author: Me Ad ah, J.

text:
    James T. Doyle, Pl’ff, v. J. Gilbert White, Def't.

      (New York Superior Court, Circuit Term,

      Filed October, 1895.)

    1. Master and servant—Appliances.
    A master is not bound to furnish the best known or conceivable appliances, but is only required to furnish such as are reasonably safe.
    2. Same.
    In order to hold the master in such case, the servant is bound to establish that the master omitted some duty owing to him, in consequence of neglect or breach, and, as its proximate cause, he suffered injury.
    3. Same.
    Where the source of the damage was a defective eyebolt, not deficient in size or material, but dangerous on account of its being improperly welded, which defect was not apparent to ordinary observation, and the eyebolt was put in the pole by the plaintiff’s fellow workman, the master is not chargeable with negligence.

      Appeal from a judgment, dismissing the complaint and motion for a new trial, and from an order granting a motion for a new trial.

      Mapes & Kelly and K T. Taliaferro, for motion; O. C. Nadal and II. 0. Smyth, opposed.
   Me Ad ah, J.

The action is to recover $50,000 damages for injuries sustained by the plaintiff, a lineman, while in the employ of the defendant, a trolly-road contractor, on January 10, 1893. It appears that the plaintiff was working at the top of an iron pole erected by the defendant in Berone street, New Orleans. While in that position, at a height of about twenty feet from the sidewalk, an eyebolt, which held a wire which spanned the street, broke, causing a jarring of the pole,-which threw the plaintiff to the sidewalk, and inflicted the injuries complained of. It also appeared that the eyebolt was not manufactured by the defendant, but was purchased, with others, by him, through A. Baldwin & Co., from the New Orleans Agricultural Works, a corporation which manufactured them ; that these concerns were well known and responsible, and the defendant had every reason to believe that the bolts were well made. No fault is contributed to the eyebolts, except that the particular one in question was welded, and the break was ascribed to the welding. The plaintiff’s principal witness testified that there was nothing in-the eyebolt to indicate that it was weak. The bolt was put in the pole by a fellow-servant of the plaintiff engaged in the same occupation. At the conclusion of the trial defendant’s counsel moved to dismiss the complaint on the ground that there was no evidence of negligence on the part of the defendant, and that he was not responsible for any neglect of the plaintiff’s fellow workman. The motion was granted. The plaintiff claims that this was error, and moves for a new trial.

Upon entering the defendant’s employ, the plaintiff must be treated as having taken upon himself all the risks ordinarily attending the business, and among these risks are those incident to the careless or wrongful acts of co-servants. Wood, Mast. & S. (2d ed.) § 427; Keenan v. N. Y., L. E. & W. Railroad Co., 145 N. Y. 190; 64 St. Rep. 576. This rule is elementary. In order to hold the defendant, the plaintiff was bound to establish that the master omitted some duty owing to him, in consequence of which neglect or breach, and as its proximate cause, the plaintiff suffered injury. The source of the damage was a defective eye-bolt, not deficient in size or material, but said to be dangerous on account of its being improperly welded, which defect was not apparent to ordinary observation. The eyebolt was put in the pole by the plaintiff’s fellow workman, and if there was any negligent act in putting it in place it was that of the co-servant. A master is not bound to furnish the best known or conceivable appliances. He is required to furnish such as are reasonably safe. Burke v. Witherbee, 98 N. Y. 562 ; Probst v. Delamater, 100 id. 266 ; Sisco v. Leigh & H. Railway Co., 145 id. 296 ; 64 St. Rep. 708. The test is not whether the master omitted to do something he could have done, but whether, in selecting tools ana machinery for their use, he was reasonably prudent and careful. Stringham v. Hilton, 111 N. Y. 188; 19 St. Rep. 621; Harley v. Buffalo Car Manufacturing Co., 142 N. Y. 31; 58 St. Rep. 437.

If the defendant had manufactured the eyebolt, that circumstance might carry with it an implication that he knew, or ought to have known, it was welded, and how it was constructed. But he ordered it from responsible and well-known manufacturers, and had the right to assume that it was properly made. Having acted as an ordinary man would under similar circumstances, he cannot be held to have been negligent.

Judge Cooley, in his work on Torts (2d ed, p. 657), says : “The law does not require him (the master) to guaranty the prudence, skill or fidelity of those from whom he obtains his tools or machinery, or the strength or fitness of the materials they make use of. If he employs reasonable care and prudence in selecting or ordering what he requires in his business, such as every prudent man is expected to employ in providing himself with the conveniences of his occupation, that is all that can be required of him.”

It was held in Carlson v. Phenix Bridge Co., 132 N. Y. at pages 277, 278; 43 St. Rep. 942, that:

Hegeman’s Case, 13 N. Y. 9, presents an extreme application of the rule governing the liability of common carriers of passengers. But the rule applicable in cases of master and servant is more favorable to the master. Eeasonable care, and not the highest efficiency which skill and foresight can producéis the measure of the master’s liability, and he performs his whole duty by using as much care in the selection of materials for the use of his servants as a man of ordinary prudence in the same line of business would, acting in regard to his own safety, in supplying things for himself were he doing the work.”

Illustrations are given, concluding with the general result that a person in the position of the defendant must to a large extent rely upon the dealer and manufacturer for the quality of materials used, and is not usually liable for imperfections not observable on inspection.

In Nelson v. Dubois, 11 Daly, 127, where the plaintiff recovered damages sustained by reason of the breaking of a rope on a pile driver, the court, in reversing the judgment, said :

There is no evidence in the case tending in the least to show knowledge in the master of whatever may have been the condition of the rope, or of its being in a dangerous state under circumstances charging him with knowledge. It rests upon the plaintiff to establish this, and, he having failed to furpish any proof warranting such a conclusion, the motion to dismiss the complaint should have prevailed.”

See, also, Cregan v. Marston, 126 N. Y. 568 ; 38 St. Rep. 428 ; Kunz v. Stuart, 1 Daly, 431.

In Painton v. Railroad Co., 83 N. Y. 7, a brakeman in defendant’s employ was injured by the breaking of an eyebolt connecting the chain with the rod of a brake. He sought to recover damages, and it appeared that the eyebolt was defective in not having been properly welded. There was no evidence of notice to defendant or any of its agents, nor was it shown that the defect could have been discovered by inspection. While a recovery was sustained by the court of appeals upon other grounds, the court held it could not be sustained so far as it rested upon the imperfection referred to. See, also, Flood v. W. U. Tel. Co., 131 N. Y. 603; 43 St. Rep. 302. But, as it did not appear whether the defendant made the defective eye-bolt or purchased it, and it was affirmatively proved that the bolt was too small, they held that this was a defect of which the defendant was bound to take notice, and the jury should say whether it was sufficient to sustain the charge of negligence. Upon this last feature of the case particularly the finding by the jury in favor of the plaintiff was ultimately affirmed. There was no such allegation or proof in this case, and the fact that the defendant did not make the eyebolt affirmatively appeared. The features which made the Painton action a proper one for submission to the jury are absent here.

Every negligence case has so many peculiarities of its own that the application of adjudicated cases, except as to general principles, is matters of extreme difficulty. The process of discrimination and distinction will continue as often ás the kaleidoscope of accident changes the facts and shifts responsibility.

Upon the proofs presented the nonsuit was properly directed (Linkauf v. Lombard, 137 N. Y. at page 426; 51 St. Rep. 63; Hemmens v. Nelson, 138 N. Y. 517; 53 St. Rep. 94), and the motion for a new trial must be denied.


source: Caselaw Access Project

author: Bischoff, J.

license: Public Domain

text:
      John Canavan et al., Resp’ts, v. Thomas Dwyer, Impleaded etc., App’lt.

      (New York Common Pleas, General Term,

      Filed November 4, 1895.)

    1. Pleading—Counterclaim—When allowable.
    A counterclaim lor the breach oí a contract sued on will not be allowed where such breach was caused by the wrongful act of the defendant.
    2. Contracts—Construction.
    The striking a clause out of a contract before its execution does not affect any other clause containing the same requirement as that of the clause stricken out.
    Appeal from a judgment in favor of plaintiffs.

      Henry Daily, Jr., for app’lt-; L. Laflin Kellogg, for resp’ts.
   Bischoff, J.

The plaintiffs’ right to recovery and the availability of the defendant’s counterclaims had respective dependence upon the question whether the plaintiffs’ discontinuance of work under their contract with the defendant was rightful or wrongful, and, upon the evidence, we have but to concur in the wiews expressed by the learned trial judge, that the defendant’s acts of prevention justified the plaintiffs’ failure to complete the work assumed. It was Dwyer’s refusal to remove a certain boilér, directly in the line of the excavation undertaken by the plaintiffs, and as laid out by the engineers, which removal was essential to the continuance of the work, together with his declaration that he would hold the plaintiffs to any damage resulting to the boiler from their operations, which caused the latter to stop their work, and the record shows that the position taken by them was thoroughly justifiable.

Upon the question of the amount of work performed by the plaintiffs, and for which the facts prove they were entitled to recover at the contract price (Thorp v. Ross, *43 N. Y. 546; Flaherty v. Miner, 123 id. 389; 33 St. Rep. 681), there is practically no dispute ; but our attention is to be directed to a question involving the merits of a counterclaim by the defendant, and which is also brought up upon the issue of the plaintiffs’ proper performance. This deals with the following clause of the contract between the parties:

“ First. The rock excavated shall be quarried by the said parties of the second part (these plaintiffs) in such a manner that all bottom stone found on the premises can be used as bottom stone, and about one thousand three hundred cubic yards of rock excavated, or such other quantity as the party of the first part may require for broken ashier masonry on said job, shall be quarried or split up by the said parties of the second part, in such a manner as to give two level beds, and one face to each stone, at such an angle to the.bottom bed of said stone as the upright position of the wall may require, and the two ends shall be at right angles to the face,” etc.

