintiff by the will of her husband did not operate as payment. The will contains no words from which any intent can be inferred or found to extinguish any pre-existing debt by means of the bequest. It was an absolute gift, apart from anj^ debt due by the testator to his wife, and. no debt is even mentioned or referred to in the will. A legacy to a creditor is not to be deemed in satisfaction of his debt unless so intended by the testator. Clarke v. Bogardus, 12 Wend., 68; Boughton v. Flint, 74 N. Y., 482; Phillips v. McCombs, 53 id., 494; Eaton v. Benton, 2 Hill, 576; Williams v. Crary, 4 Wend., 449. In this case no such intent was found or established. This is, no doubt, what is known to the courts as a stale demand, and such demands, it is needless to say, are looked upon with some suspicion. A claim, surrounded by circumstances such as appear in this record, ought to be 'sustained by adequate and satisfactory proof. But the presumption against a stale claim is generally one of fact and not of law. The circumstances are evidence upon the question of the existence of the claim, to be considered by the jury or the court upon a trial of the facts. Macaulay v. Palmer, 125 N. Y., 742; 36 St. Rep., 175. If the finding in this case was that the husband had simply received the wife’s money for her use, to be paid to her upon request, -the’claim would be barred by the statute of limitations. Mills v. Mills, 115 N. Y., 80; 23 St. Rep., 604; Code; § 410. But the 'finding contains an additional element which is relied upon to take the case out of the statute. Boughton v. Flint, 74 N. Y., 481.

It was further found that the money was received by the husband “ upon an understanding and agreement with the plaintiff, his wife, that he should control and invest the same for her benefit, and that he should, when requested, account to her for the said money and whatever increase there might be from investments thereof.” In an action for money had and received the plaintiff could recover upon proof of the receipt of the money, unless the defendants proved payment or defeated’ the claim by pleading the statute of limitations. But it is obvious that the finding above referred to cannot be sustained upon such proof as would warrant a recovery for money had and received. The plaintiff must go farther and prove not only the receipt of the money, but that it was received upon the special agreement found. The plaintiff’s claim was that her husband received -the money upon a trust of indefinite duration to control, manage and invest the money and account for it with all accumulations upon request, and that this trust or agency was created by express agreement between the parties. ■ The only question that is open for consideration in this court is-whether this important part of the finding is based upon evidence. There are some undisputed facts that are entitled to considerable weight at the outset in a review of the evidence, for it must -be reviewed, in order to determine whether a finding upon which the' judgment is ■ based is sustained by evidence.

On the 25th of January, 1883, the executors of the husband paid to the plaintiff a claim made by her of $62.76, the amount of a note of fifty dollars with interest, dated June 2, 1879, at Climax, Michigan, “ for value received in cash borrowed.” It has been held that the giving of a promissory note is prima facie evidence of an accounting and settlement of all demands between the parties, and that the maker was' indebted to the payee upon such settlement to the amount of the note. It may be that this presumption does not apply in this case, as the consideration of the note is stated to be money borrowed, but the whole transaction connected with this note had an important bearing on the claim in question. Lake v. Tysen, 6 N. Y., 461. Up to this time, the plaintiff had given no intimation of the existence of the present claim. In July, 1881, the statutory notice to present claims against the estate was published.

In January, 1883, citations were issued for a final settlement of the account of the executors, to be had in February, and in July following a final decree settling the estate was made which recites the appearance of all parties. The plaintiff was paid her legacy in full, but she gave no intimation of the existence of this claim till nearly three years after the final decree was made. It was shown, and is not disputed, that on November 24, 1864, one of the plaintiff’s grantees of the Michigan land executed to her a mortgage for $380, substantially one-half the purchase money. In 1866 the plaintiff executed and acknowledged a discharge of this mortgage. On the 28th of November, 1864, one Gage executed another mortgage to the plaintiff for $300. The plaintiff signed and acknowledged a discharge of this mortgage in February, 1868. These papers, signed by the plaintiff, contained the statement that the mortgages were “paid and satisfied in full.” The courts below have held substantially that all this does not prove that the money paid to the plaintiff upon these mortgages was the same money that her husband received, or that it was paid on that account, or actually received by her. When the mortgagee signs an instrument, acknowledging payment of the mortgage, the instrument would prove, prima facie, that the person who executed it received the money. Though the circumstances are quite persuasive that the amount paid on these two mortgages was part of the sum received by the plaintiff’s husband, yet we cannot say that the trial court was bound, as matter of law, to deduce that conclusion from the evidence. The first piece of evidence produced to prove the agreement found was that of an attorney in Michigan, who, at the age of sixty-five, testified by commission in 1886 to remarks made and conversations had with the defendants’ testator in 1864. The transaction resulting in the sale of the plaintiff’s land seems to have taken place at his office, but all he could swear to, which was pertinent to the question now in hand, was that the deceased told him that all lands standing in his wife’s name belonged to her. That the avails belonged to her when sold, and that he desired that she should have the benefit of it at his death, if not before.

Two other witnesses examined in the same way testified generally that the deceased told them in Michigan that his wife had money and that he was using and investing it for her. These witnesses were seventy-seven years old. One of them swore that the conversation was had with the deceased sometime before 1864 and between 1857 and 1863. It could not, therefore, relate to the money in question. The other witness who had a separate conversation did not fix its date. Another witness, who was the wife of the nephew of deceased, testified to a conversation which she heard between her husband and the deceased in Philadelphia, in 1876, to the effect that the deceased said to his nephew that he wanted to go to Saginaw to make some investments in some property, that the money of his wife had been liberated, though the amount was not stated at that time. Subsequently and in ■ other conversations, one of which was a few months before his death, the deceased spoke of a sum of money he had invested for his wife which had doubled, and the sum of $4,000 was mentioned. The mother of this witness also testified to conversations with him in 1876 and in 1878. She says that the deceased told her in 1876 that he had $3,000 of his wife’s money to invest which was uninvested. That he had made considerable for her by investments, but that was a sum which had been returned. The conversation of 1878 was in Chicago when the deceased was sick. She says that the deceased told her he had $3,000 of his wife’s money. That he wanted to build and furnish a house for her and felt bad that it had not been done, because he feared that was his last illness. That it was money his wife gave him to invest for her. Another witness residing in Michigan, examined upon commission, testified that in 1880 he saw-the deceased at a hotel in Chicago and applied to him for a loan of $1,000. The deceased, in declining to make the loan, said that he had $1,000 loaned out which belonged to his wife which would soon be paid in.

After a careful examination I find no other evidence in the record bearing on the question, and no other is referred to on the briefs of counsel. It all consists of admissions alleged to have been made by the deceased, a dangerous and unreliable species of evidence at best, but even if accepted in its full length and breadth, it does not prove the important fact found in this case, namely, that in 1864 an agreement was made between the plaintiff and her husband by which a special, trust duty or agency was imposed upon the husband with respect to this specific $768, and that an obligation to account under this indefinite trust existed against the husband at the time of his death. The admissions testified to do not prove the agreement, and they are all consistent with its absence, and the admissions are not necessarily connected in any way with the transaction in question. •

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

All concur, except Andrews and Maynard JJ., dissenting.


source: Caselaw Access Project

author: Peckham, J.

license: Public Domain

text:
    Francis A. Drexel et al., Resp’ts, v. Eliza A. Pease, Ex’rx, Impl’d, Def’t. George St. Amant, App’lt.

      (Court of Appeals,

      Filed April 12, 1892.)

    1. Lien—On mebchandisb fob advances.
    One D, a packer, St. A., the purchaser in France, and defendant Pease in New York were engaged in a joint enterprise for the shipment and sale of sardines, and after payment of expenses the profits were to he divided equally among them. Plaintiffs, with knowledge of the arrangement, ad-0 vanced money on the. sardines upon letters of credit under an agreement in which Pease said, “And I further pledge to you as security for any other indebtedness of my firm to you any surplus that may remain either in the goods or the proceeds thereof, after providing for the acceptances under this credit.” Meld, that plaintiffs had no general lien on the sardines as against the equitable title of St. A. to secure them for other and prior indebtedness of Pease’s firm upon letters of credit issued by plaintiffs at request of Pease to other parties.
    2. Same—Estoppel.
    The letters of credit issued to St. A. provided that the drafts should be drawn in Prance “for the cost of the merchandise to be exported to an Atlantic port, and advice thereof to be given to (plaintiffs) the advice to be accompanied by abstract of invoice and bills of lading to our order.” St. A. drew for only forty per cent of the cost, which represented the amount to be paid by Pease. Held, that this did not vest the full ownership in plaintiffs, por did the wording of the agreement give foundation for the inference that the drafts must represent in all cases the full amount of the cost, and there was a clear notice to plaintiffs that sixty per cent had not been drawn for, and that some one else was interested to that extent.
    Appeal -from a judgment of the supreme court, general term, first department, affirming interlocutory judgment in favor of plaintiffs rendered at special term.

