author: Barrett J. : Davis, P. J.: Brady, J.:

text:
    THOMAS J. McCAHILL, Plaintiff, v. GEORGE J. HAMILTON, Defendant.

      Olíante)' 545 of 1875 — does not operate retrospectively.

    Chapter 545 of 1875, amending the Revised Statutes by providing that, “where an estate has been conveyed to trustees for the benefit of creditors, and no different limitation is contained in the instrument creating the trust, such trust shall be deemed discharged at the end of twenty-five years from the creation of the same; and the estate conveyed to trustee or trustees, and not granted or conveyed by him or them shall revert to the grantor or grantors, his or their heirs or devisees or persons claiming under them, to the same effect as though such trust had not been created,” does not operate retrospectively, but only applies to estates conveyed to trustees for the benefit of creditors after its passage.
    Conteoveesy submitted upon an agreed statement of facts under section 1279 of the Code of Civil Procedure.

      The plaintiff and defendant on the 21st day of September, 1879, entered into a contract under their hands and seals, by which the plaintiff agreed to sell, and the defendant agreed to purchase certain premises in New York, which contract the defendant subsequently refused to complete on the ground that the title was imperfect.
    Charles Ii. Iiall was, on the 8th day of November, 1889, the owner in fee of the premises in question and of other premises, and' on that day he executed and delivered to Charles M. Hall and David P. Hall a conveyance thereof in trust for the benefit of his creditors, which was recorded in the office of the register of deeds, in and for the city and county of New York, in liber 402 of conveyances, page 212, the 22d day of November, 1839.
    The said Charles M. Hall and David P. Hall, the grantees or assignees of said premises, accepted the said trusts, and proceeded with the execution thereof, and under the power of sale therein contained sold and conveyed some of the real estate conveyed by the said trust deed; but no part of the premises in question wns sold or conveyed by the said trustees.
    Charles H. Hall died intestate, on the 8th day of January, 1852, leaving two children, his sole heirs-at-law, viz. : Eliza A. H. Sayre, wife of Dr. Lewis A. Sayre, and Mary Jane Hall, and leaving his wife, Sarah, who has since died.
    Guo George Crookshank, on the 18th day of June, 1851, recovered a judgment in the New York Supreme Court against Charles Ii. Hall for the sum of $31,016.98 ; an execution was issued under the said judgment by which a sale was made on the 4th day of June, 1870, of the right, title and interest which the said Charles H. Hall had in said premises in question on the 18th day of June, 1851, or any time afterwards, at which sale Joshua C. Saunders became the purchaser for the sum of $2^500, that being the highest sum bidden, and ho being the highest bidder. The sherift’s certificate of sale was filed in the office of the clerk of the county of New York on the 4th day of June, 1870. Joshua C. Saunrlei’s, the purchaser, assigned the certificate of sale to Phineas C. Kingsland, by assignment dated 12th October, 1870, and James O’Brien (late), sheriff of the city and county of New York, by deed reciting the judgment, execution, assignment and sale, conveyed the said premises to Pbineas C. Kingsland, by deed dated September 5, 1871, and recorded in said register’s office, in liber 1207 of conveyances, page 30, November 27, 1871.
    Eliza A. H. Sayre, and ber husband, and Mary Jane Hall, on the 1st day of June, 1870, sold and by deed of that date conveyed, for the consideration of $2,000, the premises in question to Jane Warner, recorded in liber 1145 of conveyances, page 416, June 1, 1870; and the said Jane Warner sold and by deed dated November 10, 1870, conveyed for the consideration of $2,400, the said premises to said Phineas C. Kingsland, which deed was recorded in said office in liber 1145 of conveyances, page 416, June 1, Í870.
    The title of the plaintiff to said premises is derived under a conveyance made by the said Phineas C. Kingsland and wife.
    Charles M. Hall and David P. Hall, the assignees of Charles H. Hall, under the deed of trust, are both dead, without ever having conveyed the premises in question, or having, so far as appears, closed their trusts.
    The questions to be determined between the parties were :

      First. Whether the said Phineas C. Kingsland under the deed from the said sheriff, and under the conveyance by Eliza A. H. Sayre and Mary Jane Hall, the heirs-at-law of Charles H. Hall, obtained a good title to the premises in question divested of any claim of the assignees in trust, or their successors ?

      fSecond. Is the lapse of time since the execution and delivery of the deed in trust a sufficient bar (if pleaded) to the claim to be made on the said premises by the assignee in trust or their successors ?

