text:
    Morris Frohmann, Resp’t, v. Manhattan Ry. Co. et al., App’lts.
    Sup. Ct., 1 D.,
    April 11, 1895.

      F. Allis, for app’lts; E. M. Felt, for resp’t.
   Per Curiam.

This action was brought to recover compensation for the fee

value of the easements of light, air, and access pertaining to premises No. 725 Third avenue, and for past damages. The plaintiff’s property consists of a house and lot on the east side of Third avenue at Forty-fifth street. The lot is nineteen feet ten inches in front by forty-five feet in depth. The house is an old-fashioned five-story brick building erected in 1866 or 1867, with a store on the ground floor and suite of apartments on each of the upper floors. The plaintiff purchased the premises in April, 1889. The court awarded $1,500 as compensation for the fee damage, and $500 for rental damages from April, 1889, to June 30,1893. It is apparent upon an investigation of the evidence in this case that these awards were excessive. The valuation placed upon the premises in question by the expert upon the part of the plaintiffs does not at all coincide with the proofs offered as to the rentals received and the ratio sworn to by this witness between rental and fee value. The premises have undoubtedly to some extent been damnified by the presence of the elevated railroad, both in rental and fee value. We think that the fee damages should have been awarded at the sum of $900 and the rental damages at $300, and that the judgment should be reduced to those figures, and the extra allowance proportionately reduced; and, as modified, the judgment should be affirmed, without costs,


source: Caselaw Access Project

license: Public Domain

text:
    Max Gabriel et al. v. William H. Arnott et al.

    Sup. Ct., 1 D.,
    April 11, 1895.
   No opinion. Judgment affirmed on opinion of Parker, J., in Asphalt Co, v. Arnott, 65 St. Rep. —.


text:
    William H. Gardenier, App’lt, v. Amos Allport, Resp’t.
    Sup. Ct,, 4 D.,
    November, 1894.
   No opinion. Motion denied.


author: Per Curiam.

text:
    German-American Inv. Co., App’lt, v. W. J. Hayes et al., Resp’ts.
    Sup. Ct., 1 D.,
    May 17, 1895.

      E. P. Wheeler, for app'lt; W. H. Harris, for resp’ts.
   Per Curiam.

The decision of the special term was authorized by the case of Lumber Co. v. Bussell, 31 Supp. 1107. The order should be affirmed, with $10 costs and disbursements.


text:
    Maria Giehl, App’lt, v. Edward Evans et al., Resp’ts.
    Sup. Ct., 4 D.,
    November, 1894.
   No opinion. Judgment reversed, and a new trial ordered, with costs to abide the event.


text:
    Jambs Gilchrist, Resp’t, v. Wallace W. Collins, App’lt.
    Sup. Ct., 4 D.,
    November, 1894.
   No opinion. Judgment and order reversed on the law and facts, and a new trial ordered, with costs to abide the event.


text:
    Sarah Gleeson, App’lt, v. John Brummer, Resp’t.
    Sup. Ct., 1 D.,
    April 11, 1895.
   No opinion. Reargument ordered.


text:
    George Goetting, Resp’t, v. Manhattan Ry. Co. et al., App'lts.
    Sup. Ct., 1 D.,
    April 11, 1895.

      S. Babcock, for app’lts; E. M. Felt, for resp’t.
   Per Curiam.

The only question which it is necessary to consider is that in regard to the amount of the award. The other points which have been raised upon this appeal have been disposed of in previous cases, and it is not necessary now to rediscuss them. We think, upon an examination of the testimony, that the award is larger than the evidence warranted. It seems to us that the same should be reduced to the sum of $1,500 fee damage, and $931.50 rental damage, and for these amounts the judgment should be affirmed, without costs.


text:
    John Hahnenfield, App’lt, v. David Jacobson, Resp’t.
    Sup. Ct., 1 D.,
    April 11, 1895.
   No opinion. Appeal dismissed, with $10 costs.


text:
    Mart Haight, App’lt, v. Henry Finch, Resp’t.
    Sup. Ct., 4 D.,
    November, 1894.
   No opinion. Judgment affirmed, with costs.


author: Van Wyck, J.

text:
    Elwood S. Hand, App’lt, v. William A. Shaw, Resp’t.
    N. Y. C. C.,
    April 9, 1895.

      Charles DeHart Brower, for app’lt; D. J. Newland, for resp’t.
   Van Wyck, J.

The order appealed from is affirmed, with $10 costs.


text:
    Henry J. Harris, App’lt, v. James P. Senior, Resp’t.
    N. Y. C. P.,
    March, 1895.
   No opinion. Motion for reargument denied.


text:
    Jane Heath, Resp’t, v. Glens Falls, S. H. & Ft. B. St. R. Co., App’lt.
    Sup. Ct., 3 D.,
    May 14, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    James Hedges, App’lt, v. William H. Payne, Resp’t.
    Sup. Ct., 1 D.,
    May 17, 1895.
   No opinion. Motion denied, with $10 costs.


text:
    Loyd Hess, Resp’t, v. D. J. Van Auken, App'lt.
    N. Y. C. P.,
    March, 1895.
   No opinion. Motion for leave to appeal to the court of appeals denied, with $10 costs.


text:
    Helen M. Hoyle, Resp’t, v. Isaac Conyea et al., App’lts.
    Sup. Ct., 3 D.,
    May 14, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    Fritz Jagau, Resp’t, v. Fredericka Goetz, App’lt.
    N. Y. C. P.,
    March, 1895.
   No opinion. Motion for reargumeut, or for leave to appeal to the court of appeals, denied, with $10 costs.


text:
    Robert A. Johnson, App’lt, v. Joseph Meany, Resp’t.
    Sup. Ct., 3 D.,
    May 29, 1895.
   No opinion. Order denying motion to open default affirmed. Order granting extra allowance reversed, without costs.


text:
    William C. Keating, Resp’t, v. George Fitts, App’lt.
    Sup. Ct., 4D.,
    November, 1894.
   No opinion. Order reversed, without costs of the appeal to either party, and the place of trial changed from Oneida county to the county of Cortland, with $10 costs to abide the event.


text:
    Jeremiah B. Keech, App’lt, v. Gilbert G. Ottman et al., Resp’ts.
    Sup. Ct., 3 D.,
    May 29, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    Matilda Kitz, Resp’t, v. Christian Cook, App’lt.
    Sup. Ct., 4D.,
    November, 1894.
   No opinion. Judgment reversed on the law and facts, and a new trial ordered, with costs to abide the event, and the preliminary injunction order set aside. Held, (1) a case for equitable relief was not made out; (2) the award of damages was not sustained by the evidence.


text:
    Theodore Knox, Resp’t, v. Warner Johnson, App’lt.
    Sup. Ct., 4 D.,
    November, 1894.
   Per Curiam.

We are of the opinion that the court erred in receiving evidence that the credit was given to defendant. A majority of the court are of the opinion that the court erred in charging that a recovery could be had upon the letter and the standard mortgage clause, and that they amount to a contract between the parties, so that the plaintiff was entitled to recover the premium on demand. Judgment and order reversed, and new trial ordered, with costs to abide the event.


text:
    John Langan, Resp’t, v. Michael Clifford, App’lt.
    Sup. Ct., 3 D.,
    May 29, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    Matter of Henry C. Latham’s Estate.
    Sup. Ct., 3 D.,

    May 29, 1895.
   No opinion. Motion to correct decision so that it shall award costs to the appellant at the rates allowed upon an appeal from a judgment granted.


text:
    Nicholas La Pointe, Resp’t, v. George Rickert, App’lt.
    Sup Ct., 3 D.,
    May 14, 1895.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    L’Artiste Pub. Co., App’lt, v. Isaac Walker, Resp’t.
    N. Y. C. P.,
    March, 1895.
   No opinion. Motion for leave to appeal to the court of appeals denied, with $10 costs.


text:
    Charles Leicht, Resp’t, v. Manhattan Ry. Co., App’lt.
    N. Y. Supr. Ct.,
    May 6, 1895.

      Julien T. Hemes and Ezra A. Tuttle, for app’lt; W. W. Badger, for resp’t.
   Per Curiam.

Judgment affirmed, with costs.


text:
    Charles L. Levey, Resp’t, v. Kiernan News Agency, App’lt.
    Sup. Ct., 1 D.,
    May 17, 1895.

      Oliver B. Goldsmith, for app’lt; Dudley R. Horton, for resp’t.
   Per Curiam.

Our examination of the record satisfies us that the appellant is wrong in its contention that a case is presented which makes it the duty of this court to set aside the judgment on the ground that it is against the weight of evidence. The other exceptions to which it calls our attention are not well taken, and do not merit discussion. The judgment should be affirmed, with costs.


text:
    Addison Loucks et al., App’lts, v. Lewis C. Johnson et al., Resp’t.
    Sup. Ct., 3 D.,
    May 14, 1895.
   No opinion. Judgment affirmed, with costs and disbursements.


text:
    Jennie H. Lyon, Resp’t, v. Edward H. Raymond, App’lt.
    N. Y. C. P.,
    March, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    Frank McClanathan et al., Resp’ts, v. William Friedel, App’lt.
    Sup. Ct., 4 D.,
    April, 1895.
   No opinion. Motion for leave to appeal to the court of appeals denied.


text:
    McKean, App’lt, v. Adams, Resp’t.
    N. Y. C. P.,
    March, 1895.
   No opinion. Motion for reargument or for leave to appeal to the court of appeals denied, with $10 costs.


text:
    John McQueen, Resp’t, v. Tobias New, App’lt.
    Sup. Ct., 1 D.,
    April 11, 1895.
   No opinion. Judgment affirmed, with leave to defendant to answer over on payment of costs.


text:
    Manhattan Ry. Co., App’lt, v. August Klipstein et al., Resp’ts.
    Sup. Ct., 1 D.,
    April 11, 1895.
   No opinion. Order reversed with costs, unless stipulation in respect to reduce award in respect to No. 122 Pearl street to $7,250, and in respect to Nos. 129, 131, 133 and 135 Pearl street to $42,500.


text:
    Emil A. Mayer, Resp’t, v. Union Ry. Co., App’lt.
    N. Y. C. P.,
    March, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    Frederick Mead, Resp’t, v. New York El. R. Co., et al., App’lts.
    N. Y. Supr. Ct.,
    May 6, 1895.