      Oliver J. Wells, for app’lt; F. 8. Bangs, for resp’ts.
   Peckham, J.

The judgment in this action gave plaintiffs a specific lien on the merchandise (principally sardines) upon which they made advances, up to the full amount of those advances. In addition to the specific lien the judgment awarded the plaintiffs a general lien upon the surplus in the merchandise or the proceeds thereof remaining after providing for the payment of their advances as security for the other indebtedness of Pease’s firm to the plaintiffs.

St. Amant, one of the defendants herein, is dissatisfied with the latter provision in such judgment. The cause of his dissatisfaction lies in the fact that he has an equitable title to and interest in this merchandise, which is as he claims superior to any lien of the plaintiffs thereon, excepting the specific lien for the advances .actually made on such merchandise’by the plaintiffs.

The agreement by which Pease gave to plaintiffs a specific lien on all merchandise to an amount equal to the sum advanced on the same by plaintiffs, as stated in such agreement, is one with which no fault is found by any of the parties hereto, and no one disputes plaintiffs’ rights as regards their lien on such merchandise to the extent above indicated.

The trouble comes by reason of the clause in the agreement with the plaintiffs with reference to all the letters of credit, in which Pease says: And I further pledge to you as security for any other indebtedness of my firm to you any surplus that may remain either in the goods or the proceeds thereof, after providing for the acceptances under this credit. The sardines which made up the greater part of the merchandise in question on this appeal, were procured pursuant to the provisions of a contract which was under consideration by us on an appeal in this action from that part of the judgment which adjusted the conflicting claims of the «defendants between themselves upon the merchandise or the proceeds arising from a sale thereof.

Upon that appeal we held that under this contract one Dumagnou, who was the packer of the sardines, together with St Amant, the one who made, the purchase in France, and the defendant Pease were engaged in a joint enterprise for the shipment and sale of these sardines, and, after payment of expenses, the profits were to be divided equally between them. We also held that St. Amant (to whom Dumagnou assigned his interest) had an equitable title to the merchandise which was superior to that of the individual creditors of Pease, and that such equity-attached to the funds in the receiver’s hands, which were the proceeds of the sale of such merchandise. Drexel v. Pease, 129 N. Y., 96; 41 St. Rep., 236. The question now to be determined is‘whether; such equitable title is not also superior to the general lien of the plaintiffs. Can plaintiffs hold the merchandise for any sum 'other than the advances made by them on its security ? If all the facts were known to plaintiffs or their correspondents in Paris at the time when the latter advanced the money on the sardines, it is plain that they would have a specific lien thereon up to the amount of their advances on them, and I think it equally plain they would have no general lien thereon as against the- defendant St. Amant to secure plaintiffs for other and -prior indebtedness of Pease’s firm upon letters of credit issued by plaintiffs at request of Pease to other parties. At least they would have no such lien upon anything more than the share of Pease in the goods. This would be so because the other interest or shares in the merchandise would hot belong to Pease, and as the plaintiffs, under the supposition, would be aware of that fact, the agreement of Pease to give plaintiffs á general lien for other and prior indebtedness not incurred upon the faith of the merchandise, upon an interest therein which they knew he did not own, would be worthless as against those who did own such interest and had not consented to such lien. '

The history of the “ other indebtedness ” which plaintiffs desire to hold the St. Amant merchandise as security for, is in brief this: The defendant Pease had different correspondents in Europe, wholly disconnected with each other, who were purchasing merchandise for him at different places. At about the time of the issuing of the letters of credit to St. Amant, of Paris, by plaintiffs at request of Pease, the plaintiffs also upon like request issued letters to the firm of C. Richard Colin & Co., of Bordeaux.

The- latter purchased merchandise,- drew drafts upon Drexel, Harjes & Co. in payment for the cost thereof, and gave invoices and bills of lading to plaintiffs’ order in the same manner as in the case-of St. Amant, and plaintiffs advanced the money upon such merchandise on the faith thereof, and on the invoices and the bills of lading to tbéir order. In the case of the Cohn merchandise the plaintiffs will be unable to get back the full amount of their advances thereon unless they are allowed a lien on the surplus of the St. Amant merchandise after paying their advances made thereon, and before any other claim upon such surplus is allowed. This is claimed by plaintiffs by virtue of the agreement for a general lien above referred to.

Plaintiffs’ advances upon the merchandise purchased under the Cohn letters of credit were not made on the faith or credit of the merchandise purchased under letters issued to St. Amant, and as it does not appear that the latter was aware that Pease had attempted to pledge his (St. Amant’s) property as security for Pease’s general indebtedness, it cannot be argued that St. Amant consented to such pledge when he used the letter of credit to raise funds to pay Pease’s share of the purchase money for the sardines. The plaintiffs, however, claim there are facts (not yet stated) which form an equitable estoppel preventing the defendant St Amant from setting up hjs title to the merchandise as against the plaintiffs, and under which the plaintiffs are entitled to claim their general- lien upon it. The plaintiffs state that the letters of credit issued by them to both St. Amant and Cohn upon request of Pease, and which constituted the only authority for St. Amant’s or Cohn’s drafts upon Drexel, Harjes & Co., of Paris, who were plaintiffs’ correspondents and agents herein, provided that the drafts should be drawn.in France “for the cost of the merchandise to be exported to an Atlantic port, and advice thereof to be given to Messrs. Drexel, Harjes & Co.; the advice to be accompanied by abstracts of invoices and bills of lading to our order.” St. Amant, instead of drawing for the full and entire cost of the merchandise, drew only for forty or fifty per cent thereof pursuant to the contract above mentioned between him and Pease, and the provisions of which have already been construed by us on the former appeal herein.

This forty per cent represented only the amount - of the cost which was to be paid by Pease, the balance of such cost in the case of the sardines being paid by and divided between Dumagnou and St. Amant, the latter paying forty and the former the remaining twenty per cent. The court found that “St. Amant on receiving invoices of said goods from Dumagnou, advanced thereon eighty per cent of the amount of said invoices, and thereafter delivered the bill of lading arid invoices to Messrs. Drexel, Harjes & Co., and received their acceptances for forty per cent of the invoice value of. the merchandise, the cost of stamps and certificates being in some cases added.” This was pursuant to the agreement between plaintiffs and Pease, by which it was provided that the parties to whom the letters were issued and who purchased the merchandise, should when the drafts were drawn give advice thereof to Drexel, Harjes & Co., and the advice was to be accompanied by abstracts of invoices and bills of lading to plaintiffs’ order, remaining bills of lading with certified invoices and consul’s certificates to be sent to plaintiffs direct by vessel.

From these facts the plaintiffs claim that St. Amant by his own act vested the ownership of the property in the plaintiffs and under such circumstances as were equivalent to- a representation by him that any claim of his for the cost of merchandise had been satisfied. St Amant cannot, as plaintiffs claim, be now permitted to prove as against them that the transaction was not a sale and. delivery of the goods, or that the acceptance and payment of the drafts drawn on them or their agents by St. Amant did not constitute a full payment of the whole cost of such merchandise. They also say that Pease’s right to pledge the merchandise generally for all his indebtedness "to plaintiffs is beyond question if his ownership were -conceded or proved, and St, Am-ant is bound to concede such ownership as to. the plaintiffs in view .of his tacit representation that the drafts were for the cost (meaning the full cost) of the merchandise.

We think this claim is inadmissible.

The cases in regard to the vesting of the title to property in the bankers or others who advance money upon such property and take bills of lading therefor to their order, do not go the length necessary for the plaintiffs here.

As stated -in those cases the doctrine is that where a commercial correspondent advances his own money or credit for a principal for the purchase of property for such principal and takes the bills of lading in his own name., looking to the property -as security -for reimbursement, such correspondent becomes the owner of the property instead of the pledgee up to the moment when the original principal shall pay the purchase price, and the correspondent occupies the position of an owner under a contract to sell and deliver when the purchase price is paid. This doctrine is stated in Moors v. Kidder, 106 N. Y., 32; 8 St. Rep., 877, and founded upon the cases cited by Finch, J., in that case. Nothing therein gives color to the idea that the correspondent’s ownership is of that character which would permit' hisi exaction, even though agreed to by the principal, of a ’general lien upon the property for other and prior indebtedness of the principal as against one in the situation of St. Amant. The correspondent’s position is one of ownership so far only as is necessary to secure him for the advances be made upon the merchandise described in the bill of lading, and in such a case as this he is bound to sell upon receipt of the purchase price from the principal, or in other words upon receipt of the amount he advanced upon its credit. In no other sense is the correspondent the owner of the property.