As has been said, there is no question as to the actual excavation of rock made by the plaintiffs, and fundamentally the contract called for but two kinds of work,—excavation of rock and of earth; but it is contended that the plaintiffs did not quarry and split the stone for broken ashier masonry” in exact accordance with the above terms. It is to be noted, first, that the contract did not call for the quarrying of all the stone excavated in such a manner as to be available for broken ashier masonry.” The plaintiffs, in the execution of their contract, were to furnish a certain amount of stone so quarried, but the agreement fails to specify at what intervals it should be supplied. There is no question that “ broken ashier masonry ” stone was furnished, and, according to some of the testimony, in compliance with the strict terms of the contract. Further, the defendant retained a sum of money from payments due the plaintiffs, for the purpose of dressing certain of the stone, so as to form it as required. The rock excavated was found, in places, to be of a nature little adapted for quarrying and splitting, in the manner required, as nearly as possible. Moreover, performance of the contract having prevented, it cannot be said the full amount ©f stone for “ broken ashier masonry ” called for would not have been furnished by the plaintiffs at the time of its completion had they been unobstructed. Such being the case, it is not to be held that the plaintiffs failed in performance of their work, and the above facts also bear against the counterclaim for sums expended in dressing and facing the stone, apart from the fact, as pointed out by the learned trial judge, that the proof as to the amount so expended was insufficient to form the basis of a recovery by the defendant.

Certain lesser items of the plaintiffs’ recovery are found to have been properly allowed; in fact, no point is raised but with regard to the claim for damages occasioned by the defendant’s delay of the plaintiffs’ work, and the record amply supports the finding below in this instance.

We are impelled, however, to the view that the allowance to the plaintiffs of $3,280 for extra work done upon embankment was unauthorized, since it clearly appears that this work was assumed by the terms of their contract. This contract provided (paragraph 6):

“The parties of the second part shall well and duly observe and follow all provisions of said contract, made by the party of the first part and the said city, and the specifications thereof, so far as the same affect or relate to work herein agreed by them to be performed, or any part thereof; and they especially agree to do and perform all such work or service as the party of the first part may be required to do under the headings 1 rock excavation,’ ‘ earth excavation,’ and ‘ embankment,’ in said specifications, not herein otherwise provided for. ”

It is to be noticed that the clause “ not herein otherwise provided for ” had reference to the observance of the city’s specifications touching each of the three headings “ earth,” “ rock,” ánd “ embankment,” and the plaintiffs’ contract, in another paragraph, contained a materially different provision from that specified by the city with regard to the rock excavation, to wit, the preparation of stone for “ broken ashier masonry.” Hence, in order that a meaning may be given to the excepting clause, resort need not be had to a strained construction of any provision of the contract touching the embankment work, and a reasonable interpretation of the clause next to be noticed, and upon which the recovery appears to have been based, militates against the respondents’ claim. The second paragraph of the plaintiffs’ contract, as originally drafted by Dwyer, read:

“ All earth or soil found in the earth excavation shall be removed and be deposited by the parties of the second part, as directed by the party of the first part, and, if necessary, shall be first piled, and afterwards spread over the embankment.”

Before execution of the instrument, the words “ and, if necessary, shall be first piled, and afterwards spread over the embankment,” were stricken out at the plaintiffs’ instance, and this appears to have been taken by the trial court negatively, as some expression of an intention that the embankment work was not to be assumed. In the first place, we observe that the words stricken out recognized the existence of embankment upon which the earth should be spread. Hence, it cannot be inferred that the words themselves called for the construction of embankment; that is, that they merely expressed, in another form, the requirements of paragraph 6, above quoted. Thus, the act of striking them out did not evidence an intention to dispense with the specific obligation assumed to do such work. Further, it appears that the piling of earth formed no part of the work upon embankment, according to the city’s specifications, nor did such specifications call for spreading, after the labor, in its numerous details, as required in the making of embankment, had been performed. The only effect to be reasonably given in the act of striking out the words noted appears to be that the plaintiffs did not agree to assume any further burdens under the contract, but certainly no intention to annul the expressed provisions of the agreement calling for embankment work can be gathered. It may be that the plaintiffs entered into a losing venture, but their contract is unambiguous in its terms, and, as framed, defines the rights of the parties in this case.

The only exception taken upon the trial which might call for any discussion raised the point as to the admissibility of the testimony showing that the words referred to in paragraph 2 were actually contained in the proposed contract, and afterwards stricken out; but our conclusion upon the question of extra work renders consideration of the ruling unnecessary.

The judgment must be reversed, and a new trial ordered, with ■costs to the appellant to abide the event, unless the plaintiffs stipulate to reduce the amount of the judgment by the sum of .$3,-280, in which event the judgment is affirmed, with costs.


author: McAdam, J.

text:
    John McCormack, Pl’ff, v. Mayor, Aldermen and Commonalty of the City of New York, Def’t.

      (New York Superior Court, Trial Term,

      Filed October, 1895.)

    Municipal corporation—Sunday—Extra compensation.
    A district superintendent of New York city street cleaning force, whose compensation is fixed at a certain salary a year, is not entitled to extra pay for work performed on Sunday.
    Action by John McCormack against the mayor, aldermen, and commonalty of the city of Mew York.
    The action is to recover $246.86 for services alleged to have been rendered by plaintiff, as district superintendent in the department of street cleaning, between April 26, 1894, and March 5, 1895, both dates inclusive. The plaintiff was appointed under chapter 368 of the Laws of 1894, which amends section 704a, which was added to the consolidation act (section 704) by chapter 269 of the Laws of 1892. The section which relates to this dispute is as follows: “ * * * The annual salaries and compensations of the members of the uniformed force of the department of street cleaning shall be fixed by the board of estimate and apportionment, and shall not exceed the following:
    Of the general superintendent, three thousand dollars; of the assistant superintendent, two thousand five hundred dollars; of the superintendent of stables, two thousand dollars; of the master mechanic, one thousand eight hundred dollars; of the superintendent of final disposition, two thousand dollars; of the assistant superintendent of final disposition, one thousand five hundred dollars; of the district superintendents, one thousand eight hundred dollars each ; of the time collectors, one thousand two hundred dollars each; of the section foremen, one thousand dollars each; of the dump inspectors, one thousand dollars each; of the assistant dump inspectors, nine hundred dollars each ; of the tug and scow inspectors, one thousand dollars each ; of the dump boardmen, seven hundred and twenty dollars each; of the sweepers seven hundred and twenty dollars each; of the drivers, seven hundred and twenty dollars each; of the stable foremen, one thousand two hundred dollars each; of the assistant stable foremen, nine hundred dollars each; of the hostlers, seven hundred and twenty dollars each, and extra pay for work on Sundays. * * ' * ” The claim for extra pay rests upon the use of the words “ extra pay for work on Sundays ” in connection with compensation of hostlers; the plaintiff’s contention being that these words apply to each of the officials of the uniformed force whose offices are created and compensation defined by the section quoted. In fixing the amount of his claim, the plaintiff allows 313 working days to the year, which at $1,800 per annum, makes $5.75 per day, or $246.86 for the forty-six days’ work in question. There is no proof that the defendants in any official form fixed any specific compensation for extra work, such as the plhintiff claims to have rendered; and simply because he did forty-six days’ work upon Sundays, which -he maintains Was not included in his working time, he arbitrarily fixes his compensation therefor in the manner stated.
    ■ The board of estimate apportionment on July 31, 1894, passed the following resolution: “Resolved, that the annual salaries and compensation of the members of the uniformed force of the department of street cleaning shall be and are hereby fixed at the amount stated in the statute as quoted in the foregoing preamble, to take effect from and after April 26,1894, the day of the passage of chapter 368, Laws 1894.” On December 29, 1894, the then commissioner of the- department wrote to the board, calling attention to the fact that it had required him to submit a statement showing the amount necessary to be appropriated to pay members of the uniformed force of his department for Sunday work. In the letter he refers to an opinion said to have been delivered by the corporation counsel, in which the latter is reported as saying: “The statute therefore contemplates that the annual salary shall be a fixed sum, covering all services rendered upon ordinary working days of the year, and that, in addition thereto, extra-pay shall be given to the members of the uniformed force for Sunday work, and that the board shall fix the annual salary, and also the extra pay for Sunday.”
    After receiving this letter, the board, in making its final estimate for the different departments allowed to the department of street cleaning the sum of $2,396.000 stating that the appropriation includes all necessary expenses required for Sunday work; but the particulars thereof are not given, so that the action of the board must be read in the light of the directions of the statute. Plaintiff’s yearly salary was regularly paid in monthly installments of $150 each, and receipted for. He evidently founds his claim upon the act of 1894, supra, the alleged construction imputed to that act by the corporation counsel, and the action of the board of estimate and apportionment thereon.
    The defendants deny all liability.

      Thomas O' Callaghan, for pl’ff; Francis M. Scott, and William-L Turner, for def’ts.
   McAdam, J.

The plaintiff’s case certainly cannot be upheld if reliance is to be placed on the punctuation of statute. Different punctuation would be needed to indicate that the legislature intended that “extra pay forwork on Sundays” should apply to all officials enumerated in the act. Instead of a comma, which is actually used after the word immediately preceding “ and extra,” etc., a semicolon would have been the proper mark The legislature probably had in view the fact that hostlers are the only ones of whom it can be said that in season and out of season the nature of their employment necessitates Sunday work, and intended that they, and not the other employes enumerated, should be compensated for the extra labor which their duties imposed. And while it has been held that punctuation does not control the interpretation of a statute, and that it may be disregarded when a result will be reached that would lead to an absurdity, yet the punctuation may be some indication of the meaning, and the legislative intent may often be determined from it. End. Interp. St. § 81.

Since the statute requires the intervention of the board of estimate and apportionment, whose duty it is to provide, not only for the annual salaries of members of the uniformed force of the department, but pay for extra work as well, a recovery for extra pay for work on Sundays can only be had upon an allegation of proof that the board has by legal sanction acted, and fixed the amount of such extra compensation. This element is lacking in the plaintiff’s case.

Indeed, the plaintiff’s salary cannot under statute exceed $1,800-, and that is the sum at which it was fixed by the board. The provision in the act as to extra pay on Sundays having no relation to the position he occupied, the board could not allow any compensation in addition to that specially prescribed by the statute itself. The board did not assume to make a per diem, monthly, or yearly allowance to members of the ununiformed force who worked on Sunday ; nor can it be inferred that there is includéd, in the final estimate of $2,396,000, extra pay to be given for Sunday work, at the same rate provided by the annual salary for weekday work. This is especially so in regard to members of the ununiformed force not hostlers, for as to such persons there was no authority in the act to make extra compensation, and it cannot be said that the board assumed to do that which it had no authority to do.