      Davis & Sapallo (Julien T. Davies, Brainard Tolles and J. C. Bushby, of counsel), for app’lts; Exarts, Choate & Beaman (Joseph H. Choate, W. V. Rowe and T. T. Sherman, of counsel), for resp’t.
   Per Curiam.

The awards herein are supported by a fair preponderance of evidence. The learned trial judge seems to have followed correct principles of law in the trial and determination of the issues raised. We have examined the case with care, and find no substantial reason for disturbing the decision of the court below. The judgment appealed from is affirmed, with costs.


text:
    James A. Merritt, Resp’t, v. John A. Fowler, App’lt.
    Sup. Ct., 1 D.,
    April 11, 1895.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    James S. Miller, Resp’t., v. Manhattan Ry. Co. et al., App’lts.
    Sup. Ct., 1 D.,
    May 17, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    Vernon Miller, Resp’t, v. New York Cent. & H. R. R. R. Co., App’lt.
    Sup. Ct., 4 D.,
    November, 1894.
   No opinion. Judgment and order affirmed, with costs.


text:
    Barnett W. Morse, Resp’t, v. Hiram B. Locke, App’lt.
    Sup. Ct., 4 D.,
    November, 1894.
   No opinion. Judgment and order affirmed, with costs.


text:
    Matter of Moss’ Estate.
    Sup. Ct., 1 D.,
    April 11, 1895.
   No opinion. We think motion should be made at special term. It is there that application for judgment on special verdicts should be made. Motion •dismissed.


text:
    Edward Moynehan et al., App’lts, v. President, Etc., of Delaware & Hudson Canal Co., Resp’ts.
    Sup. Ct., 3 D.,
    May 14, 1895.
   No opinion. Judgment affirmed, with costs.


author: Dykman, J.

text:
    Mulrein v. Miller.
    Sup. Ct., 2 D.,
    May 13, 1895.

      Esselystyn & McCarthy, for pl’ff; Frederick Barnard, for def’t.
   Dykman, J.

This is an action for labor and materials furnished by the plaintiff to the defendant upon a dwelling house of the latter under a special ■contract with him. There is also in the complaint a claim for damages resulting from the wrongful discharge of the plaintiff by the defendant. The cause was tried before a referee to hear and determine, and he decided as a conclusion of law that the plaintiff was entitled to recover from the defendant $3,573.93 besides the costs of the action. The referee found facts in detail which support the decision, and all the findings are fully sustained by the evidence. The defendant has appealed from the judgment entered upon the report of the referee, but the appeal is destitute of merit. There has been no violation of any principle of law, and an extended examination of the facts is •unnecessary. The judgment should be affirmed, with costs.


text:
    Joseph Murray et al.. Resp’ts, v. Ira W. Ketchum, App’lt.
    Sup Ct., 3 D.,
    May 24, 1895.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Walter Myers, Resp’t, v. Robert J. Dean, App’lt.
    N. Y. C. P.,
    March, 1895.
   No opinion. Motion for reargument denied, with $10 costs.


text:
    Tudor A. Myers v. Harvey Phillips.
    Sup. Ct., 1 D.,
    May 17, 1895.
   No opinion. Motion must be made to declare case abandoned.


author: Cullen, J.

text:
    Joseph H. Newins et al., App'lts, v. H. Eckford Rose, Resp’t.
    Sup. Ct., 2 D.,
    May 13, 1895.

      George F. Stackpole, for app’ts; Arington H. Carman, for resp’t.
   Cullen, J.

I vote to affirm, without opinion. The testimony of Seaman that he did not sell the goods to defendant was erroneously admitted against •defendant’s objection and exceptions, and was a mere statement of conclusion. He did not state wliat the transaction was, nor deny defendant’s statement, that nothing was said between them reserving the goods plaintiffs had sold Seaman.


author: McCarthy, J.

text:
    Abraham Newkirk, Resp’t, v. Walter H. Hooker, et al., App’lts.
    N. Y. C. C.,
    April 16, 1895.

      Johnson & Dowd, for app’ts; Abraham Kling, for resp’t.
   McCarthy, J.

The defendant, by moving on the original papers to vacate the attachment, concedes all that is stated in the affidavits and their legal intendment. Section 636, Code Civ. Proc., does not apply to this court (see § 3160, Code Civ. Proc.), but section 3169 does. We think the affidavits, although not as full as they might be, are sufficient to sustain the attachment. Order is therefore affirmed, with costs. All concur.


text:
    New York Board of Fire Underwriters, Resp’t, v. Metropolitan Lloyds of New York et al., App’lts.
    Sup. Ct., 1 D.,
    May 17, 1895.
   No opinion. Judgment affirmed, with costs, with leave to defendants td withdraw demurrer, and answer over on payment of costs in this court and in. the court below.


text:
    Charles E. Orvis, Resp’t, v. William H. Curtiss, App’lt.
    N. Y. C. P.,
    March, 1895.
   No opinion. Judgment reversed, new trial ordered, with costs of appeal to abide event.


text:
    Earl D. Ostrom, App’lt, v. Fred D. Squires, Resp’t.
    Sup. Ct., 4 D.,
    November, 1894.
   No opinion. Judgment of the county court affirmed, with costs.


text:
    Matter of Owens’ Estate.
    N. Y. C. P.,
    March, 1895.
   No opinion. Motion to dismiss appeal granted.


text:
    The People, Pl’ff, v. Louis Fischer et al., Def’ts.
    N. Y. C. P.,
    March, 1895.
   No opinion. Motion to vacate judgment entered upon a forfeited recognizance granted.


text:
    The People, Pl’ff, v. Arebez Frabincino et al., Def’ts.
    N. Y. C. P.,
    March, 1895.
   No opinion. Motion to vacate judgment entered upon a forfeited recognizance granted.


text:
    The People, Resp’t, v. Emily C. Kaufman Hall, App’lt.
    Sup. Ct., 4 D.,
    November, 1894,
   No opinion. Conviction, judgment and order of the court of sessions of Onondaga county, affirmed, and, after the judgment is entered in the judgment book, a certified eopy_ of the entry shall be forthwith remitted to the clerk of Onondaga county, with whom the original judgment roll was filed, in accordance with section 547 of the Code of Criminal Procedure.


text:
    The People, Pl’ff, v. George S. Moore, et al., Def’ts.
    N. Y. C. P.,
    March, 1895.
   No opinion. Motion to vacate judgment entered upon a forfeited recognizance granted. >


text:
    The People ex rel. William P. Douglas v. David L. Van Nostrand, Supervisor.
    Sup. Ct., 2 D.,
    May 13, 1895.

      Howard A. Sperry, for app’lt; Arthur Van De Water, for resp’t.
   Dykman, J.

This is an appeal from the final order in proceedings to review the action of the assessors of the town of Flushing, in Queens county, under the statute of 1880. We had a similar proceeding by the same relator against the same defendant in relation to this same property before us at the July term in 1893. 71 Hun, 611. The property was then assessed for $60,000, the same as now, and the proof of value, both actual and relative, was substantially the same as now. Such being the case, we are bound by our former decision, and the order should be affirmed, with costs. Brown, P. J., not sitting.


text:
    The People ex rel. Dwight, App’lts, v. Platt et al., Assessors, etc., Resp’ts.
    Sup. Ct., 4 D.,
    November, 1894.
   No opinion. Order affirmed, with $10 costs and disbursements. As to costs see 66 Hun, 578; 138 N.Y. 655.


text:
    The People ex rel. Isaac Leroy, App’lts, v. James H. Foley, Resp’t.
    Sup. Ct., 3 D.,
    May 29, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    The People ex rel. Manhattan Ry. Co., Resp’ts, v. Edward P. Barker et al. Commissioners of Taxes, etc., App’lts.
    Sup. Ct., 1 D.,
    April 11, 1895.

      David J. Dean, for app’lts; Julien T. Davies, for resp’t.
   Per Curiam.

Upon an examination of the facts disclosed by the record upon appeal herein, we are unable to perceive any substantial difference between the case at bar and that of People v. Barker, 144 N. Y. 94. With_ a change of figures, the opinion seems entirely applicable to the facts and circumstances presented by the record before us. Following the conclusion reached in that case by the court of appeals, it would seem that the tax commissioners had a right to levy the assessment which they did, and the order vacating the same was erroneous. The order appealed from should be reversed, with costs and disbursements.


text:
    The People ex rel. Lysander T. Mills v. William J. Pentalow, County Clerk.
    Sup. Ct., 4 D.,
    November, 1894.
   No opinion. Application dismissed, with $10 costs. See section 2068, Code Civ. Proc.


text:
    The People ex rel. Harry P. Pike v. Edward P. Barker et al.

    Sup. Ct., 1 D.,
    April 11, 1895.
   No opinion. Order affirmed, with costs, on opinion of special term.


text:
    The People ex rel. Garret Sarvent, Resp’t, v. George C. Stephens,, et al., Assessors, App’lts.
    Sup. Ct., 2 D.,
    May 13, 1895.

      A. S. Tompkins, for app’lts; A. A. Demarest, for resp’t.
   Cullen, J.

I vote to affirm, without opinion. People v. Haupt, 104 N. Y. 377, is decisive of the question involved in this appeal.


text:
    Jennie M. Perry, App’lt, v. John P. Hughes, Resp’t.
    Sup. Ct., 4 D.,
    November, 1894.
   No opinion. Order reversed, with $10 costs and disbursements, and motion, denied, with $10 costs. See Sweet v. Norris, 45 Hun, 595; 12 Civ. Proc. R. 175; affirmed, 110 N. Y. 668.


text:
    John P. Pils, Resp’t, v. Manhattan Ry. Co. et al., App’lts.
    Sup. Ct., 1 D.,
    April 11, 1895.

      Henry J. Hemmens, for app’lts; Leo O. Dessarr', for resp’t.
   Per Curiam.

We think the judgment is in all respects right except upon-the question of the award made, which, upon the evidence, we think was too high, and that it should be accordingly reduced, and the rental damages fixed at $900, and the fee damages at $1,200; and, as so reduced, the judgment, should be affirmed, without costs.


text:
    Ernest Plath, Resp’t, v. Manhattan Ry. Co. et al., App’lts.
    Sup. Ct., 1 D.,
    April 11, 1895.

      James G. Bushby, for app’lts; Edwin M. Felt, for resp’t.
   Per Curiam.