Nor does the wording of the agreement - as to the drawing of the drafts for the cost of merchandise give foundation for the inference that the drafts must represent in all cases the 'full amount of such cost.

The language does not bear such interpretation. Its meaning plainly is to limit the amount for which the draft is to be drawn by the cost of the merchandise against which it is drawn and upon which the advance is to be made. It must not in any event be for more than such cost and it must be on account thereof. Within the limits of the full amount of such cost the draft may be drawn for any sum, so long as it is on account of the cost and for no other consideration.

That this was the understanding of the parties is~also plain. St. Amant advanced -in the first instance but eighty per cent, of the cost of the sardines, and he then took the invoices of the merchandise to the Paris correspondents of the plaintiffs, and obtained their acceptances for only forty per cent, of the invoice valve 'of the goods. There was in such transaction a clear notice to the plaintiffs’ correspondents that sixty per cent of the value of the merchandise had not been drawn for, and that there must be some one interested in the merchandise not represented by the draft for but forty per cent of its value.

The practical construction given to the contract by the parties thereto is at war with the claim now made by the plaintiffs.

If it be assumed, however, that the plaintiffs’ later construction is the correct one, and that the drafts drawn by St. Amant operated as an implied representation that they were for the full cost of the merchandise, I do not see that the plaintiffs’ position is favorably affected even upon such assumption. They did not alter their position with regard to the Cohn indebtedness already incurred by reason of any representation expressed or implied in regard to the St. Amant merchandise.

There is no reason why the fact of St Amant’s interest in the merchandise should not be asserted as against a claim of plaintiffs for a general lien thereon to secure them for the payment of other and prior indebtedness arising out of another transaction with another person, and which was wholly unconnected with and entirely separate from such merchandise and all representations in regard thereto.

It is too plain for discussion that the plaintiffs in fact made no advances to Cohn upon the faith of merchandise which might or might not thereafter be purchased by St. Amant. The advances they made Cohn were made upon the faith of the merchandise he purchased, and which he transferred to them when their agents accepted his drafts and took the invoices and bills of lading for such merchandise in the names of the plaintiffs. Whether St Amant would ever thereafter purchase -another dollar of merchandise for or on account of Pease and come to Drexel, Harjes .& Co. with drafts for any part, or the whole of the cost thereof, was something of which plaintiffs were of course wholly ignorant. It is idle to say that under such circumstances any advances to Cohn were made upon the. faith of property which plaintiffs or their Paris agents knew nothing of and which St Amant might never purchase, and which if he did purchase they were to make advances on to him at the time he would draw upon their agents.

It is equally plain that the only advances made to St Amant were made in payment of the drafts drawn for but forty (in some cases fifty) per cent of the cost of that particular merchandisa They have been repaid those advances.

The agreement for a general lien in favor of plaintiffs upon the St Amant merchandise to secure them for their prior advances on the Cohn merchandise has no basis to stand upon when opposed to the equitable title of St. Amant As the plaintiffs parted with no value beyond the amount for which they have a specific lien on the merchandise, there is no reason why St Amant should not be permitted to now show the truth, even as against his prior implied representation. The plaintiffs in answer to this statement claim that under their agreement with Pease they in legal effect did make advances to Cohn in part at least upon the faith of •the merchandise purchased by St. Amant. ■ They say that in view of the agreement for a general lien every draft paid by their correspondents, which was drawn by St. Amant or Cohn, constituted an advance made by plaintiffs without reference to the particular letter of credit upon which the draft might be drawn, and that the consideration was three-fold. (1) Pease’s engagement to repay; (2) the engagement that the merchandise purchased should stand as security for the repayment of the particular draft drawn against it; (8) the engagement that the merchandise-should- stand as security for any other indebtedness of Pease,, including a prior one.

There is no doubt of the validity, of the agreement for a general lién as between the parties -to it. The consideration was sufficient, and if the plaintiffs had in fact made the advances to Cohn, not. only upon the faith of the merchandise purchased by him and upon his-delivering the invoices and bills of lading to plaintiffs’order, but also upon the faith of merchandise^ already purchased by St. Amant, it might perhaps be claimed on their- part that plaintiffs were entitled to t-heir general lien upon the St. Amant. merchandise as security for their claim by reason of the loss on the Cohn merchandise. This is not the case, however, and a discussion of the rights of the parties upon that assumption is beside the question. The Cohn indebtedness had no connection with the St. Amant merchandise.

The judgment must, therefore, be' modified by deducting from the amount of the plaintiffs’ recovery the amount of the-deficiency ■arising upon the Cohn merchandise,’ being $2,249.79, with interest from-the time of the entry of such judgment, and also by reducing the extra allowance to the amount of five per cent on the plaintiffs’ modified recovery, and the defendant St. Amant is - entitled to recover his costs of appeal as against the plaintiffs-herein. ■ .

All concur.

       Modifying 32 St. Rep., 853.


author: Barnard, P. J.

text:
    Daniel D. Cox, App’lt, v. James Dwyer, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    Arrest—False representations.
    An order of arrest granted on the ground that defendant, had procured money from plaintiff on false representations as to the business which he sold him is properly vacated where it is shown that plaintiff watched the business for a week after such representations were made, and paid the money with full knowledge of the amount of the earnings
    Appeal from order vacating an order of arrest.

      Benjamin W. Downing, for app’lt; James F. Pendleton, for resp’t.
   Barnard, P. J.

An order of arrest was granted on the 10th of August, 1891, against the defendant upon the ground that he had obtained $500 by fraud from the plaintiff. The defendant made a motion upon affidavits to vacate the order, which was done. The order of arrest was properly vacated. The defendant advertised for a sale of part of his restaurant business. The plaintiff avers that the defendant stated that he owed nothing and was doing a business of fifty dollars per day. That there was a mortgage of $325 on his fixtures. The plaintiff attempted to prove that the defendant owed a butcher for meat. The allegation is made upon information and both the defendant and butcher deny the fact. The plaintiff found an old mortgage on the property which is proven to have been paid. The whole case rests, therefore, upon the statement of daily earnings. The defendant says that he said the average earnings wore fifty dollars. The defendant’s affidavits show that the plaintiff watched the business after this statement as to earnings, and was very often at the place of business between May 20th when the alleged statement was made, and May 28tli when the money was paid. The average was about thirty-five dollars per day. The fact that the plaintiff after full knowledge ¡laid the money shows very clearly that the statement was not of a certain sum of earnings every day. If a jury should find fraud in the case made the evidence would not be sufficient to support the verdict. There is no other way but to vacate the order.

The order vacating the order of arrest should be affirmed, with costs and disbursements.

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


text:
    Edward Burnes, Jr., by Guardian, App’lt, v. The Staten Island Rapid Transit R. R. Co., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    Bailroad—Negligence.
    Plaintiff was injured by one of defendant’s trains while trying to save a child which had got upon the track. It appeared that the line of vision extended to a plaster mill which was between 250 and 800 feet from the place of the accident; that the danger signals were given at a distance of 350 feet, and the brakes applied as soon as plaintiff attempted to go on the track, but the train could not be stopped in time to prevent the accident. Held, that the proof of the engineers negligence was insufficient.
    Appeal from judgment of non-suit
    Action to recover for injuries alleged to have been caused by defendant’s negligence.

      Wm. M. Mullen, for app’lt; Tracy, McFarland, Boardman & Flail, for resp’t.
   Barnard, P. J.