“It is a well-settled rule that a person accepting a public office, with a fixed salary, is bound to perform the duties of the office for the salary. He cannot legally claim additional compensation for the discharge of these duties, even though the salary may be a very inadequate remuneration for the services. Nor does it alter the case that by subsequent statutes or ordinances his duties within the scope of the charter powers pertaining to the office are increased, and not his salary. Whenever he considers the compensation inadequate he is at liberty to resign. The rule is of importance to the public. To allow changes and additions in the duties properly belonging, or which may properly be attached, to an office, to lay the foundation for extra compensation, would introduce intolerable mischief. The rule, too, should be rigidly enforced. The statutes of the legislature and the ordinances of our municipal corporations seldom prescribe with much detail and particularity the duties annexed to public offices, and it requires but little ingenuity to run nice distinctions between what duties may, and what may not, be considered strictly official, and, if these distinctions are much favored by courts of justice, it may lead to great abuse. Not only has an officer, under such circumstances, no claim for extra compensation, but a promise to pay him an extra fee or sum beyond that fixed by law is not binding, though he renders services and exercises a degree of diligence greater than could legally have been requiaed of him.” Dill. Mun. Corp. (fourth ed.) sections 233, 234.

These principles have been repeatedly sustained. Haswell v. Mayor, etc., 81 N. Y., at page 259; Palmer v. Mayor, etc., 2 Sandf. 318; People v. Supervisors of City and County of New York, 1 Hill, 362; Hatch v. Mann, 15 Wend. 44; Waterman v. Mayor, etc., 7 Daly, 489; Wendell v. City of Brooklyn, 29 Barb. 204; People v. Supervisors of Albany, 12 Wend. 257; Bright v. Supervisors, 18 Johns. 242; Mallory v. Same, 2 Cow. 531, 533. It is not less difficult to recover for extra compensation against a public, than a private employer, and the evidence here would not establish a valid claim against either. It is clear that,.where a stipulated remuneration has been agreed upon, the servant has no claim to additional remuneration on the mere ground of his performance of additional services. Unless he can prove some contract, either express or implied, on the part of his master, to pay him an increased salary for bis additional services, he can recover no remuneration for them. Smith, Mast. & Serv. (3d ed.) p. 160. Thus, where a clerk to the commissioners of land tax employed the plaintiff as his deputy, at a salary of £100 a year, and on new duties being imposed, which gave the clerk additional work, the plaintiff also performed that, it was held that he was not legally entitled to any additional salary on that account; Lord Kenyon observing th'at, if he was, every porter in a shop, or clerk in an office, would, upon an increase of his master’s business, be equally entitled to demand an increase of wages. Id., and cases cited. Moreover, a party claiming extra pay must show a contract for extra work. Moffatt v. City of Brooklyn, 1 N. Y. Supp. 781. See, also, McGovern v. Railroad Co., 28 How. Prac. 499. All services rendered under a contract are deemed to have been included in it (Guthrie v. Merrill, 4 Kan. 187); and where the statute regulates the matter, while the servant may insist upon his" rights, and a refusal to labor longer will not be regarded as such insubordination as will justify his discharge, yet, if he voluntarily labors more hours each day than is reasonable, or than the statute fixes as the limit of a day's work, he can make no claim for extra compensation on that account. Luske v. Hotchkiss, 37 Conn. 219. A servant is not bound to labor on the Sabbath, and if the master compels him to do so, it furnishes a good cause for leaving his service. Com v. St. German, 1 Browne (Pa.) 24; Warner v. Smith, 8 Conn. 14; Berry v. Wallace, Wright, 657. But if he does perform services for him upon the Sabbath, without any special request or promise to pay for the same, no extra charge can be made therefore, even though the work was of that class regarded as necessary; the law regarding all the service performed by the laborer during the term, in the absence of special request or promise, as being included in the contract, and compensated for by the compensation therein provided. Guthrie v. Merrill, supra; Bennett v. Robinson, 18 La. Ann. 204. Under the “eight hour law’’ (chapter 385, Laws 1870) an employer is not liable to an employe hired by the day for labor beyond the statutory time, unless it was provided for in the contract of employment. The intent of the act was to place the control of the hours of labor within the discretion of the employe, giving him the privilege, at his option, to refuse to work beyond the eight hours, or to secure extra compensation for extra work by stipulation in the contract of employment. In the absence of any such stipulation, the language of the act repels any inference of an intent to confer a right upon an employe to charge for more than one day’s labor for services rendered in any calendar day, and for such services he may not demand any extra compensation. McCarthy v. Mayor, etc., 96 N. Y. 1.

It is clear that no liability attached to the defendants to make any special compensation for the alleged extra work, and they are entitled to judgment.


author: GtldersleeveJ J.

text:
    Russell A. Oviatt, Pl’ff, v. Nellie M. Oviatt, Def’t.

      (New York Superior Court, Special Term,

      Filed October, 1895.)

    Pleading—Bill oe particulars—Divorce.
    A bill of particulars as to alleged acts of adultery in a divorce suit will be denied, where the complaint names the places where the alleged acts were committed and gives the name of one of the persons with whom such acts were alleged to have been committed, though the dates are somewhat indefinite.
    Motion for a bill of particulars.

      A. M. Sanders, for pl’ff; Nichols & Bacon, for def’t.
   GtldersleeveJ J.

It does not seem to me that a bill of particulars should.be ordered in this case. The action is for divorce, on the ground of adultery. The complaint names the places where the alleged acts of adultery were committed, also gives the name of, at least, one of the alleged co-respondents. It is true that the dates are somewhat indefinite, but the information sought for lies peculiarly within the knowledge of the defendant, who seeks it; and there is little danger of undue surprise at the trial. The motion should therefore be denied. See Fink v. Jetter, 38 Hun, 163. No costs.

Motion denied, without costs.


text:
    The People ex rel. Oscar Thorn, Pl’ff, v. Jeremiah Pangburn, Jr., Def’t.

      (New York Superior Court, Special Term,

      Filed October, 1895.)

    1. Elections—Ballots—Two names for same office.
    Where there is a printed name upon a ballot, and a name written under it without erasing the printed name, it will be presumed that there was a failure to erase the printed name by inadvertence, and, in the absence of a statute requiring the vote to be rejected, it will be counted as a vote for the written name.
    2. Same—Estoppel.
    Where a person apparently acquiesces in the direction of the chairfnan that neither candidate has the majority of votes required by the by-laws, by again presenting himself as a candidate, and, though defeated on the second, he claims title under the first ballot, his acts cannot estop the state from having the validity of the election dependent upon the first ballot determined.
    Proceeding in the nature of a quo warranta by Oscar Thorn against Jeremiah Pangburn, Jr. Judgment for relator.
    The action is in the nature of a quo warranta, instituted by the attorney-general on behalf of the people of the state, to try the title to the office of secretary of the Retail Goal Exchange of the City of New York, a domestic corporation doing business in said city. Oscar Thorn, the claimant of the office, is joined as relator, and Jeremiah Pangburn, Jr., the incumbent of the office, is made defendant on the allegation that since December 21, 1894, he has usurped the office, and unlawfully exercised the functions thereof. It appears that on the evening of the day mentioned an election was held, pursuant to the by-laws of said corporation, for the selection, among others, of a secretary of the corporation, to hold office for one year thereafter. The regular ticket, containing the names of candidates, one for each of the offices to be filed, was furnished to all members who desired to vote. On this ticket was printed “Jeremiah Pangburn, Jr.,” for secretary. Forty-two votes were received, and on being counted by the tellers it was found that for the office of secretary nineteen ballots contained the printed name of Pangburn, while twenty-one had the printed name of Pangburn stricken out, and that of Thorn, the relator, written in pencil underneath. This left Pangburn with nineteen and Thom with twenty-one votes. Upon the two remaining ballots, concerning which the dispute arose, appeared “ Jeremiah Pangburn, Jr.,” in print and unerased; and underneath, in pencil, “Oscar Thorn.” These votes, if credited to Thorn, would have given him twenty-three votes against Pangbnrn’s nineteen,—a majority of the entire number of votes oast. The tellers decided that, as the two ballots contained the names of two persons for one and the same office, they were void, and, under the provision of the by-laws (article 14, section 4) that a majority vote of the members present shall be necessary to elect,” there had been no legal election; whereupon a new ballot was ordered, which resulted in Pangburn’s favor, and he was accordingly declared elected. The people and the relator contend that the two ballots declared void should have been counted in favor of the latter, and that, so counted, he had a majority of all the votes cast, and was duly elected. The determination of the issue involved depends upon whether these two ballots should have been counted in the relator’s favor, or were, as the tellers held, void; and whether, by the acquiescence of the relator in the new election, he was concluded by the result thereof.

      1 hep. S'. Hancock, Atty. Gen., and E. A. B. Dayton, for pl’ffs; ■Jas. K. Duffy and L. Wertheimer, for def’t.
   McAdam, J.

As to the legal effect of a ballot containing two names for one office, there is an apparent confusion in the books, which, however, on examination, is readily cleared up. Paine, in his work on Elections (section 554), says:

“ Suppose three persons to be voted for, when only two can be elected. What is the choice of the elector in such a case ? It is manifestly impossible to determine. Insertion in the ballot of a single name more than ought to be on it renders it as uncertain as though twenty were inserted. The result is that such a ballot is void for uncertainty. It fails to express the choice of the elector, and consequently cannot be counted as a vote. It is true that such a ballot furnishes evidence that there was an elector present at the election who attempted to vote. But that is not sufficient. The majority required to elect is not of those who vote and attempt to vote, but it is a majority of the legal votes. And in order to be counted as a vote, the ballot must express intelligibly the choice of the voter respecting the matter to be voted on.”