      Third. Does the act (chap. 545 of 1875) discharge the trust, the same having been created more than twenty-five years, and the estate conveyed to the said trustees not having been granted or conveyed ?

      Fourth. Assuming all the facts above stated to be true, has the defendant any excuse in refusing to perform his contract ?

      JR. H. Bourne, for the plaintiff.

      Geo. W Zener, for the defendant.
   Barrett J. :

Hall’s creditors bad vested rights under tne trust deed of November, 1839, viz.: the right to the due execution of the trust for their benefit.

Of that right it is contended that they have been deprived by the act of 1875 (chap. 545), amending 1 Bevised Statutes, page 730, sectiou 67, so as to make it read as follows :

“ When the purposes for which an express trust shall have been created shall have ceased, the estate of the trustees shall also cease, and where an estate has been conveyed to trustees for the benefit of creditors, and no different limitation is contained in the instrument creating the trust, such trust shall be deemed discharged at the end of twenty-five years from the creation of the same; and the estate conveyed to trustee or trustees, and not granted or conveyed by him or them, shall revert to the grantor or grantors, his or their heirs or devisees,, or persons claiming under them, to the same effect as though such trust had not been created.”

It is well settled that a statute is not to be construed to operate retrospectively so as to take away a vested right, unless that intention is made manifest by express words. (Dash v. Van Kleeck, 7 Johns., 477; Sayre v. Wisner, 8 Wend., 661; Wood v. Oakley, 11 Paige, 400; Butler v. Palmer, 1 Hill, 324; Johnson v. Burrell, 2 id., 238; Sanford v. Bennett, 24 N. Y., 20.) Although the words arc so general and broad as in their literal sense to comprehend existing cases, they must yet be construed as applicable only to such as may thereafter arise, unless the intention to embrace all is plainly and unequivocally expressed. (Dueb, J., in Berley v. Bampacher, 5 Duer, 188.)

It was said by Savage, Ch. J., in Sayre v. Wisner (8 Wend., 661), that “ a statute never ought to have sucha construction as to divest a right previously acquired, if it be susceptible of any other, giving it a reasonable object and full operation without such a construction.” The court there held that the provisions of the Bevised Statutes, to the effect that “ a widow shall demand her dower within twenty years after the death of her husband,” although a statute of limitations were inapplicable where the husband died more than twenty years before the passage of the act; and for the reason that the right having thus vested, the statute would not be construed retrospectively to divest it.

Gillmore v. Shooter (2 Mod., 310) was cited and approved (as it had been in Dash v. Van Kleeck). That case was under the English statute of frauds, which enacted “that from and after the 24th day of June, 1677, no action shall he brought to charge any person upon any agreement made in consideration of marriage,” etc., “ unless such agreement be in writing,” etc.

Yet an action thereafter upon a parol promise, made prior to the act, was sustained, the court ruling that the statute was limited to agreements made after the 24th of June, 1677.

In Watkins v. Haight (18 Johns., 138), an act limiting the bringing of certain writs of error to five years from the day when the judgment was rendered was held not to be retrospective.