Mo negligence upon the part of the railroad company, defendant, was proven. A passenger train going west, consisting of a locomotive and seven passenger cars and at a speed of eighteen or twenty miles an hour, struck the plaintiff and injured him. The boy was a brave boy and was hurt in an attempt to save a smaller boy,, being only some four or five years old^who had thoughtlessly got upon the track. The train had passed Jersey street, which is a highway crossing, and had sounded the signal required by law for a highway crossing. It is about fifteen or sixteen hundred feet from Jersey street to the place of the accident, and there is no intervening highway crossing. People were accustomed to clamber down a steep bank of about twenty feet, to the railroad track and then go across it to the water. The approach of a train going west to the boy was around a curve some 800 feet away and the vision of the track was cut off- until the curve was turned. The whistle was blown on rounding the turn and again when the train got around it. The danger signals were sounded before Burnes, the plaintiff, started to go across the track. The line of vision extends to the corner of a plaster mill. The accurate distance is not proven, but it is less than 800 feet and over 250 feet It was at a distance of 850 feet from the place of the accident when .the danger signals were sounded. As soon as Burnes "attempted to go on the track the brakes were applied, but it was too late. The only claim of negligence is that the engineer of the locomotive should have seen the little boy Conners, who was on the track, and stopped the train. This would be the best evidence of negligence if it was proven, but within the case Chrystal v. Troy & Boston R. R. Co., 105 N. Y., 164; 6 St. Rep., 833, the proof is insufficient. The engineer could assume that the person on the track would get off; he was not bound -to expect helpless, infants on the track.

The judgment should be affirmed, with costs.

Dykmar and Pratt, JJ., concur.


author: Pratt, J.

text:
    Elizabeth Goram, App’lt, v. Hanford R. Cable, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    Civil damage act—Proof of intoxication.
    Plaintiff’s husband and another man after drinking a pint .of whiskey between them went to defendant’s hotel and had three glasses of beer, and then went in a boat fishing. The boat overturned and plaintiff’s husband was drowned. Held, insufficient to show that the deceased was intoxicated. ' ■
    Appeal,from judgment dismissing the complaint.
    The action was brought under chapter 646 of the Laws of 1873 of the state of New York and generally designated the civil damage act
    The appellant is the widow of James Goram, who was drowned in Glenmere Lake October 19, 1890.
    Hé and his companion, Moses Dubois, had started out to go fishing in a small row boat, and when a short distance from the starting point the boat capsized and Goram was drowned.
    No one saw Goram or Dubois, nor saw the boat at the time it was turned over. Dubois’ back was towards Goram at the time of the accident, and he was unable to give any account of how the accident occurred.
    The testimony shows that Goram, Dubois and a young man named Eli Case started out from the village of Chester, about lour miles distant from Glenmere' Lake, at about seven or half - past seven in the morning to go chestnutting pursuant to a previous understanding had among them.

      When they met Gorham had a bottle and Dubois had a bottle,, each containing about a half pint of liquor.
    The three remained together until half-past ten or eleven1 o’clock in the forenoon, and among them they drank the contents of the two bottles. Case then went home and Goram and Dubois went on to the lake, reaching there about twelve o’clock.
    Dubois testifies that he had three glasses of beer at the respondent’s place, Glenmere Lake; that Goram drank when he did, substantially, that he drank three glasses of beer. But testifies that Goram was not intoxicated.
    That they started out with the boat between twelve and one-o’clock, and that the accident occurred very shortly after they had started out with the boat. ■ . '
    The only witness who testified as to Goram having drunk anything intoxicating that day was the witness Dubois, and he is the only person who testified as to whether Goram was intoxicated or not at the time or previous 'to .the accident, and he stated, “ 1 don’t think he was intoxicated when he got in this boat.”

      W. J. Groo, for app’lt; Greene & Bedell, for resp’t.
   Pratt, J.

We do not think it proved that deceased was intoxicated on the day of his death.

We are not able to say as a matter of law that because two-men have together consumed a pint of whiskey in a day they must both be intoxicated.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


text:
    Bridget Meyers, Resp’t, v. Daniel Hunt, Ex’r of Harrison Hunt, Dec’d, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    Decedent’s estates—Forgery—Proof op handwriting.
    On the trial of an action on a disputed claim against an estate upon a. note which is claimed to be a forgery, where the executor fails to produce any writing of his testator for the purpose of comparison, and the verdict of the jury is based upon a comparison with a specimen produced by the plaintiff, the opinion of witnesses on the subject is of slight importance, and the verdict will not be disturbed for errors in the admission thereof.
    ■ Appeal from judgment in. favor of plaintiff, entered upon verdict.
    This action was commenced by stipulation under the statute providing for a reference of a disputed claim against the estate of a decedent.- The claim is against the estate of Harrison Hunt, deceased, arising on a promissory note for $750, dated April I, 1884. No one knew of this note until after the death of Harrison Hunt, when it was produced by the claimant herein and payment was demanded. There is no testimony whatever of the execution of this note.
    Bridget Meyers, the plaintiff, testifies:
    Q. Do you know the signature of Harrison Hunt when you see it ?

      Objected to as incompetent under § 829 of the Code of Civil Procedure; objection overruled; exception taken.
    A. Yes, sir.
    Q. Whose signature is that on that paper ?
    Objected to as incompetent under, § 829 of the Code of Civil Procedure; objection overruled ; exception taken.
    A. Harrison Hunt’s.
    The only witness to testify further on this subject is Mr. ’Gleason, who testified that he also has a claim against the estate which is disputed, and that plaintiff in this action is his chief witness. Opposed to this is the testimony of Mr. Annan, Mr. Walker, Mr. Field and Mr. Wilson, who all testify that they ar’e familiar with the signature of Harrison Hunt, and that the signature to the note is not in their opinion his signature.

      Arthur T. Hoffman (John H Clapp and Jarvis W. Mason, of counsel), for app’lt; Charles H Noxon, for resp’t.
   Pratt, J.

The executor failed to produce any of decedent’s handwriting to compare with the signature of the note in suit. 'That neglect is most significant; almost an express admission that the note sued upon is genuine. The plaintiff produced one specimen, which the jury compared with the note, and their verdict, based upon that inspection and comparison, cannot be interfered with.

In view of the above the opinion of the witnesses is of slight importance.

Judgment affirmed, with costs.

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


text:
    The Anchor Brewing Co., App’lt, v. Charlotte McDonald, Impl’d, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    Bills Ann sates—Protest.
    In an action against the endorser of a note, where the only proof of notice to her was that a letter had been written to her two or three days after the note was due, Held.Qioi there was no proof of sufficient notice to charge her, and that a nonsuit was properly granted.
    Appeal from judgment dismissing the complaint as against the defendant McDonald.
    Action upon a promissory note made by F. M. May and endorsed by Charlotte McDonald.

      William Q-. Valentine, for app’lt; Wood & Morschauser, for resp’t.
   Pratt, J.

The notarial protest is only evidence of the facts therein stated. It does not state that any notice was sent to the endorser, McDonald. The only proof made upon the trial of .any notice to the endorser was the testimony of a witness at folio 42 that he sent her a letter two or three days after the note was due. The contents of the letter are not shown.

Mo proof being given of sufficient notice, the nonsuit was properly granted.

Judgment affirmed, with costs.

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


text:
    In the Matter of the Judicial Settlement of the Accounts of Richard A. Kenworthy et al., Ex’rs of Thomas Kenworthy, Deceased.

      (Suprerne Court, General Term, Second Department,

      Filed February 8, 1892.)

    1 Executors and administrators—Commissions—Code Civ. Pro, §- 2736.
    The power to apportion commissions under § 2736 of the Code does not include the power to totally abate any .executor’s compensation, except, possibly, in the case of misconduct resulting in loss, or where the estate is less than $100,000.
    2. Same.
    Where 'the estate exceeds $100,000, and there are but thre'e executors, each is entitled to full commissions, based on the whole estate, irrespective of which executor actually handled it.
    3. Same—Taxes.
    The validity of a tax against the estate cannot be determined on an accounting by the executors, and the same should not be charged against the-shares of those interested in the estate, but the amount thereof should be retained until its validity is determined.
    Appeal from decree of the surrogate of Dutchess county, entered upon a final accounting.
    The will of Thomas Kenwortliy appoints Richard Kenworthy, Richard A. Kenworthy and Alanson H. Saxton executors. A codicil, made shortly before the testator’s death, recites the death of Richard Ken worthy, and appoints in his place the testator’s wife, Martha J. Kenworthy, as executrix. The will was proved February 20, 1890, and the two executors took the oath of office on that day, and letters testamentary were issued to them. The executrix took the oath of office July 15, 1890, and letters testamentary were on that day issued to her. At the time of the death of the testator the property of his estate, which consisted' mostly of securities, was in the possession of the executrix, and at the request of one of the executors she passed them into his-hands. The delay in taking the oath of office by the executrix was in part because of her poor health, and partly because of a request of one of the executors, and from the counsel employed by them, the pretense by them being that such delay was for the purpose of preventing trouble. She united with the executors in the application for the probate of the will, in consultation with the counsel in relation to questions arising out of the administration of the estate, and in the employment of counsel. She told the executors that she was ready and willing to take an active part in the administration of the estate. She united in the return qf the inventory. She in fact received and disbursed only a small amount of money. She united with the executors in assigning securities to herself, in the payment of her legacy, to the amount of §14,447.92.