In harmony with the views of this author there are cases which hold that where, under one office, appear more names than persons to be elected for that office, the ballot cannot be counted for any of them. People v. Loomis, 8 Wend, 396; People v. Ames, 19 How. Prac. 551; People v. Cook, 8 N. Y. 67; Attorney Generat v. Ely, 4 Wis. 420 ; State v. Griffey, 5 Neb. 161; State v. Tierney, 23 Wis. 430; People v. Seaman, 5 Denio, 409; Election of School Directors, 6 Phila. 437; 6 Am. & Eng. Enc. Law, 345. Some of the cases were decided upon the peculiar phraseology of prevailing statutes and in determining their value that discriminating feature must always be kept in mind. Newton v. Newell, 26 Minn. 529. In all, the names voted appear upon the printed ballot. Here the relator’s name was written under the printed name of Pang-burn, and this circumstance presents another feature which distinguishes this case from those cited. It is the settled law of our state that where there is a printed name upon a ballot, and a name written under it, without erasing the printed name, it will be presumed that there was a failure to erase the printed name by inadvertence; and, in the absence of a statute requiring the vote to be rejected, it will be counted as a vote for the written name. People v. Saxton, 22 N. Y. 309 ; Wallace v. McKinley (1st Sess.) House Rep. 48th Cong. No. 1548; Campbell v. Morey, id. No. 1845. This proceeds upon the theory that the intention of the voter should in every instance-prevail, and that a person taking the pains to write the name of a candidate, where there is but one office, must be taken to have clearly expressed his preference, and such a ballot indicates a plain intention to substitute the written for the printed name as the voter’s choice. This construction seems to be the prevailing one, within the well-established rule that where there is any repugnancy between the written and printed portions of an instrument the written portion is to prevail over that which is printed. Delonguemare v. Insurance Co., 2 Hall, 589 ; Weisser v, Maitland, 3 Sandf. 318 ; Harper v. Insurance Co., 17 N. Y. 194; Benedict v. Insurance Co., 31 id. 389; Clark v. Woodruff, 83 id. 518; Hutt v. Zimmer, 78 Hun, 23; 60 St. Rep. 493. In Blockley Election, 2 Pars. Eq. Cas. 534, a contrary view was held, because the statute of Pennsylvania declared that a ballot containing two names for one office should be void, whether such names were printed or written thereon. A somewhat similar ruling was made under the statute of Minnesota, which declares such a ballot to be void (Newton v. Newell, supra), and this upon the theory that an effective intention cannot be inferred from a void act. But, in the absence of a statute declaring such a ballot void, the rule laid down in People v. Saxton, supra, controls. And where there appears to be a doubt whether the person intended to vote for two persons, or to substitute one name for the other, it becomes a question to be determined by the court from the circumstances of the case and the appearance of the ballot. People v. Love, 63 Barb. 535. The intention of the voter must be ascertained from the ballot, for if the elector should deposit the vote, and swear, ever so strongly that he intended it to be for a particular candidate, it could not be allowed to him, unless it appeared, upon other competent evidence, that his name was actually written or printed upon it. People v. Pease, 27 N. Y., at page 84.

The election here was at a meeting of the Coal Exchange, a private corporation, incorporated under the laws of this state, and neither the statute under which it was incorporated nor the bylaws enacted by the corporation itself .make the ballots containing the printed and written names void; hence they are valid under the controlling authorities, and the relator was duly elected. The tellers acted conscientiously; and in the belief that the two ballots were void, and neither candidate had the majority of votes required by the by-laws, the members, by direction of the chairman, proceeded to a new ballot. No objection was made to this course. The relator apparently acquiesced in it by again presenting himself as a candidate, and, although defeated on the second ballot, he claims title under the first. This might perhaps estop the relator if it were a private controversy between him and the defendant; but the state is a party, and the relator’s acts cannot. estop it from. Having the validity of the election dependent upon the first ballot determined. It might have been as well to allow the corporation to run the election in its own way, so long as the members were satisfied; but the state, by virtue of its prerogative, has interfered, and the question must therefore be decided according to legal principles. If the state succeeds, it is because the defendant was not duly elected, and it must necessarily follow that the relator is entitled to the office.

The people are, therefore, entitled to judgment of ouster, and the relator to judgment for the possession of the office with its emoluments.


author: Arnold, S.

text:
    In the Matter of the Application for Letters of Guardianship for the Persons and Estates of Jerome Alexandre et al.

      (Surrogate’s Court, New York County,

      Filed June, 1895.)

    Guardian—Testamentary—Surviving mother.
    Under chapter 175 of 1898, a father has no power by his will to appoint the surviving mother guardian of his infant children.
    Application for letters of guardianship of the persons and estates of Jerome Alexandre and Leonie Alexandre.

      Frank L. Hall, for petitioner.
   Arnold, S.

The petitioner is the mother of the infants in this proceeding, wherein she applies for letters of guardianship of their persons and estates. The father of the infants having deceased, the petitioner would be entitled to letters, pursuant to the provisions of Code, section 2827, upon proper application therefor, the minors being under the age of fourteen years. In such case, security must be required of her. Id. § 2830. But she makes application for letters without bond, under section 2852, as a guardian appointed by will. Her petition therefor is based upon the provisions of the will of her deceased husband, the father of the minors, which was admitted to probate in this county on October 31, 1894; such petition having been duly presented within three months thereafter. The testator, by his will, in terms, appointed his wife, the petitioner, guardian of such of his children as should be minors at the time of his death, which occurred August 8, 1894. By chapter 175, Laws 1893, the legislature of this state enacted an amendment to section 1, title 3, chapter 8, of the second part of the Revised Statutes. The effect of such an amendment was considered by the general term of the supreme court, in this district, in Re Schmidt, reported in 77 Hun, 201; 59 St. Rep. 772; and it was there held that it repealed all authority conferred by former statutes .upon the father to appoint a testamentary guardian during the lifetime of the mother, and that no such authority existed independent of statute. In that case the father, by will,, undertook to appoint guardians of his minor children. His wife was not one of the appointees, but she gave her written assent that letters should be granted to the nominees of the will, as testamentary guardians. The court held that such assent did not reInove the difficulty. It is argued here that the legislature never could have contemplated a case like the present one, or intended to forbid the appointment by a parent, in his will, of the surviving parent as guardian of their minor children. But if the power to make such appointment did not exist at common law, and it is not conferred by any statute, no force can be given to" it, if its exercise is attempted. I cannot see that the fact that the attempted appointment is of the surviving parent alters the case. She can apply for letters of guardianship, and can obtain them, upon giving the security required by law. This may involve some hardship, but that cannot be avoided. As the general term suggests in its opinion in the case cited, it is not well to take any risks in such matters.

The application must be denied.


author: GriLDERSLEEVE, J.

text:
    Miguel Camancho Roldan et al., Pl’ffs, v. Andrew F. Power et al., Def’ts.

      (New York Superior Court, Special Term,

      Filed November, 1895.)

    1. Pleading—Counterclaim.
    Bach of several counterclaims should be complete in itself, unaided by the denial or allegations of any other part of the answer in which it is set up, unless suitable reference is made thereto.
    2. Same—Negativing- inferences.
    A counterclaim for. the breach of a contract, which contains certain exceptions, is sufficient, if it does not negative such exceptions.
    3: Same—Claim against one of several plaintiffs.
    Defendants, in an action by a copartnership, cannot^ counterclaim on a demand for which only one of the plaintiffs is liable.
    4. Same—Assignee of note.
    A counterclaim in an action by an assignee of a note must allege that the assignment was after maturity of the note.
    5. Same—Monet had and received.
    In an action for money had and received, the plaintiff must aver that the money was received to the use of defendant, and that defendant promised to pay.
    6. Same—Assignee claim.
    A counterclaim for a demand, assigned to the defendant, must show that the assignment was made before the commencement of the action.
    7. Same—Special damages.
    The grounds upon which special damages are claimed must be specifically pleaded. •
    Demurrer to the counterclaims in the answer.

      Martin & Smith {Oeorge A. Strong, of counsel), for pl’ffs; Booihby & Warren {John W. Boothby, of counsel), for def’ts.
   GriLDERSLEEVE, J.

The material allegations of' the complaint are that the defendant Power made two promissory notes, dated February 1, 1893, payable to his own order, one for $2,120, at twelve months, and the other for $2,160, at sixteen months ; that Power indorsed and delivered both notes to the defendant Thurber; that Thurber thereupon indorsed the notes, and that they came to the possession of plaintiff.

The answer sets up three counterclaims, to which plaintiffs demur chiefly on the grounds: First, that they are not sufficient in law; second, that they are not.of the character specified in section 501 of the Code, because (1) they are not causes of action against the plaintiffs, nor (2) in favor of defendants, or one or more of them between-whom and plaintiffs a separate judgment may be had in the action. Another ground is stated, but it will not be necessary to consider it.

The allegations of the first counterclaim are, substantially, that on January 25 and February 1,1893, Roldan, one of the plaintiffs, was a special partner in the firm of De Losada & Co., who, at the ■former date, sold to the defendant Power their publication business, and the accounts and good will relating thereto, with certain exceptions; that both of the notes in question were delivered to De Losada & Go., while Roldan was a member of that firm, pursuant to the agreement of sale; that after the delivery of the notes to De Losada & Co., and before the commencement of this action, that firm collected $495.56 due to said business so sold, which moneys they did not deliver or account for to Power; and that the notes in question, if ever transferred to the plaintiffs by De Losada & Co., were transferred without consideration.

The second counterclaim is pleaded as follows: That after the making and delivery of the notes in suit to De Losada & Co., and while that firm had thém, and before this action was commenced, De Losada & Co. were indebted to the Thurber-Whyland Company, a corporation, for money had and received - from that company by De Losada & Co., in a balance of $2,062.46 over and above the cost of certain advertising done for that company by De Losada & Co.; that this claim “ has been assigned to, and is now owned by, the defendants ”; and that the notes, if ever transferred to the plaintiffs by De Losada & Co,, were transferred without consideration.

The third counterclaim is pleaded as follows: That in and by the bill of sale made by De Losada & Co., to Power, of “ said business and journal,” that firm and each and all of the partners agreed that, as far as possible, they would, transfer to Power the good will and connection of the “ said publication business ”; that after the notes had been delivered to De Losada' & Co., and while they still held them, they violated their contract with Power, and interfered with such connection, business, and good will, to defendants’ damage in $2,000.