This is the usual action in equity to enjoin the use by defendants of plaintiff’s easements of light, air, and access, and for the recovery of past damages caused thereby. The premises in suit are known as “No. 283; Bowery,” and are located on the eastern side of that street, twenty-three feet north of the corner of Houston street. The lot is twenty-six feet ten inches in width front and rear, and seventy-five feet in depth. Upon it is a brick building sixty feet deep, with five stories and basement, having a store on the first floor, and four floors over the store. The basement is used as a barber shop, the store as a wholesale and retail cigar store, and the four upper floors as a lodging house. This building was placed there by the plaintiff and his brother in 1883, at a cost of $25,000, which, together with the sum of $34,000 paid for the lot, would make the cost of the premises in 1883. $59,000. There was testimony given showing the rental history of the building and the fee values of the property, and, after weighing all the considerations in favor of and against an award, the judge at special term fixed the rental damage at the rate of $200' per year for a little over four years, and the lessened value of the premises at $3,500. We think that there was testimony to support the awards thus made,. and, there being no other questions than such as have been frequently disposed of, it remains but to affirm the judgment, with costs.


text:
    Pollock v. Penn Iron-Works Co.
    N. Y. C. C.,
    April 9, 1895.
   Van Wyck, J.

Judgment affirmed, with costs.


author: Ward, J.

text:
    Pryor, Resp’t, v. Chadwick, App’lt.
    Sup. Ct., 5 D.,
    April 12, 1895.

      Simpson, Harrington & Holman, for app’lt; Hickman & Holman, for resp’t.
   Ward, J.

Appeal from a judgment obtained upon a verdict in favor of the plaintiff for personal injuries and from an order denying a motion for a new trial. _ The verdict for the respondent was $1,500 for injuries caused by the plaintiff’s assault, producing a miscarriage, and serious personal injury and ¡suffering. There was no exception taken in the course of the trial, nor any to the judge’s charge, or any requests to elnuge. The appellant now complains of certain portions of the charge, and that the verdict is excessive. Neither contention is sustained. There was proof justifying the jury in finding the verdict, and it cannot be interfered with here. The judge’s charge was unobjectionable. The judgment and order denying a new trial should be affirmed, with costs.


author: Sedgwick, J.

text:
    Purdy, App’lt, v. Marion & R. V. R. Co. et al., Resp’ts.
    N. Y. Supr. Ct.,
    May 6, 1895.

      John M. Perry, for app’lt; Edwin B. Smith, for resp’t.
   Sedgwick, J.

The learned court below found that this court had no jurisdiction of the action. He found that the plaintiff was a non-resident of this state at the time of the beginning of the action; that the defendant was a foreign corporation, and that the cause of action did not accrue in this state. The action was begun January 28, 1893. The plaintiff testified that he looked around in Brooklyn, .in this state, from January 20 to January 30, 1893, for a house, and in January, 1993, concluded to make Rutherford, in the state of New Jersey, his home. He was living in Rutherford when he was looking for a house in Brooklyn. In November, 1892, he lived in Brooklyn, and then went to Rutherford. At that time he did not expect to settle but for a few months. The court below had the duty of considering the testimony of the plaintiff as that of an interested witness. The judge looked at the inferences that were to be drawn from the particular things testified to and the omission to testify'to other particulars; and also if there were anything withheld, and wliat it was, with the motive and manner of testifying. The finding that he was not a resilient of this state must be sustained. The testimony also supported the findings as to the other two prerequisites of jurisdiction. Judgment affirmed, with costs.


text:
    Roberts et al. v. New York & N. E. R. Co. et al.

    Sup. Ct., 2 D.,
    December, 1894.
   No opinion. Reargument ordered.


text:
    Jacob S. Rogers, Resp’t, v. New York & T. Land Co., App’lt.
    Sup. Ct., 1 D.,
    April 11, 1895.
   No opinion. Order affirmed, with leave to apply for stay of entry of final .judgment on coming in of referee’s report.


text:
    Benjamin F. Romaine et al., Resp’ts, v. Thomas T. Brewster, App’lt.
    N. Y. C. C.,
    April 9, 1895.

      H. W. Schmitz, for app’lt; Davison & Chapman, for resp’ts.
   Per Curiam.

The judgment appealed from is affirmed, with costs, on the opinion of the common pleas, general term, filed November 5, 1894.


text:
    William M. Ross, Resp’t, v. Seckel Bronner, App’lt.
    Sup. Ct., 4 D.,
    November, 1894.
   No opinion. Judgment and order affirmed, with costs.


text:
    John Ruddiman v. Reuben R. Barrett.
    Sup. Ct., 2 D.,
    May 13, 1895.
   No opinion. Judgment and order affirmed, with costs. Dykman, J., not sitting.


text:
    James Rutherford, App’lt, v. Leopold Krause, Resp’t.
    Sup. Ct., 4 D.,
    November, 1894.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Thomas S. Safford, App’lt, v. Frank D. Safford, Resp’t.
    Sup. Ct., 3 D.,
    May 29, 1895.
   No opinion. Order affirmed, with costs and disbursements.


text:
    James Saxton, Resp’t, v. Manhattan Ry. Co. et al. App’lts.
    Sup. Ct., 1 D.,
    May 17, 1895.
   No opinion. Judgment modified by reducing fee damage to $1,500, and rental damage to $100 per year, and affirmed as modified, without costs.


text:
    Christopher C. Schoonover, Resp’t, v. President, etc., of Delaware & H. Canal Co., App’lts.
    Sup. Ct., 4 D.,
    November, 1894.
   No opinion. Judgment and order affirmed, with costs.


text:
    Julius Scriver, Resp’t, v. Dore E. Fairbrother et al., App’lts.
    Sup. Ct., 3 D.,
    May 14, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    Matter of Seaman.
    Sup. Ct., 1 D.,
    May 17, 1895.
   No opinion. Order affirmed, on opinion of O’Brien, J., in Talmadge v. Seaman.


text:
    John H. Seebeck et al., App’lts, v. Charles C. Johnson, Resp’t.
    Sup. Ct., 1 D.,
    April 11, 1895.
   No opinion. Order modified by simply allowing service of affidavit of merits on payment of $10 costs and costs of this appeal. The question of amendment of answer to be left to special term upon application for that purpose.


text:
    George Sink et al., Resp’ts. v. Eugene Long, App’lt.
    Sup. Ct., 4 D.,
    November, 1894.
   No opinion. Order affirmed, with $10 costs and disbursements.


author: Freedman, J.

text:
    John H. Smallwood et al., App’lts, v. Herman H. Schwietering et al., Resp’ts.
    N. Y, Supr. Ct.,
    May 6, 1895.

      Preston Stevenson, for app’lts; Larned, Warren & Knapp, for resp’ts.
   Freedman, J.

Upon the facts as they appeared upon the trial of the issues the plaintiff’s complaint was properly dismissed upon the grounds set forth by the learned trial judge, in the decision filed by him. Even if all others were open to some criticism, the last ground assigned, namely, that the contract upon which the plaintiffs rest their claim had been terminated before the trial, is quite conclusive. One who invokes equitable relief, and demands a prevent, ive remedy, becomes subject to the practice of courts of equity, where such relief only is administered as the nature of the case and the facts as they exist at the close of the litigation demand. Peck v. Goodberlett, 109 N. Y. 181. The record discloses no exception which calls for reversal. The complaint having been properly dismissed, no error was committed in denying plaintiff’s motion for injunctive relief or the appointment of a receiver during their appeal. The judgment and order appealed from should be severally affirmed, with costs. On the appeal from the order, $10 costs and disbursements may be taxed.


text:
    John A. Smith, Resp’t, v. Central Vermont R. Co., App’lt.
    Sup. Ct., 3 D.,
    May 29, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    David F. Smith, Resp’t, v. Alvin B. Champlin, App’lt.
    Sup. Ct., 4 D.,
    November, 1894.
   No opinion. Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs.


text:
    Societe Anonyme De Merbles Le Chateau, Resp’t, v. Davidson Sons Marble Co., App’lt.
    N. Y. Supr. Ct.,
    May 6, 1895.

      Edward O. O’Brien, for app’lt; Omar Powell, for resp’t.
   Per Curiam.

Order affirmed, with $10 costs and disbursements to be taxed.


text:
    Matter of Southern Boulevard Ry. Co.
    Sup. Ct., 1 D.,
    May 17, 1895.
   No opinion. Order affirmed, with costs, on opinion of Van Brunt, P. J., 58 Hun, 597.


text:
    Standard Fertilizer Co., App’lt, v. Edward D. Cheney, Resp’t.
    Sup. Ct., 3 D.,
    May 14, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    William Styne v. New York, L. E. & W. Ry. Co.
    Sup. Ct., 2 D ,
    May 13, 1895.
   No opinion. Judgment affirmed, with costs. Cullen, J., not sitting.


text:
    James Talcott, Resp’t, v. National Credit Ins. Co., App’lt. (Two cases.)
    Sup. Ct., 1 D.,
    April 11, 1895.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Emil Thiele, App’lt, v. William G. Pierson et al., Resp’ts.
    Sup. Ct., 1 D.,
    April 11, 1895.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Town of Andes, App’lt, v. John A. Gleason et al., Resp’ts.
    Sup. Ct., 4 D.,
    November, 1894.
   No opinion. Judgment affirmed, with one bill of costs to respondents, and printing disbursements to all respondents.


text:
    Union Ins. Co., of Philadelhia et al., v. Central Trust Co. of New York et al., App’lt.
    Sup. Ct., 1 D.,
    May 17, 1895.

      William Allen Butler, for app’lts; Treadwell Cleveland, for resp’ts.
   Per Curiam.

Judgment affirmed, with costs, on the opinion of the special term.


text:
    Irvin Van Wie, Resp’t, v. Stephen A. Emmons et al., App’lts.
    Sup. Ct., 4 D.,
    November, 1894.
   No opinion. Judgment affirmed, with costs.


text:
    Charles H. Wade, Resp’t, v. Solomon Goldsmith, App’lt.
    Sup. Ct., 1 D.,
    April 11, 1895.
   No opinion. Order reversed, and motion granted, with costs.


text:
    Thomas P. Wallace, App’lt, v. Herman Kaempf, Resp’t.
    N. Y. C. P,,
    March, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    Hiram L. Washburn, Resp’t, v. Andrew Dettinger, App’lt.
    Sup. Ct., 3 D.,
    May 24, 1895.
   No opinion. Decision and order amended as asked in the moving papers.


text:
    Matter of Way’s Will.
    Sup. Ct., 3 D.,
    May 14, 1895.
   No opinion. Decree of the surrogate affirmed, with costs and disbursements of this appeal.


text:
    Sarah A. White v. Dionis Frankel et al.