      It was stated (though not proved) on the hearing that the “ Estate of Thomas Kenworthy ” was assessed upon the assessment roll of the city of Poughkeepsie for the sum of $36,000.
    The decree disallows all commissions to the executrix, adjudges that certain securities be received and accepted on account of the trust fund of $40,000; that the trustees retain one-half commissions on receiving said fund, and that the executors pay two-thirds of the tax which may'be levied upon the assessment against “ The Estate of Thomas Kenworthy ” out of the income of the trust .fund.
    From these portions of the decree the executrix, Martha J. Kenworthy, appeals to this court.
    IF. Farrington, for app’lt; Charles F. Cossum, for ex’rs, resp’ts; ■Jacob Halstead, guardian ad litem, and for residuary legatees.
   Pratt, J.

Section 2736 of the Code provides that, where a de■cedent’s personal estate amounts to $100,000, or more, over all ■debts, each executor, not exceeding three, is entitled to full compensation, unless the court shall apportion the aggregate according to the services rendered. I do not understand that the power to apportion includes the power totally to abate any executor’s compensation except, possibly, in the case of misconduct, resulting in loss, or where the net estate is less than $100,000.

There seems to have been no occasion to apportion the aggregate in this case, at least no such thing was done, and nobody complained on that account. Two executors have received their full compensation. The executrix was not allowed any compensation. I think this was wrong. The statute as applied to this ■case says that she. was entitled to full compensation because there was nothing taken from her compensation or any apportionment She qualified and did do some acts in administration.

The basis for her commissions is the amount of the estate. I ■can see no other meaning to the words “full compensation.” This “compensation” is by means of commissions. Full compensation, therefore, means “full commissions.” And that is based on the whole estate irrespective of which executor actually handled it. Valentine v. Valentine, 2 Barb. Ch., 430.

I do not understand the case of Manice, 31 Hun, 119, to be in -conflict with these views. That was a case of two executors who had administered an estate. It does not appear that the net estate ■amounted to $100,000. Hence, there was but one commission to be allowed, and that was awarded to the executor who did the work. Here, as already observed, the statute is peremptory and gave this executrix full commissions, because nothing was taken from her commissions by apportionment.

* 1 do not understand that the surrogate has allowed full commis: •sions to the trustees as trustees, but one-half commissions for receiving the trust and one-half for paying out such a part as they have paid. Tin's seems sanctioned by authority.

Assuming that the tax was a proper charge, the disposition ■which the surrogate made of the matter was just and fair.

We cannot now undertake to hold the tax invalid as against the public authorities, and it may be that we could not lawfully do so when we come to hear what they have to submit. But it would .seem from the facts now disclosed that it may well be doubted if any tax is payable.

There seems to be an irregularity in the assessment which under Trowbridge v. Horan, 78 N. Y., 439, will render it invalid.

The tax authorities cannot tax the estate of a decedent They may tax the property against the owner thereof whether held ab.solutely or in trust They do not seem to have done that, but to have assessed the estate as such. This form of assessment was held invalid in Trowbridge v. Horan, and I do not see why it was valid in this instance. I cannot, therefore, concur with the learned .surrogate in actually charging the parts of this tax on shares. Non constat it may never be,paid. For aught that I can now see it ought not to be paid. It may be, however,, that when-the public authorities come to be heard on this matter, they may show some facts, not now disclosed, which will show that this tax ought lawfully ■> >e paid. If so it will be time enough to direct payment thereof. The decree, should, therefore, be modified by allowing the retention of the money in the proportions indicated which shall be charged if the tax is held payable; otherwise it .should be distributed among the parties entitled thereto.

In view of the fact that the appeal of the executrix is well founded, she ought to have her costs and disbursements of this .appeal payable as a part of the expenses of the estate generally. The result also shows that it was reasonable that she should have the benefit of the advice and services of counsel before the surrogate on the accounting. She w.as, therefore, entitled to indemnity against her expense for that cause, within the statutory limit, quite as plainly as for her traveling aiid other expenses.

The decree should be resettled so as to provide for her commissions and the costs and disbursements of this appeal and her counsel’s services within the statutory limits as part of her expenses, and also to provide for the tax matter as herein indicated.

Barnard, P. J., and Dykman, J., concur.


author: Dykman, J.

text:
    Richard Cronin et al., Resp’ts, v. William M. Tebo, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    1. Severance—Code Crv. Pro., § 511.
    Section 511 of. the Code, allowing a severance where the answer admits, expressly or by not denying, a part of plaintiff’s claim to be just, applies only to a case where the answer taken in its entirety admits that a part of the claim is just and should be enforced and collected without waiting the result of litigation.
    3. Same.
    Where the answer sets up a counterclaim sufficient to extinguish the entire claim contained in both causes of action specified, there is no such admission and a severance should be denied.
    , Appeal from judgment in favor of plaintiffs and from order granting motion to sever the action' and ordering judgment upon :the second cause of action.

      Josiah T. Marean, for app’lt;. James C. Church, for resp’ts.
   Dykman, J.

The complaint in this action set up two causes of action. The answer denied the- first cause of action and set up a counterclaim sufficient to defeat both causes of action, as we understand the pleadings; but the complaint is quite indefinite as-to the amount claimed under the first cause of action.

The plaintiff served a reply denying the counterclaim, and then moved the court at special term for an order severing the action, and permitting the plaintiff to enter judgment for the sum claimed in the second cause of action which was not denied, and continue the action as if it had been brought originally for the remainder of the claim.

That motion was granted, and the judgment was entered accordingly, and the defendant has appealed from the judgment- and from the order. . .

The motion was made and granted under § 511 of the Code of Civil. Procedure, which is .as follows, so far as it affects this appeal: “ Where the answer of the defendant, expressly or by not denying, admits a part of the plaintiff’s claim to be just, the court,, upon the plaintiff’s motion, may, in its discretion, order that the action be severed; that a judgment be entered for the plaintiff for the part so admitted, and, if the plaintiff so elects, that the action be continued with like effect, as to the subsequent proceedings, as if it had been originally brought for the remainder of the claim.”

It will be seen that the language of the statute is very guarded:: “ Where the answer of the defendant, expressly or by not denying, admits a part of the plaintiff’s claim to be just, the court, * °* * may in its discretion order that the action be severed.”

The section should be construed so as to apply only to a case-where the answer . of the defendant taken in its entirety admits, that a part of the plaintiff’s claim is just and should be enforced and collected without waiting the result of litigation.,

This view is -strengthened by the discretion which is vested in-the court. The language is: “ The court * * * may in its, discretion order that the action be severed.”

Such discretion was given to enable the court to examine the whole answer and see whether on a broad view of all its allegations, and all the defenses it set up, it admitted any part of the plaintiff’s claim to be just, and such as should be summarily enforced.

.In this case the answer sets up a counterclaim sufficient to extinguish the entire claim of the plaintiff contained in both causes of action specified, and that claim is certainly incompatible with an admission that the plaintiff has a just claim against him. Contrariwise it is quite the reverse. It is equivalent to a declaration-that he owes the plaintiff nothing, that the plaintiff has no just, claim which should be enforced against him because he has a counterclaim which will extinguish all the demands set up in the-complaint. . ,

If this section is to receive the construction for which the respondent contends, it may operate very unjustly.. An insolvent-plaintiff may obtain.and collect a judgment for a portion of his. demand, and if the defendant establishes his counterclaim and obtains a judgment he would be unable to collect the same from the plaintiff by reason of his insolvency.

It is inconceivable that the legislature ever intended such a result, and we cannot permit a construction which will sanction such a consequence.

Justice to this defendant demands for him an opportunity to ■establish his counterclaim and thus extinguish the demands of the plaintiff, instead of paying the judgment for the portion of the uncontroverted claim and abiding his chances of collecting the judgment he may obtain against the plaintiff.

Even the circuity of such practice is sufficient to induce the court to hold all the claims set up in the pleading to abide the result of a trial and final judgment.

The judgment and order appealed from should both be reversed, with costs of reversal of the judgment, but no costs for the order, and the motion should be denied, with len dollars costs.