I think the demurrer is well taken, and should be sustained on the grounds: First. That the counterclaims are all insufficient in law. Second. They are not of the character specified in section 501 of the Code, not being causes of action against the plaintiffs, nor in favor of the defendants, or one of them, between whom and the plaintiffs a separate judgment thereon may be had in this action. Although these counterclaims are set up in connection with certain denials and averments designed to raise an issue of fact, yet, in disposing of the demurrer, the counterclaims must be isolated from all other parts of the answer, and treated as if each counterclaim stood alone and constituted the whole defense to the action; for good pleading requires that each of several counterclaims shall be complete in itself, unaided by the denials.or allegations of any other part of the answer in-which it is set up, unless suitable reference is made thereto. Cregin v. Lovell, 88 N. Y. 258 ; McKenzie v. Fox, 29 St. Rep. 106; Reiners v. Brandhorst, 59 How. Prac. 91; 2 Wait. Prac. 332. Tested by this rule, the first counterclaim is insufficient for the following reasons :

First. The sale of the business, accounts, etc., by De Losada &, Go. to Power, was subject to “certain exceptions,” and it does not, appear but that the $495.56 collected by them was included in those “exceptions.” The pleader- should have negatived, by properaverments, the inference that this might have been the fact. Without such averments, his assignment of a breach of the contract was-fatally defective. The pleader should also have alleged that the-collections in question were wrongfully made. A counterclaim must be pleaded as an independent cause of action. Rice v. Grange, 131 N. Y. 149 ; 42 St. Rep. 747.

Second. The notes are alleged to have been delivered to De Losada & Go. “pursuant to the agreement of sale,” but it does not appear whether the contract, which embraced several items, was-entire or separable. It is essential that this should appear, for, if separable, some of the property sold having been delivered to-Power, the transfer of the notes was not wholly without consideration. There was, at most, a partial failure of consideration, and the notes would be good pro tanto in the hands of De Losada &- Go. or any subsequent holder, even assuming that they were originally without consideration.

Third. It is a very serious question whether such a claim, if Valid in other respects, could be enforced in this action against the-plaintiff Roldan, as he was a special partner, presumably by a limited copartnership. The statute in such case provides that in an action against a limited copartnership the special partner is not a necessary party, and probably he is not liable in any form of action as sole defendant, except where he is pursued on the ground of his strict statutory liability.

Fourth. But, if this counterclaim were well pleaded as to its-substantial facts, it cannot be allowed, because it is not a cause of' action against the plaintiffs, nor one upon which judgment could be rendered in this action between -Power and Roldan. The latter and the plaintiff Yan Sickel sue as copartners, and are not liable-jointly for an individual claim against one of them. Spofford v. Rowan, 124 N. Y. 108; 35 St. Rep. 65; McCulloch v. Vibbard, 51 Hun, 227; 21 St. Rep. 51; Campbell v. Sherman, 29 St. Rep. 156 ; Richards v. Reed, 26 N. Y. Supp. 540; Harrison v. Vanderbilt, 9 St. Rep. 810. The allegation of the copartnership of plaintiffs, not being denied in connection with the counterclaim, must be taken as true.

Fifth. Hypothetical pleading is bad, Goodman v. Robb, 41 Hun, 605 ; 5 St. Rep. 242, but if the notes were transferred to plaintiffs, as defendants aver, without consideration, that is wholly immaterial, for two reasons: (a) The Code (section 502, subd. 2) provides for letting in a counterclaim in an action upon a promissory note where it is transferred after maturity only; (b) the defendants have not shown, in setting up the counterclaim, either that the notes, in their inception, were without consideration, or that they were transferred to De Losada & Co. without consideration. On the contrary, as above remarked, there does not appear to have been more than a partial failure of consideration. Besides, the allegations of the complaint being undenied in this connection, it must be assumed that the notes were valid in their inception, and that the plaintiffs now hold them. If so, the legal presumption, without any special averment, is that they received them in good faith, before maturity, and for value. These last considerations are fatal to this counterclaim, even if the preceding views should not be correct.

The second counterclaim is stated in terms so obscure that it is difficult to determine what cause ai action the pleader intended to set up. Certainly there is a great paucity of facts in its statement. Doubtless a party may, under our system, resort to the brief statement of a cause of action for money had and received, peculiar to the common counts under the former practice; but then he must allege more than is stated in this case. He must aver that the money was received to the use of thé defendant, and that defendant promised to pay. Here, even the meager requirements of the common-law practice are not met, and there is no attempt to comply with the rule of the Code requiring a plain statement of the facts constituting the cause of action. The only facts alleged are that De Losada & Co. were indebted to the Thurber-Whyland Company in a balance of money had and received from it over and above the costs of certain advertising done for the company by De Losada & Co. The terms of the agreement which may be supposed to have existed between the parties are not stated, and it is impossible for the court to say that the statement of the counterclaim imports any legal liability whatever on the part of De Losada & Co. This counterclaim is also subject to most of the criticism passed upon the first. An equally radical and fatal defect in this counterclaim is the omission to allege that the demand in question was assigned t > the defendants before the commencement of this action. Code, § 501, 'subd. 2 ; Mayo v. Davidge, 44 Hun, 342; 8 St. Rep. 844; Blood v. Kane, 52 Hun, 225; 23 St. Rep. 298 ; Moody v. Steele, 3 St. Rep. 269.

In stating the third counterclaim the pleader evidently relied upon the aid of allegations contained in other parts of the answer to make out his cause of action. But, taking it by itself, as we must, it affords very slender information regarding the transaction therein referred to. Assuming, however, that the statement of the cause of action is good in all other respects, it fails to assigns sufficiently a breach of the contract in question. To allege merely that De Losada & Co. “broke and violated their contract” by interfering with “such connection” (whatever that may mean), to the damage of defendants in $2,000, does not satisfy the very moderate demands of our liberal system of pleading. The grounds - upon which special damages are claimed must be specifically pleaded. This is elemental in the law of pleading. Beegmann v. Jones, 94 N. Y. 51; Havemeyer v. Fuller, 60 How. Prac. 316.

The statement of this cause of action is also liable to the objections already noted in the case of the other counterclaims. There is here no attempt whatever to impeach the validity of the notes in the hands of the plaintiffs; so that, if the pleading were faultless, it could avail the defendants nothing by way of counterclaim. The demurrer to each of the counterclaims should be sustained, with costs.


author: Kennedy, S.

text:
    In the Matter of a Proceeding to Set Aside the Appraisal of the Estate of Sidney Smith, Deceased.

      (Surrogates Court, Madison County,

      Filed October, 1895.)

    1. Tax—Collateral inheritance—Concealment of facts.
    The concealment of facts by an administrator is not grounds for setting aside an appraisement of an estate under the collateral inheritance tax law of 1885..
    2. Same—Failure to appraise—Remedy.
    The failure to appraise a judgment in favor of the estate against one who is entitled to a distributive share of the estate greater in amount than the judgment, though erroneous, cannot be corrected by a proceeding to set the appraisal aside,' but only by appeal.
    3. Executors, etc.—Limitation—Right to retain.
    The right of an administrator to retain from the share of a distributee the amount of a debt due from him to decedent is not affected by the fact that such debt is barred by the statute-of limitation.
    Proceeding to "set aside the appraisal of the estate of Sidney Smith, deceased.

      H. M. Aylesworih, S. D. White, H. B. Coman, and F. B. Olcott, for comptroller; Man & Man and iS. M. Lindsley, for estate.
   Kennedy, S.

This is a proceeding to set aside the appraisal and assessment of the collateral inheritance tax upon the estate of Sidney Smith, deceased, upon the ground of alleged fraud and fraudulent concealment of facts by the administrator at the time of the appraisal of the estate in 1888.

We must deny the application for the following reasons:

Excluding the Adams judgment, to which we hereafter refer, the state claims that some of all of the committees who have had charge of Sidney Smith’s estate during his lunacy, from 1848, to his death, in 1886, have been guilty of great irregularities in the management of his property, and that, at the time of the appraisal, said committees were indebted to his estate in a large sum of money, which ought to have been taxed. Without examining the evidence to ascertain whether this claim is true or not, we shall hold as follows : -

At the time the assessment was made, the statute did not authorize the appraiser to subpoena and compel the attendance of witnesses for the purpose of ascertaining under oath the condition and amount of the estate, He was without power to make any investigation, save by personal observation and inquiry. In this case the appraiser did all that he was authorized or empowered to do under the law as it then was in determining the amount of property liable to taxation. Having made use of and exhausted every remedy then provided for the appraisal of this estate, the state is bound by his acts and conclusions, unless he committed errors for which an appeal might have been taken. The collateral inheritance tax act of 1885 imposed no duty or obligation upon the administrator of this estate to voluntarily aid the appraiser in any manner whatever in making the appraisal, or to make any statement, disclosure, or proof as to the condition or amount of the estate he represented any more than a private citizen is under obligation to inform the tax assessor, of the amount and condition of his property for the purpose of an assessment. We, therefore, hold that the administrator was not guilty of-any fraudulent acts of commission or omission in connection with the appraisal of this estate.

Even if the appraiser had been informed that there was irregularities in the management of the lunatic’s estate from 1848 to 1886, by reason of which the several trustees were indebted to said estate, he would have been justified, and we think it would have been his duty, to hold that the claims arising thereform had no fair market value, because he had no power to investigate the matter, and even if he had possessed the power," because of .the .long, expensive, and uncertain litigation that would have been necessary to ascertain the fact. In view of the statute as it was at the time of the appraisal, we think this estate, upon this branch of the case, has been legally submitted to the appraiser, and the assessment for this reason cannot be set aside, except for errors, for which an appeal is the only proper remedy.

2. It is claimed by the state that the balance due upon the Adams judgment, amounting to about $60,000, should have been áppraised. We so hold, but the remedy for the error was by appeal in due time from the assessment, and not by proceedings to set the same aside. The administrator had a lien and right of detention upon the distributive share of Adams in said estate to the amount of his indebtedness to it, which could have been enforced upon the judicial settlement of the estate by simply deducting the same from the amount to which he was entitled, and it would have been the duty of the surrogate to make the decree accordingly. It is an undisputed fact that the Adams share of the esate was in excess of the amount due upon the judgment, and also that the administrator had sufficient funds in his hands to pay it. Under such circumstances, the opinions of Smith or Underhill to the market value or collectibility of this claim are' of no consequence ; for, upon the facts above stated, the law had settled the question of its value by declaring that the administrator had a lien or right of detention upon sufficient assets then in his hands to pay the same in full, and provided a remedy for its collection. Even if the Adams claim had not been put into judgment, the .statute of limitations would not have been a bar to the recovery of the debt in the manner above stated. Rogers v. Murdock, 45 Hun, 30; 9 St. Rep 660. The appraiser may have been misled by the statements of Smith and Underhill because he was not aware of the law applicable to this branch of the case. His conclhsion as to the value of the Adams claim was erroneous, but the error was one that should have been corrected by appeal from the assessment.