    Sup. Ct., 1 D.,
    May 17, 1895.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Joseph C. Woodbridge et al., Resp’ts, v. John S. Wise et al., App’lts.
    Sup. Ct., 1 D.,
    March 15, 1895.
   No opinion. Judgment affirmed, with costs, on opinion of referee,


text:
    Lewis A. Young, Resp’t, v. Clark C. Jordan, App’lt.
    Sup. Ct., 3 D.,
    May 29, 1895.
   No opinion. Judgment affirmed, with costs and disbursements.


author: Dwight, P. J.

text:
    George B. Miller, Resp’t, v. Union Central Life Insurance Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    Insubaxce — Recovery back op premiums.
    The insured is entitled to recover back the premiums paid and surrender the policy, upon discovery of fraud, where the company’s agent, in filling up the application, intentionally wrote a false answer without the knowledge of the applicant who signed the application upon the agent’s statement that it was all right.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court.

      W. H. Meads, for app’lt; E. G. Mansfield, for resp’t.
   Dwight, P. J.

The action was to recover a premium paid by the plaintiff on the issuance to him of a life policy by the defendant, on the ground that such payment was procured by the fraudulent conduct and representations of the defendant’s agents. Several specifications of fraud were made by the complaint, all but one of which, however, were withheld by the court from the consideration of the jury. That one was submitted in the following language of the charge: “ It is the claim of the plaintiff that Wright (the general agent of the defendant), and the doctor associated, with him, produced and sent to the company a record which purported to be a medical examination of the plaintiff, which was inaccurate and fraudulent; that in it they recorded an answer that was not given by the plaintiff, and which was known by these parties as not to have been given by him, which answer, if made, would make the policy issued to the plaintiff void.” The plaintiff was a restaurant keeper, and kept a bar in his restaurant. Wright, the agent who took his application, was in the habit of taking lunch there, and knew very well the business in which he was engaged. He took the application in the restaurant, and in plain sight of the bar. He afterwards brought in the examining physician, and introduced him to the plaintiff, and the medical examination was taken, and reduced to writing, in a little room separated from the bar only by a lattice-work partition. In that examination occurred the printed question, “ Are you engaged in any way in the sale or manufacture of alcoholic, malt or vinous ? ” and to this the clan wrote the answer, “ Ho.” In respect to this question" "and answer, the plaintiff testified that neither the agent nor the medical examiner read that question to him; that they aslced him if he owned the bar,- and he told them he did; that they asked him if he ever tended the bar, and he told them he did once in a while, when the barkeeper was out. He testified that he did not read the examination after it was filled out, nor was it read to him, but that he signed it as he was told to do, on the statement that it was all right, and ignorant of the fact that it contained the question and answer above stated. The agent testifies that he was not present at the taking of the examination, and the medical examiner that he read to the plaintiff the question in dispute, and that he answered it in the negative. This made the single issue of fact which was submitted to the jury, and they found thereon in favor of the plaintiff. The court charged the jury that if the fact was as testified to by the plaintiff, that he informed the agent and medical examiner that he owned and kept the bar, and sometimes attended upon it himself, and the examiner inserted the negative answer to the question quoted, and took the plaintiff's signature to the examination without reading it to him, then the fraud complained of was established; that there was no room for the theory of mistake; and that .the jury might assume it was done for some ulterior purpose. There was no exception to this instruction, nor to any portion of the charge. In his complaint the plaintiff alleged that when he discovered, after the payment of the first premium on his policy, that he was recorded as having made the false answer to the question concerning his engagement in the liquor traffic, he requested the defendant, through its said general agent, to waive the provision in his policy which prohibited such occupation on his part, and that the defendant refused so to do. This allegation is supported by the testimony of the plaintiff, to the effect that he did make such request, and that the only proposition made to him in response was that if he would amend his answer in question, so as to state that he was the proprietor of the bar, but that he had a bartender, and did not attend to the bar himself, the company would give him the waiver; but that the plaintiff refused to make the answer in that form, for the reason that it would still have been a false answer to the question, and, as the court instructed the jury, on this point there was substantially no controversy. On the trial the plaintiff produced the policy, and offered then and there to cancel and surrender the same. This, then, is the case which went to the jury, and was determined by a verdict for the plaintiff, and that verdict was, no "doubt, sufficiently supported by the evidence. It is upon its exception to the denial of its motion for a nonsuit, and for the direction of a verdict, that the defendant depends for an argument in support of this appeal, and that upon the ground that, upon the facts testified to by the plaintiff, the defendant would have had no defense to an action on the policy. This may very well be conceded, but, the proposition is not to be entertained that, such being the facts, it was the duty of the plaintiff to go on through his lifetime paying the premiums on a policy which, on the face of the paper on which it had been procured by him, was void, and at his death leave to the beneficiary named therein the legacy of a lawsuit, without even the benefit of his testimony to prove the fraud which had been perpetrated upon him. We have no doubt, upon the facts established by the verdict in this case, that the plaintiff’s action was well brought, and the judgment properly rendered in his favor.

The judgment and order appealed from should be affirmed.

All concur. So ordered.


author: Ware, J.

text:
    The People ex rel. William H. Berby, App’lt, v. The Common Council of the City of Auburn et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    1. Municipal corporation — City attorney.
    In a proceeding to remove the city attorney from office for misconduct, the sufficiency of the notice of the charges is not affected by the fact that some of the charges were subsequently amended merely in amplification of the original charges, where an adjournment of several days was taken to give the city attorney an opportunity to meet the amended charges.
    2. Same — Disqualification.
    Members of the common council, who preferred the charges against the city attorney, are not thereby disqualified from taking part in the pro ■ ceeding to remove him.
    S. ¡Same — Misconduct.
    The city attorney is guilty of misfeasance and malfeasance in office, where he stipulates, in an action against the city, not to appeal from the decision of the general term of the supreme court to the court of appeals, and subsequently reports to the common council that he has done nothing to prevent an appeal.
    4. Same.
    Though, after such stipulation, he is appointed to office for another term, he is guilty of such misconduct in the second term of office as will authorize his removal, if he, during such term, reports that he had done nothing to prevent an appeal.

      Certiorari against the common council of the city of- Auburn and others to review the determination in removing relator from the office of city attorney.

      Teller & Hunt and Robert H. Drummond, for relator; Lyon & Pierce, for resp’ts.
   The relator was first appointed city attorney by the common city in April, 1891, to fill a vacancy. In March, 1892, he was again appointed for a full term of two years, and in March, 1894, reappointed. The common council is composed of the mayor and ten aldermen, whose terms of office are two years, commencing the first Tuesday of March after their election. In September, 1892, one Maude Marie V. Par-cells commenced an action in the supreme court against the city to recover damages for a personal injury sustained by her by reason of stepping into a hole in a defective sidewalk. The relator, as city attorney, appeared for the city, it defending. The action was tried in May, 1893, at the Cayuga circuit, and resulted in a verdict for the plaintiff for §9,000, besides costs. The relator appealed, for the city, to the general term. The trial of the cause occupied several days, and the evidence was voluminous, amounting to about 400 pages of typewritten matter. The relator was •unable to get a copy of the stenographer’s minutes until about the 1st of August. On September 25th a proposed case and exceptions were served, consisting of sixty pages, and on the 19th of November 613 amendments were served to the proposed case, and the case was settled December 7, 1893. The papers then had to be printed, and there were some delays in that matter. The case, as settled, did not show that it contained all the evidence given upon the trial. The appeal was noticed for the January general term, 1894, the printed case not having been served; and the plaintiff’s attorney threatened to make a motion to dismiss the appeal, under the rules, for the want of such service. Some difficulty occurred between the attorneys in regard to such delay, and the relator, being pressed, gave a stipulation providing that if the printed cases were not served on or before January 5th the appeal might be dismissed, and judgment rendered for the plaintiff. The case was put upon the day calendar, and reserved for January 10th. The printed cases were not satisfactory, on account of some mistake in the printing, and were not served; and on January 8th the plaintiff’s attorney served a notice of motion to dismiss the appeal and for judgment, to be heard on the 12th. The plaintiff’s attorney insisted upon the motion, unless the relator would stipulate to abide the judgment of the general term, and not appeal the case to the court of appeals, but with permission to the plaintiff to appeal, in case she were defeated at the general term. The relator insisted that he did not expect to go beyond the general term, and gave the stipulation binding the city not to appeal to the court of appeals. The stipulation was not filed, and the relator gave no notice thereof to the common council, although he claims to have told individual members of the council. In March, 1894, the general term handed down its decision, affirming the judgment. After the relator had been reappointed the second time, rumors reached members of the common council of the stipulation not to appeal to the court of appeals, and the subject came up at meetings of the council; and the relator, in effect, denied that he had executed such a stipulation, and made a report to the common council, under date of April 16th, 1894, stating the judgment of affirmance, and quoting from the opinion of the court, “that the jury was justified, from the evidence, in finding the plaintiff was free from negligence contributory to her injury, and that the verdict seemed to be fully sustained, from the evidence.” The report continued that the relator had advised settlement for an amount less than the ultimate recovery, which the common council had declined to consent to, and again advised that the judgment be .paid, as there was no possible chance of the city’s succeeding in the case, and concluded as follows:

“An appeal to the court of appeals means only additional cost and expense. The city will be beaten, without question. I have heard rumors that the city could not appeal. It has been my policy to pay but little attention to street gossip or the newspapers, whose correspondents have personal reasons to misrepresent and distort the truth; and I will only say, if your honorable body sees fit to direct that an appeal from the judgment of the general term be taken in this case, there is no reason why the same should not be done. ISTothing I have done can prevent the same."