Barnard, P. J., and Pratt, J., concur.


text:
    Thomas Foley, Resp’t, v. Theodore H. Schiedemantel et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    1. Injunction—Undertaking—Decision as to bight to injunction.
    A verdict and judgment rendered in favor of defendant in an injunction suit after a preliminary injunction has been vacated, is a final decision that the plaintiff was not entitled to the injunction.
    .2. Same—Evidence—Amendment op pleading.
    .In an action on an undertaking given on the issuance of an injunction evidence to show that defendants’ signatures to the undertaking were procured by misrepresentation is inadmissible unless pleaded in the answer; and as such matter would constitute a new defense the answer cannot be amended so as to include it.
    Appeal from judgment in favor of plaintiff entered on verdict directed by the court.

      John B. Abney, for app’lts; Calvin D. Van Name (S. F. Bawson, of counsel), for resp’t.
   Dykman, J.

This action is brought upon an undertaking made by the defendants upon an application for an injunction in .an action in which Sarah A. Burke and Mary Burke were plaintiffs, and Thomas Foley and John Foley were defendants, to bar the defendants from all claim to certain real property and to restrain them from interfering with the same.

The instrument was in the usual form, ánd by it the defendants undertook to pay the defendants m that action such damages as they might sustain by reason of the issuance of an injunction then applied for, not exceeding $250.

A preliminary injunction was obtained which was subsequently vacated, except as to the house on the premises, and after that the cause was tried at the circuit and a verdict was rendered for the defendants.

Upon the trial of this action the defendants’ counsel, at the close of the plaintiff’s case, moved to dismiss the complaint on the ground that it.had not been shown that the court had finally decided that the plaintiffs in the injunction suit were not entitled to-the injunction. That motion was: denied and the defendants excepted.

Then the counsel for the defendants offered to show misrepresentation in the procurement of.the signatures to the bond. That, was denied as inadmissible under the pleading, and the defendants, excepted. Then the counsel for the defendants moved to amend the pleading in that respect, and that motion was denied also, and there was an exception.

Then the court directed a verdict for the plaintiff for the full amount of the undertaking, to which the defendants excepted.

In relation to the first point it is sufficient to.say that the verdict and judgment in the injunction suit in favor of the defendants! was a final decision that the plaintiffs were not entitled to the injunction. Pacific Mail S. S. Co. v. Toel, 85 N. Y. 646; Vanderbilt v. Schreyer, 28 Hun, 61.

The matter offered in evidence as a defense was not set up in the answer and .was properly rejected for that reason, and as it. constituted a new defense the refusal to permit an amendment of 'the answer so as to include it was properly refused.

The judgment and order denying .the motion for a new trial. should be affirmed, with costs.

Barnard, P. J., and Pratt, J., cóncur.


text:
    In the Matter of the Judicial Settlement of the Accounts of Anna Seebeck, Ex’rx.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    Will—Construction—Devise to children.
    By testator’s will he devised certain real estate to his sister, with remainder to her children in equal shares, and provided that if any of such children should be dead, leaving- lawful issue, such issue should take the share of its parent. This was modified by a codicil, so that the executors were to lease the premises and pay $600 annually to the sister during her life and the balance “ to the children of my said sister in equal shares.”' Held, that the children not being named or numbered, but only designated as children, they took as a class, and that if any of them died during the lifetime of the mother, the survivors were to take the balance of income in equal shares.
    Appeal from order denying motion to dismiss the petitions and objections of Anna Tienken; individually, and of Anna Tienken and John S. Gage, as executors of Henry M. Tienken, deceased.

      William D. Veeder and George F. Martens, for app’lts; Theo. N. Melvin, for resp’t.
   Dykman, J.

This proceeding was instituted before the surrogate of Kings county to compel the surviving executrix and trustee under the last will and testament of John H. Seebeck, deceased, to pay over to Anna M. Tienken, individually, or to her and John S. Gage, as executors of Henry M. Tienken, deceased, the surplus income in the hands of Anna Seebeck, as such trustee, which would have been payable to Henry, M. Tienken, if living.

John H. Seebeck died, leaving a last will and testament and a •codicil thereto, which were proved and admitted to probate by the .surrogate of Kings county, and the executors and trustees named in the will, Anna Seebeck and Abraham Lott, both qualified and ■entered upon the discharge of their duties. Lott is now dead and Anna Seebeck is living.

The income, which is the subject, of contention in this proceeding, arose and was accumulated in the hands of the trustee, Anna Seebeck, under the nineteenth clause of the will of John "EL Seebeck, deceased, as modified by the third clause of his codicil thereto.

The nineteenth clause is as follows : “ Nineteenth. I give and ■devise to my sister, Anna Tienken, all my property- at the northeast corner of Bridge and Nassau °streets, with the house and lot on Nassau street adjoining, in the city of Brooklyn, and, also, my house and lot on the southwest corner of King and Yan Brunt .streets, and the house and lot adjoining on Yan Brunt street,to have and to hold the same for and during her natural life, with remainder to her children in equal shares, and in case any of such children ¡should be dead, leaving lawful issue him or her surviving, -then I ■order and direct that the lawful issue-of such child so dead shall take the share which his, her or their parent would have taken if living.”

The third clause of the codicil is as follows: “ I do hereby revoke and annul the nineteenth item of my said will, and in lieu thereof I direct my said executors to let the premises described in ¡said item, and out of the income arising therefrom to pay to my sister, Anna Tienken, the just and full sum of $600 per annum, ■ in quarterly instalments, and to pay over the balance thereof, ¡after' paying all taxes, assessments and insurance, and for all repairs on said premises, to the children of my said sister in ■equal shares. I do hereby modify and change the twentieth item of my said will, as far as to order and direct that my nephew, John H. Tienken, the son of my sister, Anna Tienken, shall only receive the income from one-foürth of my residuary estate’for and ■during his natural life, ’and that the said one-fourth of such residuary estate shall go to the children of the said John H. Tienken at his death."

John H. Seebeck left him surviving his widow and trustee Anna Seebeck, his sister, Anna Tienken, and her four children, John IL Tienken, Henry M. Tienken, Matilda Jahn and Henrietta (nów Ficken).

Henry M. Tienken, one of the children, died October 31, 1889, •childless, leaving a last will and testament and a codicil thereto, which have been admitted to probate, by which he gave all his property to his mother, Anna Tienken.

Under this will the mother claims the share of the income which would have belonged to her son if he had not died.

The question upon which the controversy depends is whether the children of Anna Tienken took the remainder of the income individually or as a class.

By a reference to the third clause of the codicil, which modified the nineteenth clause of the last will and testament, it will be seen that it contains no words of devise or bequest either to-Anna Tienken or her children. But the executors are directed to pay to Anna Tienken $600 annually out of the income, “ and to pay over the balance thereof” * * * to the children, The children are not named and are only designated as children, and that has ever been considered sufficient to show that they took as a class if no other portion of the will contravened such intention. Ferrer v. Pyne, 81 N. Y., 281.

. Again, the children are not numbered, and there is no direction to divide the balance of the income and pay a certain portion to each child. - Their individuality is sunk ana obliterated and they are consolidated into a class. * •

The payment is to be made to the children, and there is nothing to show that the word was not employed in its ordinary primary sense, and it does not, therefore, include grandchildren, or legatees, or devisees. Palmer v. Horn, 84 N. Y., 521; Shannon v. Pickell, 55 Hun, 131; 28 St. Rep., 464.

The executors are directed to pay over the balance to the children and they can make payment to no other person, and so long as there are children of Anna Tienken in existence during her life time they must receive the balance of income in equal shares.

In the case of Magaw v. Field, 48 N. Y., 668, the language of the will was “I give, devise and bequeath to the children of Van Brund Magaw, late of Gravesend, deceased, all that certain piece or parcel of land * * * to have and to hold the same to the said children, their heirs and assigns forever.”

At the time of the execution of the will there were seven children of Van Brund Magaw living, but all of them had died but two before the testator’s death. The two living children claimed the whole estate and brought this action of ejectment, against the children of the deceased children of the testator. Held, that the devise was to a class and only the two surviving children, took under it. *

In the case of Hoppock v. Tucker, 59 N. Y., 204, the testator by the seventh clause of his will directed his executors to divide the residue of his estate into six equal parts, and then the eleventh clause of the will read as follows: “ Eleventh. Out of one other of such equal sixth parts or shares, I do give and bequeath the-sum of $10,000 unto my grandson, Edward A. Hoppock, son of my son Moses Allen Hoppock, and the remainder of the said last mentioned equal sixth part or share of my said residuary estate and property I do give, devise and bequeath in equal proportions,, share and share alike, unto John Compton Tucker, Hubert V. Wr Tucker and William Edgar Tucker, the children of my deceased daughter Ann Maria, late wife of John 0. Tucker.”