3. This surrogate’s court has heretofore held, by its order of March 16,1889, that the proceeds of Alabama lands were exe mpt from taxation, and no reason appears why the ruling upon that question should be changed.

An order will therefore be entered dismissing these proceedings, with $250 costs, to be paid by the comptroller of the state of New York.

Ordered accordingly


author: G-iegerich; J.

text:
    Margaret Shea, Pl’ff, v. Sun Printing and Publishing Association, Def’t.

      (New York Common Pleas, Special Term,

      Filed October, 1895.)

    Libel—Libelous words—Question for jury.
    The complaint for libel, in stating that a married woman was living with a man other than her husband, is not demurrable, but presents a question .for the jury, whether tue word “ living ” imputed improper conduct to her.
    Demurrer to the complaint on the grounds that it does not state facts sufficient to constitute a cause of action.

      Duncan Edwards, for pl’ff; Franklin Bartlett, for deft.
   G-iegerich; J.

The article complained of as containing a libel, so far as it is material, is as follows (the italicised portions being headlines in the article.as published):

Persecuted by Dr. Bell. Edward J. Shea is said to be the victim of the man viho lives with his wife. Edward J. Shea, who was committed to Ludlow Street jail on October 30th, for defaulting in alimony, was brought before Judge Andrews to-day in supreme court chambers, on a writ of habeas corpus obtained by his counsel, Frederick Keller, on Friday. Mr. Keller has secured two affidavits from Mrs. Annie Pierce and Mrs. Mary McNally, tending to show that Shea has been persecuted through Dr. Bell, of 160 West Eighty-third street, with whom Mrs. Margaret Shea, the plaintiffs wife in this action, is now living.”

A libel is defined to be:

ll A malicious publication by writing, printing,^picture, effigy, sign, or otherwise than by mere speech, which exposes any living-person, or the memory of any person deceased, to hatred, contempt, ridicule or obloquy, or which causes, or tends to cause, any person to be shunned or avoided, or which has a tendency to injure any person, corporation or association of persons, in his or their business or occcupation.” Pen. Code, § 242; Turton v. New York Recorder, 3 Misc. Rep. 314, 317; 52 St. Rep. 398.

Judge Pryor, in speaking for this court in Witchers v. Jones, 43 St. Rep. 151, says:

“ By. all authorities, any unprivileged publication of which the necessary tendency is to expose a man to hatred, contempt, or ridicule, is a libel."

Language is libelous which tends to degrade a person in society. 13 Am. & Eng. Enc. Law, p. 295. Is it libelous to_ write of a married woman that she is living with a man not her husband? The demurrer contends that this statement in the above article has a perfectly harmless meaning. It is possible to ring the changes upon the many meanings of the word “ live.” The inquiry, however, is not whether the words could have been understood in any other way than as imputing a disgraceful charge to the plaintiff, but whether that is the construction which common people naturally put upon them. Ryckman v. Delavan, 25 Wend. 186, 201; Byrnes v. Matthews, 12 St. Rep. 74, 79, 80, and this question is for the jury. “If .the application or meaning of the words- is ambiguous, or the sense in which they were used is uncertain, and they are capable of a construction which would make them actionable, although at the same time an innocent sense can be attributed to them, it is for the jury to determine, upon all the circumstances, whether they are applied to the plaintiff, and in what sense they were used ” Per Andrews, J., in Sanderson v. Caldwell, 45 N. Y. 401. The cases of Ryckman v. Delavan, supra; Patch v. Tribune Assn., 38 Hun, 368, 369; and Woodruff v. Bradstreet Co., 116 N. Y. 217, 220; 26 St. Rep. 523, are to the same effect. The inunendo, if any is necessary, is, in my opinión, sufficient. Eor these reasons the demurrer should be overruled, and there should be judgment for the plaintiff overruling the demurrer, with costs; with leave to the defendant to answer within twenty days upon payment of costs.


text:
    Charles F. Mattlage, App’lt, v. New York Elevated Railroad Company et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed November 4, 1895.)

    1. Deeds—Construction.
    Of the grantor of land which is described as bounded by a street or highway, is at the time of the conveyance also seized in fee of the land over which such street or highway extends, he will be presumed to have included the last mentioned land to the center, and- courses, distances and dimensions must yield to boundaries, unless , an intention that the former shall be controlling appears."
    2. Damages—Public use.
    If so much of the property as is actually taken for a public use the measure of just compensation provided for by the constitution is its value, without deduction for benefit to the remainder.
    3. Injunction—Substantial injury.
    In order to defeat an abutter’s claim for injunctive relief, it is incumbent upon the elevated railway to show that the land taken is of no, or only of nominal, value.

      4. Same.
    The construction and operation of an elevated railway impose upon the land an additional burden, and is, to that extent, an appropriation of the owner’s rights of property.
    Appeal from a judgment, denying injunctive relief, and yet awarding to plaintiff nominal damages and "costs.

      Charles D. Ridgway, for app’lt; Julien T. Davies and Brainard Tolies, for resp’t.
   Bischoff, J.

— The premises involved are situated "on the corner formed by the intersection of the westerly side of Greenwich street with the southerly side of Warren street, in the city of New York, being twenty-six feet and six inches in front on Greenwich street; and the action was brought to enjoin the maintenance and operation of the defendants’ elevated railway in Greenwich street in front of the premises, as well as the maintenance of their station extending partly on Greenwich street and partly on Warren street Upon the trial, however, the plaintiff disclaimed all contention with regard to the station.

The plaintiff claimed and the trial "court adjudged him to be the owner in fee of the premises above alluded to, as well as of the land contiguous thereto and forming the bed of Greenwich street, to the center thereof, upon which the defendants’ railway was constructed, subject to the perpetual use of the land last alluded to for the purposes of a public street. Such being the facts it was error for the trial court to conclude that the damage which resulted to the plaintiff from the defendants’ appropriation of the land in Greenwich street was nominal only, and upon that ground to refuse him injunctive relief.

At the time of the conveyance hereinafter next to be alluded to, the premises in question, including the soil of Greenwich street, were a part of the land under the waters of the Hudson river, and were owned by the corporation of the city of New York, the upland contiguous to such land under water being at the time the property of the corporation of Trinity Church. . Greenwich street, as such, does not appear then to have existed in front of the premises involved. On November 18, 1773, the corporation of the city of New York conveyed to the corporation of the TrinChurch “all the land, ground, soil, and water lots” extending 200 feet beyond low-water mark, “situate, lying, and being in front of ” and “ contiguous to ” the land of the grantee, with all the estate, right, title, possession, use, interest, property, claim, and demand whatsoever of ” the grantor in and to the land under water and first above alluded to. By the deed of conveyance, the grantee covenanted to “leave a street of sixty-six feet, English measure, in breadth,” to be known as Greenwich or First street, and to extend along high-water mark of the land conveyed; the same “to remain a public street of said city.”

The grantee furthermore covenanted to-cause such street, with others, to be made and completed by the 25th day of September, 1780; to maintain the several streets at all times thereafter in good and sufficient repair; and that the same should continue forever “for the free use and common passage of, and public streets and ways for, the inhabitants of the city of New York, and and all others passing or returning through or by the same, in such manner as the other public streets of the same city now are or lawfully ought to be.” No part of the tract of land described in the premises to be the subject-matter of the conveyance was excepted; and throughout the conveyances of the premises in suit, from the deed by the corporation of Trinity Church down to and including the one to the plaintiff, the same were described as bounded “easterly in front by Greenwich street.”

We are convinced of the accuracy of the conclusion that the plaintiff is the owner in fee of so much of the bed of Greenwich street as is contiguous to and in front of his remaining land, to the center thereof. As we construe the conveyance to the corporation of Trinity Church, it operated to vest the fee of the entire tract of land under water in the grantee. Giving effect to the grantee’s covenant to open and maintain Greenwich street as a reservation by the grantor, such reservation is fully satisfied if ex-, tended to an easement—a right of way—only; and the reservation fo the easement, because of obvious conflict, excludes intention to claim the continued ownership of the fee. .

Applying, next, familiar rules governing the construction of grants of land abutting upon streets or highways to the subsequent deeds, the plaintiff’s succession to the fee of the soil of Greenwich street is apparent. These rules are that if the grantor of land which is described as bounded by a street or highway, is at the time of the conveyance also seised in fee of the land over which such street or highway extends, he will be presumed to have included the last mentioned land to the center, Insurance Co. v. Stevens, 87 N. Y. 287, 291; and that courses, distances, and dimensions must yield to boundaries unless an intention that the former shall be controlling clearly appears. Yates v. De Bogert, 56 N. Y. 526 ; Dunham v. Williams, 37 id. 251; 2 Am. & Eng. Enc. Laws, 507. For so much of the property as is actually taken for a public use, the measure of just compensation provided for by the constitution is its value, without deduction for benefits to the remainder. Henderson v. Railroad Co., 78 N. Y. 423, 433 ; Bohm v. Met. E. Railway Co., 129 id. 576; 42 St. Rep. 247; Mattlage v. N. Y. E. Railroad Co., 1 Misc. Rep. 339; 48 St. Rep. 683.