There was nothing in this report to indicate that the stipulation had been given. After that the city council, by resolution, directed the relator to take the necessary steps to appeal the cause to the court of appeals. A committee of the common council was appointed to investigate the matter, — W. C. Firth and Clarence TJ. Chedell, members of the common council. They reported, under date of June 11, 1894, the execution of such stipulation, and charging the relator with neglict and violation of duty as attorney of the city, in regard to his proceedings in that action, and the giving of such stipulation, and with suppressing the existence of the stipulation from the common council, with intent to mislead and deceive. A motion was afterwards made at a special term of this court to set aside and annul the said stipulation. The relator took part in the preparation of the papers for such motion, being present and assisting when the motion was made, and made an affidavit in which he stated thathesignedthe stipulation to save delay, believing that the only question in the case was contributory negligence, and that the decision of the general term would not be*reversed by the court of appeals, and added “ that deponent had no authority from the common council of the city of Auburn to sign such stipulation, but did it believing it to be for the best, and that there was no consideration for said stipulation." The mayor and other members of the common council made affidavits, of which the relator had knowledge which were read upon the said motion, in effect that they did not know of the existence of such stipulation, and that the relator had no authority to make it. On June 11, 1894, at a meeting of the common council duly called, written charges were preferred against the relator, which were served upon him on the 13th of June, and he was notified to attend at a meeting of the common council for the 28th of June. These charges, in effect, accused the relator of malfeasance and misfeasance in his office as city attorney, with respect to the management of the said action ; with negligence in regard to the same; with the giving of the said stipulation without authoritywith giving a false report to the common council in regard to the same, and which report suppressed the fact of such stipulation, and with falsely stating that there was nothing to prevent the appeal to the court of appeals, when he knew of the existence of the stipulation which prevented it; and with improper conduct and bad faith toward his client, the city of Auburn, in the said action, and forgiving advice to it upon a false or assumed state of facts.

By section 44 of the charter of the city, it was provided:

“ That the city attorney shall be the legal advisor of the common council and- of the several departments of the corporation; shall prepare all legal papers for the city ; have the management of all its law business, and perform such other duties as the common council may require.” 1

The twenty-seventh section of the charter provides as follows :

“ No person appointed under the provisions of this act shall be removed from office except by the concurring vote of two-thirds of all the members of said council; unless for malfeasance or misfeasance in office when, after an opportuity to be heard before said council upon a notice of two weeks, such persons may be removed by a concurring vote of a majority of said members.”

The relator answered denying these charges, and proceedings were had thereon before the common council in the summer of 1894, and testimony was given under oath of witnesses, documentary evidence introduced, and the relator sworn in his own behalf. Counsel appeared for the prosecution and for the relator before the common council, and the forms of trial in courts were observed as to the proceedings, and the relator had full opportunity of being heard in his'defense. The mayor presided, and the common council made rulings as to the admission or rejection of evidence. The relator was found guilty by the common council, by a majority vote, of the charges, and removed from office, and upon his application a writ of certiorari brings the subject before us.

The relator attacks the jurisdiction of the common council, in this: that he had not received the notice required by statute, of fourteen days, of the charges against him. This contention is not well founded, as the proof shows that he had the fourteen days notice of the substance of the charges upon which he was ultimately convicted. The amendments of one or two of the charges, which occurred during the progress of the investigation, were but an amplification of the original charges, and made in his presence, and an adjournment of several days was taken by the common council to give him an opportunity to meet the amended charges, and the relator had every reasonable opportunity to do so.

He further assails the jurisdiction because two of the common council (Firth and Chedwell) who voted upon the charges and took part in the proceedings, had made a report to the common council, upon an investigation made by them, substantially preferring the charges that the council subsequently made. The common council is created, by statute, the only tribunal that can take proceedings against the relator for the matter alleged against him. It is therefore absolutely necessary that this body take this action, or it cannot be taken at all. Consequently the 'duty that devolved upon each member of the common council, to take part in the proceeding, was absolute, notwithstanding he may have formed such on opinion or taken such action in the premises as would disqualify him if he were a judge or juror in an action at law. In re Ryers, 72 N. Y. 1, 11-13," the county judge of Richmond county has made an order appointing commissioners in a proceeding to drain lands under a statute, and lands in which the judge was interested ; he being the only authority, under the statute, that could appoint such commissioners. The point was made that the judge was disqualified from making the appointment, on uccount of being an interested party; and the court of appeals, after citing many authorities, reaches the conclusion “that it must be the law, from these cases, that where the judicial power has been confided to one judge, and if he should fail to act there would be no means of proceeding in the matter, though interested, he may take such cognizance of the case as is absolutely necessary, so far that the party shall not be without remedy.” This we understand to be confined to cases where the judicial officer has not such an interest in the cause or matter that the result must necessarily affect his personal or pecuniary interest; or where his interest is minute, and he has so exclusive a jurisdiction, by constitution or statute, that his refusal to act in the cause or matter will prevent any proceeding in it, then he may act, so far as that there may not be a failure of remedy. This is the rule as to judicial officers. The rule would be more liberal still in this case. The common council, in this proceeding, were, strictly speaking, not a court, nor were its members judges. The proceeding was not a common law trial, with the incidents and common law rights pertaining to the trial; nor, strictly speaking, was it a trial before a court. It was an investigation required by the statute to furnish information of the common council, upon which it could act. People v. Board of Police Com’rs, 93 N.Y. 102, 103 ; 98 id. 334, 335; People ex rel. Lee v. Doolittle, 44 Hun, 293 ; 7 St. Rep. 651. These members of the common council had no pecuniary interest in the result of the proceeding, and were not in any sense _ parties to it, further than to discharge the duties imposed upon them by law. We must hold that the common council had jurisdiction, and that the authority conferred upon it by the statute in relation to the subject-matter has been pursued in the mode required by law in order to authorize them to make the determination.

The remaining questions are whether, under section 2140 of the Code of Civil Procedure, in making their determination, any rule of law affecting the rights of the relator has been violated, to his prejudice, and whether there was any competent proof of all the facts necessary to be proved to authorize the making of the determination, and, if there was such proof, whether there was, upon all the evidence, such a preponderance of proof against the existence of the fact alleged against the relator as constituting malfeasance or misfeasance, or both, as that a verdict of a jury affirming the existence thereof, in the supreme court, would be set aside as against the weight of evidence. The relator claims that, assuming that the acts charged against him have been shown by competent evidence, they constitute neither malfeasance nor misfeasance. What do these terms mean, when considered in connection with the relation of attorney and client, and the purpose of the statute in clothing the common council with the power of removal? Light can be gathered upon this subject from the reciprocal duties and obligations of the client and attorney. “ Malfeasance ” has been defined in Bouvier’s Law Dictionary to be “ the unjust performance of some act which the party had no right, or which he had contracted not, to do.” And the same authority defines “ misfeasance ” as the performance of an act which might lawfully be done, in an improper manner, in which another person receives an injury. And the Imperial Dictionary defines “ malfeasance” as: “In law, the doing of an act which a person ought not to do; evil doing; wrong; illegal deed,” — and defines “ misfeasance ” to be: “ In law, a trespass or wrong done; also an improper performance of some lawful act,” — and cites Wharton.

The true relation of client and attorney has been defined to be as.follows: “The principal duties of an attorney are to be true to the court and to his client; to keep the client informed as to the state of business; to keep his secrets confided to him as such.” To which may be added that the attorney is commissioned by the court to hold himself out to the world as competent and trustworthy, that the public may rely upon him; chat he has the necessary legal knowledge to represent his clients in courts of justice and other tribunals, and the integrity which will protect them from all fraud and wrongdoing on his part. He must have no secrets from his clients as to their business. He must be open and frank with them, and, if he performs any act without first consulting them, that is important in their affairs, though he may have authority so to do, he should communicate it to them at the first reasonable opportunity. Above all, he should be guilty of no bad faith, double dealing with, or suppression of the truth, from them. He is an officer of the court, and the court must at all times be astute to discover any professional misconduct on his part, and take proper action in reference to it. We have no doubt but what the matters charged, if true, constitute both malfeasance and misfeasance, under the conditions of this case. The recital of those facts, to some extent, appears above. Without the knowledge of the common council, the relator did stipulate that there should be no appeal, so far as the city was concerned, to the court of appeals. This was a most important step, and barred the city of its right of hearing in the court of last resort in regard to a judgment against it of a large amount. The attorney had the power to make this stipulation, under the charter of the city, and by virtue of his power as a general attorney in the action. The stipulation not to appeal was a proceeding in the cause, and by reason thereof the plaintiff in the action referred to waived a substantial right, viz., to move to dismiss the appeal, under the rules, when the defendant was in default. And see Smith v. Barnes, 60 St. Rep. 631, and cases cited.

The relator testified before the common council, and produced two or three witnesses to confirm his statement, that, at an executive session of the common council, authority was given him to take . such action with reference to appeals in the case as he saw fit. This was disputed by other evidence, and was therefore a question of fact, for the common council to determine; and it was upon this question that affidavits prepared by the relator, or under his supervision, and his own affidavit, showing that no such authority was given, were introduced, properly, in evidence. If he had such authority, why did he deny it in his affidavit? When he made' his report to the common council as to the conduction of the action of Maude v. Parcells, he was directly called upon to state whether he had taken any step in that action to prevent the city from appealing to the court of appeals. It was his duty to have frankly reported that fact to the common council. Instead of so doing, he avoids the question, and distinctly says he had done no act that would prevent the city appealing to the court o£ appeals. We find nothing in the evidence to excuse or even palliate this feature of his report; and his wrongdoing lies more in the fact that he sought to suppress from his client, the city, the knowledge of the important fact of the execution of this stipulation, than to induce them to act without that knowledge. He substantially admits he made, in the presence of the common council, the statements “that he had never signed any stipulation which prevented the city from carrying the Parcells Uase to the court of appeals; but there was no such stipulation; that, if he had signed it, he had done the act of a seven year old boy, and was not fit to be the city attorney; that there was no occasion for making any such agreement, and, if any stipulation existed, it was a forgery,” etc, — and which seems to show conclusively that the relator was seeking to suppress from the city the fact of the execution of the stipulation.

The relator makes the point that the common council had no authority to try the relator because the acts charged as malfeasance and misfeasance were committed by him during a former term of office. ■ It is true that the stipulation not to appeal to the court, of appeals was made during the term of the relator’s office that expired in March, 1894; but the report made by him as to his proceedings in the case, and the suppression of facts and false statements in relation to the same, was made after the commencement of the term from which he was removed, and the whole matter was thus carried into that term. The question arose upon the impeachment trial of Judge Barnard before the court of impeachments at Saratoga upon a motion to strike out the charges of certain offenses alleged to have been committed by the judge during a prior term of office. The judge had been re-elected, and his counsel claimed that such re-election had condoned all prior offenses, and that he had come anew into the possession of his office, approved by the judgment of the people, and certified as capable and. worthy to occupy the position and discharge the duties of a justice of the supreme court. 1 Trial of Barnard in Court of Impeachment, p. 147, et seq. The point was overruled by the court, and he was convicted as well of offenses committed during a prior term as during the term then existing.