In speaking of this provision, chief Justice Church, who wrote the opinion of the court, said ; “We * * * have arrived at the conclusion * * * that the bequest of one sixth of the-residuary estate to the children of the testator’s deceased daughter Ann Maria, was intended as a bequest to them, as a class, and not as individuals, and that the specification of their names must be subordinate to that intent. The description by names is a perfect bequest to them as individuals, while the other description as children of the deceased daughter, standing by itself, is a perfect bequest to them as a class.”

Our conclusion, therefore, is that by the nineteenth clause of the will as modified by the third clause of- the codicil Anna Tienlten, the sister, was to receive $600 a year from the income of the real property, during her natural life, and the remainder of such income after the payment'of taxes and assessments was tobe paid over to her children, and. if any of them die during the lifetime of their mother the survivors were to receive such balance in equal shares.

The order appealed from should be reversed, with costs, and the proceedings should be remitted to the surrogate.

Barnard, P. J., and Pratt, J., concur.


text:
    George H. Martin, App’lt, v. Thomas Graham, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    Promise—Implied.
    As a tenant was about to pay rent to the assignee of her lessor, defendant, who was her friend, took the money saying he would keep it until the assignee was identified and then he could have it. Held, that the assignee had no right of action against defendant; that there was no consideration for any agreement to pay the money to the assignee when identified, .and no privity between them.
    Appeal from judgment dismissing the complaint.

      J. Stewart Boss, for app’lt; Hays & Oreenb'aum, for resp’t.
   Barnard, P. J.

One Reuben P. Thompson rented to Susan McHenry the premises 27 East Twenty-fourth street, Hew York, for. one year .from May 1, 1889, at the yearly rent of $1,700 payable monthly. The rent payable for January, 1890, was to be $150. On the 31st of December, 1889, the plaintiff purchased the premises from Thompson. The lease was assigned ■ with the premises. The plaintiff applied to Mrs. McHenry for the rent and it was agreed that a deduction of ten dollars be made. Mrs. McHenry produced the money and was about to pay it over when the defendant reached over and took the money, saying that he was the friend of the lessee and would keep the money until the plaintiff was identified; that when the plaintiff was identified he Could have it

The trial court ordered a nonsuit. The claim of the plaintiff .against the tenant was neither paid or suspended. There was no •contract by the defendant that he would pay the rent due with the money given to him. The defendant could have been sued' by the tenant at any time for the $140 he held subject to identification of the plaintiff as the purchaser of the premises. Ho •cause qf action was therefore made out against the defendant. There was no privity of contract between him and the plaintiff; he made no written agreement. There was no consideration for any agreement upon defendant’s part to pay the money to plaintiff when identified. He merely held the tenant’s money to await the identification of the plaintiff.

The judgment should therefore be affirmed, with costs.

Dykman and Pratt, JJ., concur.


author: Bookstaver, J.

text:
    Frederick A. Condit, Resp’t, v. Charles Sill, App’lt.

      (New York Common Pleas, General Term,

      Filed February 1, 1892.)

      1. Brokers—Commission—Double employment.
    In an action brought by a real estate broker to recover commission for effecting an exchange of property, it appeared that plaintiff was employed by both parties to the exchange and plaintiff testified that defendant had knowledge of the fact; the defendant offered to prove that he was ignorant of the double employment, but the testimony was excluded. Held, error.
    2. Same—Evidence—Direction oe verdict.
    The plaintiff being the only witness in his behalf, and the nature of the transaction being such as to cast suspicion on him,it was error for the court to direct a verdict in his favor.
    Appeal from a judgment of the general term of the city court, affirming a judgment entered at a trial term of that court on a verdict directed by the- court for $1,247 damages and costs..

      Adrian H. Joline, for app’lt; Henry G. Atwater, for resp’t.
   Bookstaver, J.

This action was brought to recover the sum of $1,000 and interest as commissions alleged to have been earned by the plaintiff and agreed to be paid by defendant for effecting-an exchange of real estate belonging to the latter.

Much of appellant’s evidence was excluded upon the trial, and it is apparent to us that the judgment recovered was for services-which resulted in no benefit whatever to the appellant

In-the view we take of" this case, it is unnecessary for us now to determine whether or not the agreement sued on was fulfilled by the mere procuring of a contract for the exchange of property, or whether that agreement, being a departure from the usual language of such' agreements, did not call for the full execution of the contract culminating in an exchange of deeds, considering the fact that the alleged owner of the property in New York, to-be exchanged for the appellant’s property, had obtained title merely for the purpose of carrying out the exchange and was not a man of sufficient means to respond in damages in case of his inability to do so, and considering the suspicious way in which the contract of exchange was brought about

It appears from the testimony that the plaintiff himself, who was the only witness on his behalf, testified that Benson and MeGillivray both employed him to sell the Sixty-ninth street houses;. they were on his books; he induced McGillivray to buy them o£ Benson and got the latter to trade with Sill. Respondents counsel contends that inasmuch as this wgs brought out on the cross-examination of the plaintiff, it cannot avail him on this appeal tO' establish the fact that the respondent was agent for both parties. But it appears that thereafter the plaintiff volunteered the following testimony : “ Hugh McGrillivray, the man who entered into the contract with Dr. Sill (appellant), was the same person who was a joint owner of the property in Sixty second street. I was never employed- by Mr. McGrillivray any more than any other customer who sends me property to sell. I never had sold any property for him. I have got millions of dollars of property on my books from owners that I never saw, and do not know anything about. I write to them and I get anybody who wants to-buy their property or trade for it. Up to the time this double-deal or three-cornered deal took place, I never did any business for McGrillivray.” This, as well as other evidence in the case, conclusively shows that the respondent was acting as agent for Me Grillivray as well as for Dr. Sill.

It is well settled that where a broker employed to find a purchaser of land fails to disclose the fact that he -was already in the employ of the person who subsequently purchased it,he is precluded from a recovery of commissions. Platt v. Baldwin, 2 City Court, 281; Watkins v. Cousall, 1 E. D. Smith, 65; Vanderpoel v. Kearns, 2 id., 170; Dunlop v. Richards, id, 181; Rowe v. Stevens, 53 N. Y., 621; Connell v. Smith, N. Y. L. J., Sept. 14, 1891.

But the court below in its opinion says : “ the defendant was. not entitled to a reversal of the judgment, because he didn’t plead that plaintiff was in the employ of the other party.” Duryee v. Lester, 75 N. Y., 442, is cited in support of this proposition; but. that case is not an authority for such a proposition. There the court merely held that the point should have been raised at the trial, and it was too late to raise the question for the first time on appeal. Martin v. Bliss, 32 St. Rep. 932.

There can be no doubt that in the case now under consideration this question was sufficiently raised at the trial; and the fact, appeared by the plaintiff’s own testimony, not brought out on cross-examination, but volunteered, to which there had been no exception interposed.

Inasmuch as the plaintiff had given this testimony and had further testified that the appellant “knew the whole ins and outs of the case from beginning to end,” we think it was error to exclude the testimony of Dr. Sill tending to show that he was in. ignorance of the double employment of the respondent, and he had never been informed of it by him. It has frequently been held that a broker cannot recover in case of a double employment unless it appears that -both parties were fully informed he was acting for both and assented to it. This the plaintiff was allowed to show and the defendant was not allowed to controvert. The error, we think, is apparent from what occurred on the trial when the justice, in denying a motion to dismiss the complaint, said, the motion is denied on the ground that the matter is not pleaded and that there is no evidence to show that if such was the case it was not known to all parties.”

The plaintiff being the only witness on his behalf, we think the court erred in directing a verdict in his favor in view of the suspicious facts and circumstances which were proved in the Case. It has been held that under, such circumstances the case should be submitted to the jury for their determination. Kavanagh v. Wilson, 70 N. Y., 177; Gildersleeve v. Landon, 73 id., 609; Wohlfahrt v. Beckert, 92 id., 490, and Kahn v. Lesser, 43 St. Rep., 149, where Kelly v. Burroughs, 102 N. Y. 93; 1 St. Rep., 161, is commented. on and distinguished.

We, therefore, think the judgment in this case should .be reversed and a new trial' ordered, with costs to the appellant to abide the event

Bischoff and Prior, JJT., concur.


author: Per Curiam.

text:
    David Mackay, Jr., Resp’t, v. Aaron Kahn, App’lt.

      (New York Common Pleas, General Term,

      Filed February 1, 1892.)