Obviously, therefore, the case at bar is distinguishable in that regard from the case of the taking only of the easements of light, air, and means of access appurtenant to abutting land. Those easements, being incapable of enjoyment except in connection with the land abutting upon the Servient land, have no actual value apart therefrom. Bohm v. Railway Co., supra. Hence, when they constitute the only property taken, the inquiry with regard to the compensation to be made is appointed to ascertain the effect of such taking upon the dominant land, in which case resultant benefits are to be considered in arriving at -the extent of owner’s loss. Newman v. Met. E. Railroad Co., 118 N Y. 618; 30 St. Rep. 36. But the owner of land which is subject to use as a public street or highway has substantial rights therein. He may excavate the soil under the surface, and use the space, McCarthy v. Syracuse, 46 N. Y. 194, or authorize others so to do. He possesses absolute dominion over the land for all purposes not inconsisent with the public easement and the proper exercise of the police power of the state. If the street or highway is abandoned, the land reverts to him, 24 Am. & Eng. Enc. Law, 122. His rights can be taken from him only in the exercise of the power of eminent domain, and upon the payment of just compensation, Williams v. Railroad Co., 16 N. Y. 97, 108; and just compensation in such a case implies that it should be of a substantial character, In re City of Buffalo (City of Buffalo v. Pratt; Super. Ct. Buff.), 39 St. Rep. 417; affirmed, 131 N. Y. 293; 43 St. Rep. 278. A further distinction is here to be noted between the present case and one involving the conversation of an existing0 right of way in favor of abutting owners into a public easement •for the same uses, in which the latter case no actual damage is Reid to result. In re Adams, 141 N. Y. 297; 57 St. Rep. 408.

In determining, for the purpose of just compensation, the value ■of the property which is to be taken for a public use, the inquiry is: What is the property “ worth in the market, viewed not merely with reference to the uses to which it is at the time applied, but with reference to the uses to which it is plainly adapted,—that is to say, whatsis it worth from its availability for valuable uses? ” Boom Co. v. Patterson, 98 U. S. 403; Lewis, Em. Dom. § 479 ; Suth. Darn. § 1074. Measured by this' rule, the testimony of the plaintiff’s experts, called to show a substantial value of the land in Greenwich street, is in part worthless, because of its extremely •speculative character (Lewis, Em. Dom. § 480); but it sufficiently appears from the testimony of Plars, one of such experts, which in that regard was competent and uncontradicted, that the land was available for particular uses, and as to such uses was of substantial value. True, expert testimony, as mere opinion evidence, is not to be regarded as conclusive. Head v. Hargrave, 105 U. S. 45; Forsyth v. Doolittle, 120 U. S. 73, 77; Rog. Exp. Test. p. 486, § 207. Such testimony, however, is competent esc necessitate. Clark v. Baird, 9 N. Y. 183, 196. It is therefore to be considered, and if corroborated by probability, and the circumstances of the particular,case in which such testimony must needs be resorted to, it should be given due weight. Expert testimony regarding value when the property, as here, is in some respects, at least sui generis, may not afford more than a vague and unsatisfactory basis for the award of adequate compensation; but, even, so, relief is not upon that account to be withheld, if it clearly appears that substantial damage was inflicted by the taking of the property. It cannot avail the wrongdoer, for the purpose of immunity, that the extent of his wrong is not capable of precise measurement in money. Drucker v. Man. Railway Co., 106 N. Y. 157, 164; 8 St. Rep. 599.

If all the above testimony above alluded to be rejected, it follows, notwithstanding, that the. plaintiff should have prevailed m the action. Injunctive relief is not to be extended except where the act sought to be restrained inflicts substantial injury, Gray v. Man. Railway Co., 128 N. Y. 499; 40 St. Rep. 478; Brush v. Railway Co., 13 N. Y. Supp. 908; but the rule obtains only when it appears affirmatively that the injury is technical only and trivial. Such were the cases last above cited and those referred to in the opinions therein. Spell. Extr. Rel. § 286. Here, however, the rights of the plaintiff as the owner of the land subject to an easement for the street or highway uses are prima facie of a substantial character. Hence a wrongful appropriation thereof works substantial injury to him. City of Buffalo v. Pratt, supra. In order to defeat the plaintiff’s claim to injunctive relief, it was incumbent, therefore, upon the defendants, to show that the land taken was of no, or only of nominal, value. Ho such evidence was adduced.

That the construction and operation of an elevated railway thereon imposes upon the land an additional burden,—one not within the contemplation of ordinary street or highway uses,—and is to that extent an expropriation of the owner’s rights of property, was definitely settled by Story v. Railroad Co., 90 N. Y. 122; Lahr v. Met. E. Railroad Co., 104 N. Y. 268; 4 St. Rep. 340 ; Drucker v. Man. Railway Co., 106 N. Y. 157; 8 St. Rep. 599; Abendroth v. Man. Railway Co., 122 N. Y. 1; 33 St. Rep. 475; and Kane v. N. Y. E. Railway Co., 125 N. Y. 164; 34 St. Rep. 876; and, for the continuing trespass which results from the maintenance and operation of the railway, the owner is entitled to injunctive relief Williams and Henderson Cases, supra, lest the wrong should ripen into a right by adverse possession, or the owner be forced into a ■multiplicity of actions to prevent such a result. Corning v. Nail Factory, 34 Barb. 486.

The judgment should be reversed, and a new trial had, with costs to the plaintiff to abide the event

All concur.


author: Bischoff. J.

text:
    John Murtha, Resp’t, v. Metropolitan Elevated Railway Company et al., App’lts.

      (New York Common Pleas, General Term,

      Filed November 4, 1895).

    Evidence—Elevated railroads.
    In an action to enjoin the operation of an elevated railroad on the streets on which plaintiff’s premises abut, the statement of persons applying to rent apartments, more particularly in premises other than those in suit, are not admissible as part of the-res gestae, but are hearsay.
    Appeal from a judgment in favor of plaintiff for injunctive relief, and damages for the loss of rental value.

      Julien T. Davies and Frederick Allis, for app’lt; Thomas E. Murtha, for resp’t.
   Bischoff. J.

For material error in the admission of incompetent evidence against the objection of the defendants’ counsel, the judgment must be reversed. Upon his direct examination, Water-low, called for the plaintiff as an expert touching fee and rental values, was asked: “Can you state more specifically what that difficulty has been in renting property on Sixth avenue since the erection of the elevated road, as compared with a period before its erection on Sixth avenue north of Forty-second street?” The question did not necessarily call for hearsay testimony, and the objection of the defendants’ counsel upon that ground 'was therefore properly overruled. The witness, however, answered: “ There would be the objection of parties who applied to rent apartments. When I tell them I have certain property on the line of Sixth avenue, mentioning different places, they would state—on an average, three, probably, out of every five, at least— that they would not live along that line with the nuisance of the road running there.” The record as printed reads: “There would be the objection to parties,” etc., but by oral stipulation of counsel in open court, upon the argument of the appeal, the record was corrected as above quoted.

The motion of the defendants’ counsel to strike the last-mentioned answer out as hearsay should have been granted. Mooney v. N. Y. E. Railroad Co., 30 St. Rep. 561; Saxton v. N. Y. E. Railroad Co., 44 St. Rep. 832. The statements of the persons applying to rent apartments, more particularly in premises other 'than those in suit, were not admissible as part of the res gestae. They were in no sense concomitant with any fact in issue, which latter the statements would serve to illustrate. 1 Greenl. Ev. § 108 et seq.; 1 Eice, Ev. p. 375, § 212 ; Underh. Ev. § 54 et seq. ; Waldele v. Railroad, 95 N. Y. 274 ; People v. O'Neill, 112 N. Y. 355, 361; 20 St. Rep. 754. The witness’ entire answer was affected with the vice alluded to. Hence, it cannot be successfully urged that the motion of the defendants’ counsel was properly denied, because it comprehended the elimination of matter which was not open to the objection stated. Again, the objectionable testimony bore upon a material point,—the agency of the.defendants’ elevated railroad in the lessening of the rental value of the plaintiff’s premises,—and from the record we are unable-to say that the testimony found no lodgment in the mind of the referee, and that it was not considered by him prejudicially to the defendants in reaching the conclusions made and required in support of the recovery.

Judgment reversed, and new trial ordered; costs to the appellants to abide the event.


text:
    Job E. Hedges, as Receiver, etc., Resp’t, v. Horace G. Polhemus et al., App’lts.

      (New York Common Pleas, General Term,

      Filed November 4, 1895.)

    1. Appeal—Exceptions.
    The decision, in an action tried by the court, is not re viewable unless exceptions are taken.
    2. Same.
    A note in the extract from the clerk’s minutes of the trial that the “ defendant’s attorney excepts ” to the court's direction of judgment for the plaintiff, is not equivalent to the exception required by the statute, and, in an action tried "by the court without a jury, no question of law is thereby raised, even though such an exception were in any case availing for the assignment of error.
    3. Same—Certificate.
    The facts are not before the appellant court in the absence from the case of a certificate that the evidence, as there embodied, is complete.
    4. Same—Certifying case.
    A case on appeal is fatally defective unless it is certified by the trial judge in accordance with section 997 of the Code.
    Appeal from, a judgment in favor of the plaintiff.

      James Parker, for app’lts; Gharles M. Earle, for resp't.
   Bischoff, J.

Unfortunately for the position assumed by the appellants, their appeals fails to bring before the general term any question, either of law or fact, touching the merits of the action. An inquiry as to whether the conclusion of the trial judge was correct as matter of law could have only been called for by an exception taken and filed as prescribed by the Code of Civil Procedure (sections 994, 1022, as amended 1894, and section 1346), which step the appellants omitted from their practice. The result is that the only questions of law presented for our determi-" nation are those raised by exceptions taken to rulings upon the trial. Mayor, etc., v. Erben, 24 How. Prac. 358. The note in the extract from the clerk’s minutes of the trial that “ defendants’ attorney excepts ” to the court’s direction of judgment for the plaintiff is not equivalent to the exception required by the statute and in an action tried by the court without a jury, at all events, no question of law is thereby raised (Code Civ. Proc. §§ 994-996), even if such an exception is taken in a case availing for the assignment- of error. See Greer v. Hazard, Hazard & Co., 39 St. Rep. 74; Dearing v. Pearson, 8 Misc. Rep. 269; 59 St. Rep. 201; Gundlin v. Hamburg-Am. Packet Co., 8 Misc. Rep. 291; 59 St. Rep. 208. Further, the facts are not before us because of the omission from the case of a certificate that the evidence, as there embodied is complete. Porter v. Smith, 107 N. Y. 531; 12 St. Rep. 479 ; Aldridge v. Aldridge, 120 N. Y. 614; 31 St. Rep. 348. There is a further defect, in that the case does not appear to be certified by the trial judge in accordance with section 997 of the Code. See Green v. Roworth, 4 Misc. Rep. 141; 53 St. Rep. 129.