The relator strongly urges that strong, grave errors were made by the common council in admitting and rejecting evidence, to his injury. We will not attempt to pass over the rulings in detail, but will notice some of the most important ones, that our position may not be misunderstood in regard to them.

In the proceedings of the common council, a resolution appears and was adopted under objection, whereby the council resolved to take judicial notice of, and to consider, all statements made by the relator, in both open and executive sessions, with reference to these stipulations, and matters connected therewith, and particularly to certain statements enumerated, which, as appears above, the relator substantially admitted. This proceeding was error. The common council could not act upon their own knowledge. People ex rel. McAleer v. French, 119 N. Y. 502; 30 St. Rep. 72. And had it not been substantially cured by the admissions of the relator, when sworn, that he had made those statements, substantially, a .grave question would arise as to our duty with regard to this error. The proceedings of the common council also shows that the report of the two aldermen above referred to was received, under objection, in evidence. It was doubtless meant to be received as a part of the history of the investigation, and not as evidence, strictly, as it was not in any sense evidence, and as such it was ■error to receive it; but, as the reports only set forth what was substantially proved by competent evidence, the relator was not seriously prejudiced thereby.

This court held in People v. Flair, 29 Hun, 125, that decision as to the admission and rejection of evidence cannot be reviewed by certiorari, under section 2140. To the same effect is People v. State Board of Assessors, 22 Week. Dig. 453; being both general term decisions of the old Fourth department. In People ex rel. Schabacker v. State Assessors, 47 Hun, 451; 14 St. Rep. 309. the general term of the Third department, speaking through Judge Parker, in referring to the rule laid down in last case cited, say:

“ I am not prepared to adopt fully the rule laid down by the •court in that case. Such a rule would render a court powerless to review the arbitrary action of a board like the state assessors in refusing to receive competent and material evidence bearing upon the issue to be determined. * * * And after an examination of the decisions of the court of appeals which resulted in establishing the rule which the framers of the Code of Civil Procedure incorporated in subdivision 3 of section 2140 leads me to the conclusion that a refusal to receive evidence absolutely essential to the protection of either of the parties would constitute an erroneous ruling of law, affecting the rights of the parties, within such subdivision.”

In People v. Board, of Supervisors of Fulton County, 74 Hun, 251, 253; 55 St. Rep. 888, the court say:

“ Although the court may review the action of supervisors, in extreme cases, in receiving or rejecting evidence offered on the audit of a claim against the county [citing the last case (47 Hun, 450)], vet ordinarily an error of the board of supervisors, or its committee, in receiving incompetent evidence, will cause a reversal of its determination; ” citing the cases in 29 and 74 Hun, and in 22 Week. Dig., supra.

The true rule to be gleaned from these cases, and which is consistent with the purposes and spirit of section 2140 of the Code, is that errors in the reception or rejection of evidence should be disregarded, if the tribunal had jurisdiction of the subject-matter of the investigation, and had conducted its proceedings in the mode required by law in order to authorize it to make the determination, and whether there was sufficient competent evidence in the case upon which the tribunal would be authorized to reach the determination which it made. The competent proof to sustain the charges given upon the hearing before the common council was •clear and conclusive, and was so, independent of, and notwithstanding the errors committed as to the reception of evidence. Had none of the errors with regard to the reception or rejection of evidence occurred, the result must have been the same, and consequently the relator was not prejudiced by any such errors.

The misconduct of the relator does not seem to have been corrupt, nor does it appear that he obtained any pecuniary advantage from it. Mistakes occurred during the progress of preparing the appeal, of a serious nature, such as omitting the statement that the case contained all the evidence and proceedings, and in permitting the city to be in default in serving the printed cases in time, and ether defaults which the record discloses; but stipulations extending time were executed on both sides, and considerable excuse was shown for the delays, in consequence of the voluminous nature of the evidence, and getting the stenographer’s minutes and in settling the case. The relator, instead of stipulating away the rights of his client when he got into difficulty at the general term, should have disclosed the facts, and applied to the court for relief, which he undoubtedly would have obtained. Instead of doing this, he obtains temporary relief from the other side at the sacrifice of his client’s interests, and all of his troubles have grown out of that mistake, and the fatal attempts to prevent its coming to the knowledge of his client. The relator insists that, notwithstanding all this, no injury came to the city. Injury is presumed where a substantial right of the client is violated or an imposition upon the client is shown. From these conclusions it follows that the determination of the common council in removing the relator is affirmed, and the writ of certiorari dismissed.

All concur.


author: Giegerich, J.

text:
    Walter S. Drake, Resp’t, v. Weinman & Company, App’lt.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    1. Deposition — Discovery.
    Under section 872 of the Code, a discovery may be granted before the action is commenced.
    2. Same
    In a proper case, an officer of a corporation may, as witness, under subdivision 7, section 872 of the Code, be required to produce corporate books and papers as an adjunct to his oi al examination, and to refer to them for the purpose of making his examination more effective.
    3. Same — Fiduciary relation.
    Where a fiduciary relation, or the relation of principal and agent, exists, and the facts are peculiarly within the knowledge of the party sought to be examined, his duty is one of full disclosure, and the technical rules applicable to an order for the examination of a party before trial are relaxed.
    Appeal from an order denying a motion to vacate an order for the examination before trial of certain of defendant’s officers.

      Howe & Hummel, for app’lt; L. Karge, for resp’t.
   Giegerich, J.

The defendant is a corporation organized under the laws of the state of New Jersey, doing business in the-city of New York, and claims its business to be the purchase- and sale of stocks and bonds.” The plaintiff resides at Brockton, in this state, and in his affidavits to procure the examination of certain of the defendant’s officers before trial, he, in substance, alleges that prior to February 27, 1894, he received from the defendant company a circular or prospectus setting forth the alleged advantages to be derived by the investment of money in what was therein styled as their “ Special B. B. Stock Syndicate,” for dealing in stocks, it being therein stated that said alleged syndicate had been operated in the past by the defendant company at a great profit; that still greater profits were to be expected in the-future from investment therein according to the plan referred torn such prospectus; that the defendant company was a broker engaged in buying and selling stocks, grain, etc., and had unusual facilities for 'dealing in the stocks embraced in said alleged “ Spe cial B. B. Stock Syndicate; ” that they would use their best endeavors as agents and brokers for the benefit of persons intrusting them with money for investment therein, and would render when desired, full accounts of all deals or transactions made; that-the plaintiff, believing their representations to be true, and relying thereon, at various times between February 25 and July 20,1894, sent to and deposited with the defendant company sums of money amounting in the aggregate to $2,800, to be used and invested by it as his agent and broker in the alleged “ Special B. B. Stock Syndicate; ” that the plaintiff, during the course of his dealings with the defendant company, received from it $1,124.50, which he was informed were the profits from his investments, and on or about the 21st day of October, 1894, he received from the defendant company its check for $420, which was stated to be the balance of the moneys deposited by him, after deducting alleged losses; that plaintiff has requested the defendant company to-give him an account of the moneys so deposited for investment, and to account therefore, but it has refused to do so, except by a general statement of account; that the defendant company has refused to allow plaintiff to examine its books, papers or accounts supposed and alleged to contain an account of the transactions or dealings had by it as his agent and broker; that from such information as he has been able to obtain he believes, and, on information and belief, alleges, that such general statement of account so rendered to him was false and untrue, and did not correctly state the transactions had by the defendant company for the plaintiff; if any transactions were in fact actually made or had, or that no transactions were really made or had by the defendant company, as the agents and brokers of the plaintiff, and wjth his money, but the statement so rendered was one simply of pretended purchases and sales, no purchases and sales being in fact ever made, and the whole consummated in pursuance of a cunningly devised scheme to delude and defraud plaintiff and deprive him of his money;. that the defendant company, if it actually did buy or sell any stock for the plaintiff, failed to use its best en•deavors in his behalf, but acted solely for its own interests. The plaintiff seeks an examination of the officers of the defendant company, and production of its books, papers and accounts, because, as plaintiff swears, he does not know, and has no means of ascertaining, the manner in which his said money was invested by the defendant company, if it was invested at all, or how the same was in fact used, the knowledge thereof being entirely within its own possession, and presumably contained in its' books, papers and accounts, and that it is material and necessary that plaintiff should know the facts and particulars in regard to said transactions, in order to properly frame his complaint herein. Upon the foregoing facts an order was granted, the material portions of which are as follows:

“ It is ordered that said Charles Landsberg, Mark Bloomingdale and Charles Weinman, aforesaid, be examined, and their deposition taken pursuant to sections 870, 871, 872 and 873 of the Code of Civil Procedure, and that for such purpose they attend before * * * (naming referee, and the time and place of examination), and that they, and each of them, then and there procure for examination and inspection, at the time and place aforesaid, the books, papers and accounts of the said defendant, showing all the dealings or transactions had or made by it as the agent or broker of the said plaintiff,’’ etc.

A motion was made to vacate the order, based upon five grounds, which will be stated and considered seriatim.

1. That the action had not been commenced, and was not pending, at the time the order was obtained and served. To this it need only be said that the statute does not require that the action •should be pending. On the contrary, section 872 of the Code of Civil Procedure expressly provides for cases where “ an action is not pending, but is expected to be brought.” The case of Manufacturing Co. v. Pettingill, 2 Abb. 57. C. 162, relied upon by the ■ appellant, was decided under section 391 of the old Code, which contained no equivalent of the language just quoted from the present section 872.

2. That the order for examination and production of defendant’s books could only be made on notice toi the defendant, and could not be allowed ex parte. This objection rests upon a misapprehension of the meaning of the order. Subdivision 7 of section 872 makes provision in cases where, as here, the party is a corporation, and the witnesses to be examined are officers, for the production of books and papers, 11 as to the contents of which an examination or inspection is desired.” This means an examination and inspection by the witnesses upon their oral examination, to enable them to answer proper inquiries, as upon a trial. It is well settled, upon authority, that an inspection and discovery, with the privilege of copying, bv an adverse party, can only be had under, and in the manner provided by sections 803-809 of the Code. Dick v. Phillips, 44 Hun, 603; 5 St. Rep. 228 ; Mc Guffin v. Dinsmore, 4 Abb. N. C. 214; Black v. Curry, 1 Civ. Proc. R. 193; Levey v. Railroad, Co., 53 Supr. 267. And it is equally well settled that in a proper case a witness may, under section 872, subd. 7, be required to produce books and papers as an adjunct to' his oral examination, and to refer to them for the purpose of making his examination more effective. Talbot v. Doran & Wright Co., 30 St. Rep. 558; Levey v. Railroad Co., supra; Chaffee v. Association, 18 St. Rep. 960; Bloom v. Extract Co., 18 Supp. 179 ; Fenton v. Dempsey, 10 St. Rep. 733; Black v. Curry, supra.