    1. Bills and notes—Condition precedent.
    When a due hill is given for an account, which expressly states that it is not to he negotiated and that no suit is to he brought on it, its return ccannot he required as a condition of maintaining an action on the account.
    2. Account stated—Evidence op.
    Proof that monthly statements were rendered defendant, in which he was named as debtor and to which no objection was offered, and that he afterwards verbally conceded an indebtedness, and gave his due-bill, is sufficient evidence of an account stated.
    Appeal from a judgment rendered in the district court of the of New York for the eighth judicial district.

      L. B. Bunnell, for appl’t; Maclay & Forrest, for resp’t.
   Per Curiam.

This was an action upon an account stated between the parties, for work, labor and services rendered and materials furnished by the respondent to the appellant.

The appellant does not seek a reversal Because substantial justice has not been done by the judgment, but on technical grounds which leave unaffected the defendant’s liability for. the amount claimed and recovered; but insists that before commencing his action the respondent took what is claimed to be a due bill from the appellant, which he neither returned nor - offered to return before or at the trial. The paper referred to by the appellant as a due bill is not in reality such, but a mere acknowledgment of indebtedness and of the" correctness of the accounts before rendered to him; it expressly says tjiat it is not to be negotiated and that no suit was to be brought upon it. ■ Therefore,:;the return of that paper could not be required as a condition of maintaining the action.

The' plaintiff proved that monthly statements of the account for labor and materials were rendered the defendant, in which he was named as debtor, and that no objection was offered to any of them by the defendant; and that he afterwards verbally conceded an indebtedness of $100 and gave the paper which has been before reférred to. This was sufficient evidence of an account stated. Bottum v. Moore, 13 Daly, 464; Manchester Paper Co. v. Moore, 104 N. Y., 580; 5 St. Rep., 747; Horton v. Brown, 102 N. Y., 698.

It cannot be successfully contended that this alleged due ■ bill should have been sued upon instead of the account, when by its-very terms it was not to be.

It is contended that there was a dispute as to the amount of plaintiff’s claim, and the paper acknowledgment was the result of a compromise, and, therefore, it became a substitute for plaintiff’s-original claim. But we think the evidence utterly fails to disclose any proof that the account was ever disputed. The defendant’s own testimony is to the effect that the acknowledgment was-given to show that the work had been done on the property and what the amount-of it was, in order that Mr. Mackay might show it to his creditors and-thereby increase his credit. The additional-amount of two dollars and twenty-six cents was not successfully-disputed.

The judgment should, therefore, be affirmed, with costs.

Bookstaver and Bischoff, JJ., concur.


text:
    Clarence C. Perry, Resp’t, v. John H. Woodbury, App’lt.

      (New York, Common Pleas, General Term,

      Filed February 1, 1892.)

    1. Appeal—Payment op judgment does not preclude.
    Payment of a judgment and costs by a defendant, pending his appeal therefrom, does not preclude his prosecuting the appeal.
    2. Master and servant—Extra compensation—Evidence.
    In an action brought to recover for medical services, it appeared that, plaintiff was regularly employed by defendant in his medical institute; that there was no special employment for the particular services rendered and that they were not rendered out.of regular hours; that there was-nothing said about any compensation until plaintiff had left defendant’s employ, when he demanded payment which defendant refused to make. Held, that there was' not sufficient evidence to support a judgment for plaintiff.
    Appeal from a judgment in favor of the plaintiff rendered in-the district court of the city of Mew York for the eleventh judicial district

      N. 3. Diossy, for resp’t; Benjamin Patterson, for app’lt.
   Bookstaver, J.

ending this appeal the defendant paid the judgment and costs and obtained a satisfaction thereof, and respondent contends that these facts preclude him from prosecuting the appeal. In Dyett v. Pendleton, 8 Cow., 326, it was held that the payment of the judgment, on an execution, did not prevent the defendant from prosecuting his writ of error. In, Clowes v. Dickenson, 8 Cow., 328, Spencer, Senator, referring to the case first cited said, “ I feel confirmed on reflection that no matter how the money is paid or collected, this cannot affect the right to-try error on appeal.” In Hayes v. Nourse, 107 N. Y., 577; 12 St. Rep., 476, it was held that a voluntary payment of the judgment, even before taking his appeal, did not prevent the defeated party from afterwards appealing, and in that case it was said, “The defendant’s practice in paying the judgment, before appealing from it, is not to be condemned. It is rather to be encouraged * * * By so doing he will save the costs of execution, and do no harm to his creditor. We think he should not, by a temporary submission' to the decision ■of the court, be placed in a worse position than if he awaited execution and settled it with sheriff’s fees.” It is not contended that the payment in this case was made by way of compromise ■or with an agreement not to continue the appeal; on the contrary that right was expressly reserved and the appeal was then pending. We therefore think he has the right to prosecute it.

The action was brought by the plaintiff as a physician to recover for professional services, which he alleges he rendered the defendant. The complaint does not allege that the services were performed at the request of the defendant or that he promised to pay for the same. It appears from the return that the defendant was ill, and efnployed Dr. Holmes, a physician, to treat him for kis illness. At tho-t time the plaintiff, who is also a physician, was in defendant’s employment, as a dermatologist on a weekly salary. By the terms of his employment he was to give all his time between the hours of 9 A. M. and 6 P. M. to the treatment of patients suffering from skin diseases at defendant’s institute for this salary, and any services rendered on Sundays or in the evenings were to be paid for by a commission out of the amount earned for such services. Besides this, he was to do other work for the defendant when asked, not strictly professional, as addressing wrappers, etc. During defendant’s illness, and while under-Dr. Holmes’s care, the plaintiff expressed .surprise that he had in t béen called upon to treat him, saying he could have done just as well as Dr. Holmes. Defendant denied that plaintiff treated him for that illness, while plaintiff testified be did, and as the justice found in the latter’s favor, we must assume some services were rendered. But there is no evidence in the case tending to show, the defendant requested him to render the services, or made any express promise to pay for them. On the contrary, plaintiff himself testified that nothing was said about any compensation for what he had done, until about the time he left defendant’s employment, when he says he demanded payment for professional services which defendant refused to make. So that any liability to pay rests on inference only. It is true that the law will infer a promise to pay what such services are reasonably worth where there is a request to perform, and in some cases imply a request from the beneficial nature of the services, or their acceptance by the party. Gallaher v. Vought, 8 Hun, 87; Woodward v. Bugsbee, 2 id, 128; Williams v. Hutchinson, 3 N. Y., 318.

But in Ross v. Hardin, 79 N. Y., 84, it was said “ This rule has no application when the request is to a member of the promisor’s family, for the reason that the- relation between- the parties repels the presumption of a promise to pay, and raises a contrary presumption that the service was to be gratuitous, nor does the rule apply when the services are rendered by one in the employ of the person for whom they were rendered. In such cases the law implies that the services were rendered under the contract of employment, unless the contrary be shown, and this implication is much stronger if the services are of the same character as those embraced in the contract” So in Carr v. Chartiers Coal Co., 25 Penn. St., 337, a secretary of a coal company attempted to retain. $200 for extra services. Judge Black denied the right, saying “ he was bound to do whatever his employers may have occasion to employ .a secretary about.” In order to entitle the plaintiff to recover it was, therefore, necessary for him to show affirmatively that there was some special employment for this special service, or facts and circumstances from which it could fairly be deduced. This, we think, he failed to do. Eo request was proved, it was not shown that the services were beneficial; there is not only no proof that defendant ever promised to pay, but there is evidence that he refused at the time plaintiff says he made the demand. It was not shown the services were rendered out of the hours of regular employment. And plaintiff himself testified that he had treated defendant on other occasions without either asking or receiving any compensation for them. The only just inference which should be drawn from the facts of this case, we think, is that the services were voluntarily and gratuitously rendered, especially in view of the fact that defendant denied that plaintiff ever made any demand for payment for these services while in his employment, and testifies that when he was about to leave the plaintiff requested the loan of fifty dollars, which testimony is corroborated by a letter written by him to defendant some time after leaving his employment, in which he states he is in urgent need of fifty dollars, and importunes defendant for that amount, claiming it not on the ground of any professional services rendered, but because he then says he had. allowed defendant to use certain recipes in his business.

We, therefore, think the judgment should be reversed, with •costs to the appellant; and, as it appears by the return that the j udgment has been satisfied, restitution should be ordered as was done in Hunt v. Westervelt, 4 E. D. Smith, 225, which case is also an .authority for sustaining this appeal, as it was apparently heard and certainly decided after the judgment had been satisfied. If the plaintiff desires, after making restitution and paying the costs of this appeal there may be a new trial in the court below, but not otherwise.

Bischoff, J., concurs.