The only exception urged by the appellants is that taken to the exclusion of certain evidence. The issue in the action was solely as to the validity of a chattel mortgage the suit being brought by a receiver appointed in supplementary proceedings in the interests of certain judgment creditors of the mortgagor to set aside the instrument. Upon cross-examination of one of these creditors he was asked by appellants’counsel, “Did you not subsequently take a chattel mortgage yourself for this indebtedness? ” and an exception was taken to the exclusion of the question for immateriality. x The claim in suit being based solely uppn the judgments obtained by the creditors, and the defendants’ position being rested exclusively upon the validity of the mortgage before the court,- as was admitted by counsel, the evidence was certainly immaterial when offered. Upon this appeal it is urged that bad faith on the part of the creditors in taking a mortgage similar to that in suit could have been shown, but, be this as it may, there was no error in the rejection of the evidence called for by the question as framed, regard being had to the attitude of counsel upon the trial.

The judgmpnt should be affirmed, with costs.

All concur.


author: Fitzsimons, J.

text:
    William Gaskell et al., Resp’ts, v. Stuart W. Cowan, App’lt.

      (New York City Court, General Term,

      Filed October 29, 1895.)

    Trial—Proceedings in absence of defendants.
    The question whether or not the trial justice is right in ordering the trial to proceed during the defendant’s absence, is addressed to his discretion, and, unless it appears that he acts arbitrarily, the court will not be justified in reversing the judgment therefor.
    Appeal from a judgment in favor of plaintiffs.

      W. B- Beach, for app’lt; Estes, Bernard & Tiffany, for-resp’ts.
   Fitzsimons, J.

We find no error in the admission or exclusion of evidence. The question whether or not the trial justice was right in ordering the trial to proceed during the defendant’s absence was addressed to his discretion, and, unless it appears that he acted arbitrarily, we would not be justified in reversing the judgment. We must assume that the. motion to adjourn was argued for and against by the attorneys herein, as is usually the case, and that, in view of the affidavit submitted by the defendant that plaintiffs’ counsel was permitted to submit in the form of affidavits his oral arguments made at the time defendant’s counsel moved the adjournment, which was done in the light of these affidavits, we cannot say that the action of the trial justice in ordering the trial was even ill advised; in fact, they justify his-course of conduct.

We therefore affirm the judgment, with costs.


text:
    Elwood S. Hand, App’lt, v. Charles P. Rogers et al., Resp’ts.

      (New York City Court, General Term,

      Filed October 29, 1895.)

    Contracts—Joint obligation.
    The complaint in an action on a contract made by a firm, will be dismissed where it appears that the defendants are a firm which was not in existence when the contract was made, though composed in part of the same members as the other firm.
    Appeal from a judgment dismissing the complaint.

      J. H. Hull, for app’lt; Charles DeH. Brower, for resp’ts.
   Fitzsimons, J.

The plaintiff failed to show that the defendants were copartners; not only that, but he affirmatively shows-that the defendants’ firm was not the firm who signed the instrument or agreement upon which this action is based. It is a fact that defendants’ firm was not in existence 'at the time it was signed. Therefore, it is clear that no cause of action was established against the defendants. The plaintiff was' not entitled to a judgment against Charles P. Eogers individually. The agreement in question was not one upon which he might be sued alone. It was nob his individual agreement, but the agreement of his firmas it then existed; and no action could be maintained against Eogers individually upon such agreement, and could only be brought against him. and his (then) copartners. This being, in our judgment, the law, it follows that in this action ho judgment could be entered against him; and therefore, as against him, the complaint was rightfully dismissed.

The judgment is affirmed, with costs.


author: Van Wyok, C. J.

text:
    Robert H. Buchanan, Resp’t, v. Prospect Park Hotel Company.

      (New York City Court, General Term,

      Filed October 29, 1895.)

    Corporation—Service of process.
    The service oE a summons against a corporation, where it is made on a person who had been president of the corporation, but resigned his office before the service, is ineffectual. v
    Appeal from an order, denying a motion to vacate a judgment in favor of defendant, on the ground that the summons was not served on defendant.

      B. 0. Gonrady, for app’lt; Benno Loewy, for resp’t.
   Van Wyok, C. J.

The appeal is from an order denying motion to vacate judgment, on the ground that summons was not served upon defendant. The judgment was entered on October-23d, and the proof of service is that the summons and complaint, were served on the 16th on one Alexander, known to be the president of defendant. The plaintiff’s attorney was informed by one Doyle, attorney for Alexander, by letter and" orally, on the 22d, that Alexander had had no connection whatever with the defendant company for two months, when he had ceased to be an officer thereof by reason of his resignation as president; and plaintiff’s attorney now deposes that “he did not believe .in the bona ñdes of Alexander’s resignation when he saw Mr. Doyle, and does not believe in it now.” However, defendant’s proof on this motion is overwhelming and uncontradicted that Alexander had resigned as president in August, and that his successor was then elected, and that since then he had liad “no connection with, or right, title, or interest in, the defendant, directly or indirectly, either as a stockholder, officer, agent, clerk, or employe." The service on Alexander was not service on the defendant company, and the judgment should have been vacated.

Order reversed, with costs; and motion to vacate granted, with costs..


text:
    Carlisle Norwood, Resp’t, v. Geraldine H. Hickok, App’lt.

      (New York City Court, General Term,

      Filed October 29, 1895.)

    Contract—Services rendered—Proof.
    Where the evidence shows that the defendant received the plaintiff’s hill for services rendered and promised to pay the same when able, it is sufficient to establish plaintiff’s claim that the services were rendered, and the value thereof was satisfactory to defendant and, in case the defendant fails to introduce evidence in her own behalf, the trial judge is justified in directing a verdict against her.
    Appeal from a judgment in favor of plaintiff.

      Large & Stallknecht, for opp It: M. 8. Harden, for resp’t.
   Fitzsimons, J.

The evidence shows that the defendant received plaintiff’s bill for services rendered, and promised to pay the same when able. That, surely, established plaintiff’s claim that the services in question were rendered, and the value thereof was satisfactory to defendant, and, in view of the failure to introduce evidence in her own behalf, justified the trial judge in directing a verdict against her.

The judgment must be affirmed with costs.


text:
    James O. West, App’lt, v. Patrick O’Neill, Resp’t.

      (New York City Court, General Term,

      Filed October 29, 1895.)

    Pleading—Answer—Definite and certain.
    A motion to make the answer more definite and certain will be denied where it appears that the plaintiff had definite knowledge concerning the matter referred to in the answer.
    Appeal from an order, denying a motion to make the answer more definite and certain.

      Lachman, Horgenthan & Goldsmith, for appl’t; D. H. Newberger, for resp’t.
   Fitzsimons, J.

This is an action for rent. The answer alleges that, for a valuable consideration, the defendant surrendered, and the plaintiff accepted, the demised premises, prior to the time the rent sued for accrued. The plaintiff moved that the answer be made more definite and certain, by specifying the valuable consideration referred to by the defendant in his answer, and the date of the surrender, or that a bill of particulars setting forth such information be served. This motion was denied. We think that the motion was' properly denied in this instance, because the plaintiff positively swears that he never accepted a surrender of the demised premises. Therefore it appears from his own affidavit that he had definite information and knowledge concerning said allegation in defendant’s answer, and therefore" it was unnecessary to have the answer more definite by alleging the date or consideration of such alleged surrender. Under such circumstances, the information desired would perhaps be satisfactory, but was not necessary for plaintiff to know, in view o£ his said affidavit

The order is affirmed, with costs.


author: Fitzsmons,- J.

text:
    Bernard J. Ludwig, et al., Resp’ts, v. Rolland E. Gove, App’lt.

      (New York City Court, General Term,

      Filed October 29, 1895.)

    Appeal—Order sustaining demurrer.
    An order, sustaining a demurrer with leave to amend, is not appealable.
    Appeal from an order, sustaining a demurrer to the answer with leave to amend. 4

      Fellowes & Wright, for app’lt; Wager & AcTcer, for resp’t.
   Fitzsmons,- J.

The plaintiffs demurred to the defendant’s answer. The demurrer was sustained, with leave to the defendant to amend his answer. An order to that effect was entered. From such order this appeal is taken. The appeal must be dismissed, because from the order entered herein no appeal lies. Denslow v. Bush, 9 Misc. Rep. 337; 60 St. Rep. 608.

Appeal dismissed, with costs.


text:
    Sarah Lynch, Resp’t, v. George W. Lauer, App’lt.

      (New York City Court, General Term,

      Filed October 29, 1895.)

    1. Evidence—Parol.
    All prior agreements between the parties to a lease, concerning improve ments to be made upon the demised premises, are emerged in the lease and not admissible in an action for rent. .
    3. Landlord and tenant—Duress.
    A mere threat to evict is not duress within the contemplation of the law.
    3. Same—Waiver.
    Where the lessee remains in possession of the premises and pays rent to the lessor for three years after the alleged fraud and duress were perpetrated, it is too late for him to take advantage of such alleged wrongs.
    4, Same—Rents.
    The service of papers on the lessee in dispossessory proceedings by a person other than the lessor, claiming title to the premises, does not relieve the lessee from liability for rent.
    Appeal from a judgment in favor of plaintiff.

      Metzgar & Tabor, for app’lt; Anderson, Howland & Murray, for resp’t.
   Fitzsimons, J.

All agreements made between the parties hereto concerning improvements to be made upon the demised premises were merged in the lease as signed. Wilson v. Deen, 74 N. Y. 531. Therefore the proposed testimony tending to show such agreement was properly excluded by the trial judge. A mere-threat to evict is not duress, within the.contemplation of the law, and the objection to the question at folio 76 was properly sustained. Besides, it appears that the defendant remained in possession of the premises, and paid rent therefor to plaintiff, for three years after the alleged fraud and duress were perpetrated. In our judgment, it was then too late for the defendant to take advantage of such alleged wrongs. It was not the duty of the landlord to-keep the premises in repair, particularly in this instance, because the lease expressly imposed upon the tenant that obligation. The fact that the defendant was served with papers in a dispossessory proceeding by some person claiming title to the premises in question did not relieve him from payment of rent, for it in no way established that a superior title was in some person other than plaintiff, nor did it authorize defendant to question the title of his. landlord. As to the alleged surrender and acceptance of the lease, that question was fairly submitted, on sufficient testimony, to the jury, and decided against the defendant. Finding no error, the-judgment must be affirmed, with costs.