3. That the affidavit alleged the plaintiff’s cause of action to be an accounting, and the facts shown clearly proved that the plaintiff was in possession of ample material to prepare a complaint. Conceding, for the sake of argument, that all this is so, we must, nevertheless sustain the order. Where a fiduciary relation, or the relation of principal and agent exists, and the facts are peculiarly within the knowledge of the one sought to be examined, his duty is one of full disclosure, and the technical rules applicable to such orders are relaxed. Carter v. Good, 57 Hun, 116; 32 St. Rep. 501; Miller v. Kent, 59 How. Prac 322; 10 Wkly. Dig. 361; Talbot v. Doran & Wright Co., supra; Fatman v. Fatman, 45 St. Rep. 859 ; Green v. Cary, 81 Hun, 496 ; 63 St. Rep. 332. As was said by Chief Judge Daly in Talbot v. Doran & Wright Co., supra, — a case which was singularly like the present one in manj- of its features : “ The principal has a right to know the facts in advance of the trial, in order to investigate such transactions, and make preparations for the trial.”

4. The material allegations of the affidavits were all on information and and belief, neither the source of the information nor the grounds of the belief being stated. Here, again, the principle of the cases last cited is applicable, and we cannot do better than quote more from the opinion in Talbot v. Doran & Wright Co., supra:

“ The objection that the allegations of the plaintiff’s affidavits are upon information and belief, and that there is a mere suspicion or conjecture as a basis for the examination, is nota sound ground, under the circumstances of this case. The plaintiff is entitled to the information he seeks from his brokers, and is not bound to make out a case against them, as a condition of the examination.”

5. On the merits, as shown by the defendant’s affidavits, no examination should be allowed. Bloomingdale, in his affidavit, says: “ The account which I annex and make part hereof is a true and just statement, and furnishes all the information that the plaintiff could possibty obtain upon an examination.” The account referred to is a most meager one, taken — so it is said in the subsequent affidavit of Weinman — from the ledger, and does not disclose the names of the persons with whom the alleged transactions were had. It was therefore useless as affording the plaintiff a clue by which he could follow up and investigate the alleged purchases which were claimed th have resulted in such disastrous losses. After Bloomingdale’s denial that any further information could be had upon an examination, and after the counter affidavits of stockholders that reputable men in their business keep books which contain the names of persons to whom stock was sold, and of whom it was bought, and other details of each transaction, Weinman, in his said affidavit admits that the “ names do appear in the stock purchase and sales books * * * and on original contracts in the possession of the defendant,” and then proceeds to make tardy profession of his willingness to permit an inspection at defendant’s place of business. The language of Judge Davis, in Miller v Kent, supra, seems just in point:

“A commission merchant or broker has no right to conceal from his customer any portion of his business and dealings in relation to the property alleged to have been bought and sold ; and, where he witholds the fullest information on that subject, the right to examine before trial, in an action brought to recover alleged profits or to adjust the unsettled' accounts, should be fully accorded. We are not at all satisfied with the good faith of the alleged proffers of the examination of the defendant’s books, etc. The disingenuousness of the attempt thus to defeat the examination of defendant as a witness must have struck the court below as it does this court.”

Under all the circumstances, we do not think that the plaintiff should be compelled to accept an inspection in place of the examination of the witnesses in connection with the books. For obvious reasons, the one remedy might not prove as effective as the other. For these reasons the order appealed from should be affirmed, with costs.

All concur.


author: Gtegerich, J.

text:
    Walter S. Drake, Resp’t, v. Thompson & Deer Company, App’lt.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    Appeal from an order denying a motion to vacate an order for the examination before trial of certain of defendant’s officers.

      Howe & Hummel, for app’lt; L. Karge, for resp’t.
   Gtegerich, J.

The defendant is a corporation organized under the laws of this state, and engaged in the brokerage business, and the buying and selling of stocks and securities. The features of this case are, in all substantial respects, identical with those in Drake v. Weinman & Co. (herewith decided) 67 St. Rep. 11, and nothing need be said in addition to the opinion there expressed. It follows that the order appealed from should be affirmed, with costs.

All concur.


author: Clearwater, J.

text:
    In the Matter of Pine Hills.

      (Ulster County Court,

      Filed April 12, 1895.)

    1. Villases — Incorporation.
    A failure or neglect on the part of any member of the board of inspectors to comply properly with the law relating to the incorporation of villages does not, of itself, vitiate the election.
    2. Same — Notice of election.
    Under section 7,-tit. 1, chap. 391 of 1870, as amended by chap. 172 of 1888, a man who owns no property, though his wife owns real estate within the territory of the proposed village on which she is liable to assessment and taxation, is not qualified to sign the petition.

      3. Same '
    Mor are those qualified, who own no freehold interest in real estate, and whose interest in personal property is of so vague and indefinite a character that it cannot be seized in satisfaction of an execution.
    Proceeding for the incorporation of a portion of the town of Shandaken, in the county of Ulster, as the village of Pine Hills. The certificate and other papers relating to the election were duly filed, and one of the electors appeals.

      F. B. Andrus and John G, Van Etten, for app’lt; Bernard & Van Wagenen, for resp’ts.
   Clearwater, J.

This is an appeal to review'proceedings taken to incorporate a portion of the town of Shandaken, in the county of Ulster, as the village of Pine Hills. It appears that on the 11th day of March, 1895, an election was held within the limits of the district which it is proposed to incorporate, and that on the 15th. day of March a certificate of such election was duly filed in the office of the clerk of the coupty of Ulster. It is alleged by the appellant that Joseph H. Risley, the acting supervisor of the town of Shandaken, at the time of the holding of the election, did not meet with the board of inspectors until after a number of ballots had not deposited in the ballot box ; that none of the inspectors of election, or either the poll or ballot clerks, took the constitutional oath of office prior to the organization of the board of inspectors or the receiving of ballots; and that the town clerk of the town was not in attendance during the day, and did not sign certificate of election or the canvas of votes.

A careful examination of the various acts passed by the legislature for the regulation and conduct of elections has led me to the conclusion that they should be liberally construed in favor of the election itself, and that a failure or neglect upon the part of any member of the board of inspectors to properly comply with the law does not, of itself, vitiate the election, although it may and does subject the derelict officer to severe penalties and punishment. I am therefore inclined to disregard so much of the objection filed by the appellant as are based upon a failure of the election officers to properly discharge the duties imposed upon them by law.

The statute provides that any part of any town, not in any incorporated village, containing a resident population of not less than 300 persons, may be incorporated as a village by complying with the provisions of the act, one of which is that a notice to determine whether the proposed territory shall be incorporated, signed by at least twenty of the electors resident within the bounds of the proposed village, we shall be liable to be assessed for the ordinary ánd extraordinary expenditures of the village, shall be published in a newspaper, if there be one within the territory, and shall be posted in ten public places within its bounds, at least thirty days before the holding of the election. It seems to be conceded that the notice which was signed was properly published and posted within the stipulated time. It is claimed, however, by the appellant, that, of the twenty-four persons who signed the notice, at least ten were not liable to be assessed, as required by the statute. It has repeatedly been held that this provision of the statute is jurisdictional, and a failure to substantially comply with its requirements is fatal to the validity of the proceedings for incorporation, for the obvious reason that it is necessary, before a village be incorporated, that at least twenty persons liable to be assessed for the increased expense of maintaining a distinct municipality shall signifjr in writing their willingness to assume their proportionate share of the additional burden. All of the signatories were confessedly electors resident within the bounds of the proposed village. Some of them did not own any property, but were married to women who were freeholders in their own right, seized of real estate within the territory proposed to be incorporated, and liable to assessment and taxation thereon. It is urged that the statute should be so construed as to include these signers, but to this construction I am unable to agree. The statute is clear and unambiguous in its language, admitting of no other interpretation than the simple import of the words : “Shall be signed by at least twenty of the electors resident within the bounds- of the said proposed village, who shall be liable to be assessed for the ordinary and extraordinary expenditures of said village.” The constitution, defines an elector to be a male citizen of the age of twenty-one years, who shall have been a citizen of the United States ten days, and an inhabitant of this state one year, next preceding any election, and for the last four months a resident of the county in which he may offer his vote. Const, art. 2, § 1. The wives of these signatories 'were not electors. The husbands who signed the notice were electors, but they were not liable to be assessed for the qrdinary and extraordinary expenditures of the village.

It is also claimed that some of the signatories were the owners of an interest in real property, the title to which was in others, and that they, therefore, were competent, and that still others, having no interest in real estate, were the owners of personal property liable to assessment. But some of the signatories admitted that they were insolvent to such an extent that unsatisfied jugdments existed against them, upon which executions had been issued to the sheriff of the county, and by him returned unsatisfied, because of his inability to find sufficient real or personal property out of which to satisfy them, and that these judgments had never been paid. It can hardly be claimed that signatories thus situated, owning no freehold interest in real estate, and whose interest in personal property is of so vague and indefinite a character that it cannot be seized in satisfaction of an execution, can correctly be said to possess property liable to assessment for the ordinary and extraordinary expenses of the new municipality.

A careful review of the entire testimony, with every disposition to be indulgent to the proposed incorporators, so far as that is possible without the violation of any well-settled legal principle, leads me to the conclusion that at least six of the signatories were not competent, within the meaning of the law. It is not without that I have reached this conclusion, as this is the second attempt made by the residents of Pine Hill to effect an incorporation. The difficulty in both instances seems to have originated from a lack of suffitient care in taking the intiatory and jurisdictional steps. It is not proper exercise of judicial power to so construe a statute as to permit its evasion, and I am constrained to hold that the proceedings are fatally defective, the election to have been illegal, and to grant an order directing another election to be held to determine the question.


author: O’Brien, J.

text:
    Edward L. Oppenheim et al., Resp’ts, v. James M. Waterbury et al., Impleaded, etc., App’lts.

      (Supreme Court, General Term, First Department,

      Filed April 11, 1895.)

    1. Guaranty — Consideration.
    An agreement by stockbrokers to purchase and carry certain shares for another on condition that they should receive the guaranty of third parties in pursuance of which the shares were purchased, is a sufficient consideration to support the guaranty executed by such parties after purchase was made.
    2. Evidence — Statute of frauds.
    That a written memorandum of a promise for the debt of another is ambiguous, does not render it void. Such ambiguity may be explained byparol evidence.
    Appeal from a judgment in favor of plaintiffs.

      William B., Hornblower, for app’lts; Otto Horwitz, for resp’t.
   O’Brien, J.

This action was brought by plaintiffs, who, under, the firm name of E. L. Oppenheim & Co., were engaged in business as stock brokers in the city of Hew York, against the defendants Waterbury and Loper, alleged guarantors, and one Matthew Griffin, as principal debtor. The latter, though named as a party, was never served with the summons and complaint, and has not appeared. On the trial it appeared that on April 3, 1893, Griffin asked the plaintiff E. L. Oppenheim whether he was willing to buy and carry for him 500 shares of cordage stock under the guaranty of the defendants Waterbury and Loper. Though at first expressing an unwillingness, upon the statement of Griffin that the proposed guarantors, were perfectly responsible, Oppenhiem finally consented. Griffin thereupon handed him a slip of paper, showing the report of a broker of the purchase of 200 shares of Cordage stock, which Griffin had given an order to another broker to buy, and said to Oppenheim, “When will you compare those 200 shares ?” Oppenheim testified that “ comparing stock ” meant stepping into the shoes of the first broker that had made the purchase. “In other words, if the party wishing to buy stock gives broker the direction to buy for E. L. Oppenheim & Co., that broker still stands the risk of it until I confirm it by comparing the stock. Then it becomes my purchase.” Oppenheim took this paper, and Griffin said he was going to buy the other 300 shares in the same way. Oppenheim then said: “You bring me a memorandum of 300 shares, and I will make out a notice and you take it to Waterbury and Loper, and have it indorsed, and then it will be all right.” The plaintiffs communicated with a broker named Prentice, who had purchased for Griffin on the 3d of April, about comparing the stock, and then prepared the written guaranty sued upon, which is as follows:

“ Office of B. L. Oppenheim & Co., 35 New St. & 4 Exchange
Court
“New York, Apl 3rd, 1893.
“Mr. Matthew Griffin: We have bought for your account and risk:
No. Shares. Description. Price. Time. Eirm Name. 200 N. 0. O. Com. 68% Reg. A. L, Norris. 200 68% Haight & Jewett. 100 68% Beebe & Van S.
“New York, April 3d.
“For value received, we hereby guaranty this account.
“J. M. Waterbury.
“G. Weaver Loper.
“Stocks or bonds sold ‘short’ will be borrowed for your account and risk. “E. L. Oppenheim & Co.,
“Per A. H.”

It thus appears that on April 3d Prentice purchased 500 shares of Cordage stock by the order of Griffin. In the course of the day the purchases were compared by the clerk of the plaintiffs whose business it was to do so, and the next day, April 4th, the stock was delivered and paid for. The guaranty was not actually delivered until April 5th, when Griffin brought it to the plaintiffs, signed by the defendants Waterbury and Loper. In explanation of the delay, Oppenheim testified that Griffin had informed him that he obtained the guaranty on the 3d, and had gone to plaintiff's office after three o’clock, but, finding that Oppenheim had gone home, he did not care to give the guaranty to anybody but him, so took it away again ; and that on the 4th, when this conversation was had, he then claimed that he had not the guaranty with him, having changed his coat, and left it in another, but that he would bring it down the next morning, which he accordingly did, and delivered it to Oppenheim. That a loss occurred, and that plaintiffs called on Griffin to take up the stock, and subsequently on the defendants Waterbury and Loper for additional margin, and that upon their refusal to do anything in regard to the stock it was sold, and a loss resulted, are not disputed. The propriety and regularity of the sale of the stock being conceded, and the jury having disposed of the question as to whether the plaintiffs were interested with Griffin in the purchase, these matters are no longer the subject of contention; the questions arising upon this appeal being ones of law, as to the validity of the guaranty itself, and the admissibility of certain testimony. It is contended that there was no consideration for the alleged contract of guaranty. This is sought to be supported by the argument that, at the time the paper was signed by Waterbury and Loper, the plaintiffs had already purchased the stock, and, as they made no agreement with Griffin to carry it for any definite period of time, there was no consideration for the guaranty as between plaintiffs and the guarantors; that there could be but two possible considerations, either an actual purchase of the stock on the faith of the guaranty, or a binding agreement to carry the stock for a definite time on the faith of the guaranty; and that neither of these was in fact shown to exist. „ This argument is claimed to be upheld by several cases cited, which go to the extent of holding that, if the debt or obligation be first incurred or completed, there must be a new consideration for the promise to guaranty that debt; and appellant refers to the rule as laid down in Brandt, Sur. § 17, that:

“ Where the consideration between the principal and creditor has past and become executed before the contract of the surety or guarantor is made, and such contract was no part of the inducement to the creation of the original debt, such consideration is not sufficient to sustain such contract.”

This section is but a corrollary of what is expressed in section 15 of the same work, which reads:

“ Where a promise that a surety or guarantor will become liable is part of the inducement on which the creditor acts in creating the original debt, this is sufficient consideration to support the contract of the surety or guarantor who subsequently signs.”

To sustain this last proposition of law, we are referred to many cases, but we think that of McNaught v.McGlaughry, 42 N. Y. 22, which is cited with approval in Erie County Savings Bank v. Coit, 104 N. Y. 537 ; 5 St. Rep. 790, sufficiently evidences the law of this state. There a principal executed and delivered a note to a creditor, which specified no time of payment, and at the same time agreed that he would procure B. to sign as surety if at any time the creditor should deem himself insecure. Afterwards the creditor returned the note to the principal, with the request that he would get B. to sign it, which he did, and B. was held liable. As said in the course of the opinion in that case:

“ The authorities are clear upon the two propositions involved in the question : (1) If Abram had given his note to the plaintiff, and the same had been accepted in performance of the contract, without further condition, and the note was yet unmatured, the obtaining an additional indorser would have been a gratuitous act on the part of Abram, and the indorser would not be bound. He would not be bound, not because there was no direct consideration moving towards himself, but because there was no sufficient consideration moving to his principal. On the other hand, if Abram had originally agreed with the lender that he would obtain the new indorser, and had obtained the money upon the faith of that promise, then his finding the additional indorser was based upon a valid consideration, and the indorser was held by his signature.”

The testimony here clearly shows that the stock was purchased upon the condition that the plaintiffs were to receive the guaranty of the defendants. In fact the defendants' guaranty and the purchase of the stock were parts of one and the same transaction, and we think, upon such facts, the purchase of the stock was consideration for the defendants’ guaranty. It clearly appears that plaintiffs entered into the transaction entirely on the faith of the proposed guaranty. Undoubtedly the plaintiffs ran the risk of the failure of Griffin to perform by obtaining such guaranty ; but when secured it related to the original agreement between the parties, became a part and parcel of the transaction, and thus made the consideration that moved to Griffin move as well to them. In thus considering the question, we have taken the view most favorable to the appellants, that the guaranty, though originally promised by Griffin, was a transaction completed before it was delivered. If it had not been forthcoming, it would have been entirely within the right of the plaintiffs at once to sell the stock, because their purchase was conditional upon Griffin’s promise to secure the guaranty. Until this was delivered to plaintiffs, the transaction was incomplete, so far as making Griffin the purchaser, and the effect of giving the guaranty was to alter the position of the plaintiffs from that of unconditional to conditional holders; and such an alteration in their position made upon the faith of the guaranty, was a sufficient consideration to support the defendants’ promise. We think, too, that the respondents correctly argue that the evidence warrants the inference that plaintiffs offered to purchase the stock upon Griffin’s promise to obtain the guaranty. In that event, when Oppenheim had purchased, Griffin became bound to procure the guaranty. The plaintiffs had a contract right against the principal debtor. Upon the guaranty being given, that right was extinguished, and the guaranty was given for the express purpose of extinguishing that right.

Another contention of the appellants is that the contract of guaranty is void under the statute of frauds; that, it being “ a special promise to answer for the debt, default or miscarriage of another ” there is no sufficient “ note or memorandum thereof ” in writing to comply with the statute. 2 Rev. St. p. 135, § 3, as amended by Laws 1863, chap. 464. We think the writing in itself sufficient; but, as said in Bank v. Kaufman, 93 N. Y. 281:

“ When, therefore, the language of a guaranty is ambiguous, and does not furnish conclusive evidence of its meaning, we are entitled to look at all the circumstances of the case, and arrive at the intention of the parties from these sources of information.”

Whatever ambiguity may exist, therefore, was cleared up by the evidence introduced, which, under the authorities, we think was for that purpose competent. As shown by the writing itself, and by the testimony, what was guaranteed was the account, and whatever might result therefrom; and, therefore, it is not sound nor logical to argue that, because no definite time was fixed during which the stock was to be carried, no consideration was expressed, the carrying of the account being a mere incident, and whether it was for- a definite or an indefinite time was entirely immaterial. The loss that resulted flowed from the failure of the principal debtor to pay for the stock, and the defendants could only be relieved of their liability as guarantors when the principal debtor paid the purchase price or satisfied the account.

The other points raised, as to the insufficiency of the writing tQ satisfy the statute of frauds, we think are met by the argument presented by the respondents.

Other exceptions relied upon relate to alleged errors of the court in admitting in evidence, over the defendant’s objection, the declarations of Griffin as against his codefendants. In the author already referred to (Brandt Sur. § 627), it is said : “ The rule of law is well-settled that, where declarations of a principal are part of the res gestee, they are evidence against the surety." If we accept this as a correct statement of the law, it was proper to allow plaintiffs to show just what was done by Griffin in carrying out his promise to deliver the guaranty; and, as all the declarations made by him were in the course of and before the delivery of such guaranty, we do not think it was error to admit them. But taking the contract between the parties, and what thereafter followed, in connection with the purchase of the stock by plaintiffs, and the subsequent delivery of the promised guaranty by Griffin on the 5th of April, we think there was sufficient to justify the disposition made by the trial court, even though we exclude all the evidence objected to, introduced on the part of plaintiffs, explanatory of their failure to receive the contract of guaranty before the 5th, and consisting of statements and declarations made by Griffin to Oppenheim.

Upon the merits, the plaintiffs were entitled to recover, and there being no valid legal objections presented, we think the judgment should be affirmed, with costs.

All concur.