So as to a provision that • when “ any street shall have been open to and used as such by the public for the period of five years, the same shall thereby become a street,” etc. (McMannis v. Butler, 49 Barb., 181.) The case of Amsbry v. Hinds (48 N. Y., 61) is almost precisely in point. The clause there under consideration provided “ that all highways that have ceased to be traveled or used as such for six years shall cease to be highways for any purpose.” Yet the court held that this clause was not retroactive, Lott, Ch. C., saying: “ The words, ‘ have ceased to be traveled and used/ do not, necessarily, relate to the past. It may and should be construed as declaring that all highways that have ceased to be traveled or used for six years (after the passage of this act) shall cease to bo a highway for any purpose.” (And see cases there cited, Bailey v. Mayor, 7 Hill, 146; Bull v. Ketchum, 2 Denio, 188; People v. Supervisors, 43 N. Y., 130.)

We think it quite clear under these authorities, as well as upon principle, that the act of 1875 should be construed as operating not otherwise than prospectively, that is “ upon estates conveyed to trustees for the benefit of creditors ” — to repeat the language of Mr. Commissioner Lott, “ after the passage of the act”

If the act were intended to operate retroactively, then it is, in that respect, of doubtful constitutionality.

The instrument in question was in the nature of a contract. It was for the benefit of creditors, who were, at least, constructively, parties to it. “A conveyance,” said Denio, J., in Van Rensselaer v. Ball (19 N. Y., 105), “ I agree, is as fully within the constitutional provision as an executory contract; ” and see Varick’s Ex’rs v. Briggs (22 Wend., 543), where the court of errors held that “'deeds, valid and perfect at the time of their execution * * * are a complete and valid executed contract.” The recording act, said VerelaNCK, senator, declaring “ that such valid contracts shall be adjudged fraudulent and void as against certain persons, unless a further legal sanction be added, must be in direct hostility to the very words of the constitutional inhibition. The contracts themselves are impaired by being adjudged void.”'

It may be questionable, also, whether the creditors’ “property ” is not thus taken without due process of law. A wide and liberal interpretation, in the interests of the citizen, has been given to the word “ property ” in its constitutional connection. Thus, both vested and contingent remainders have been treated as such. (Powers v. Bergen, 2 Seld., 358.) So as to a franchise, e. g., the right to maintain a toll-bridge. (The Matter of Hamilton Avenue, 14 Barb., 405.) Even a right of action for injuries to land proposed to be taken for a public purpose has been treated as property within the meaning of the public use branch of the section. (Morris Canal and Banking Co. v. Townsend, 24 Barb., 658.) A legacy to the wife which vests in the husband at common law is his property, within the “due process” branch. (Westervelt v. Gregg, 2 Kern., 211.)

There SeldeN, J., says : “An immediate right of action for the recovery of money which when recovered is to belong to the party" in whom the right of action exists, subject to be defeated only by the contingency that a person in being may die before judgment can be obtained, is a valuable pecuniary interest which deserves protection equally with rights which are absolute and unconditional.”

It may be that the vested rights of these creditors are not “property,” within the principle of these cases. That question need not now be determined. It is enough to show that upon the whole case presented the title is not free from suspicion, but is, to say the least, doubtful. (1 Sugden on Y. and P., 505-512 [Lord’s 11th ed.j; Curtis v. Hitchcock, 10 Paige, 399; see also, Jordan v. Poillon, Court of Appeals, opin. of Miller, reported in Daily Register of December 17, 1879; Seymour v. De Lancey, Hopk., 486.)

Nor should the defendant be required without evidence to accept the risk of sustaining a plea of the statute of limitations. Non constat, but some of these creditors may be able, by extrinsic facts of which he knows nothing, to take their cases out of the statute. A single suggestion, in conclusion, may not be out of place. It is difficult to perceive how this title can be entirely quieted save by the appointment of new trustees authorized to file a bill against the creditors, or their legal representatives and all other persons interested, for a final settlement and winding up of the trust. The creditors are not now before the court and would not, of course, be bound by any judgment we might make. (See Jordan v. Poillon, ubi supra.)

In such an action as is suggested they or their legal representatives could be proceeded against _ by personal service if resident, or by due publication if non-resident, and a judgment barring their claims and closing the trust would, in case of their nonappearance or failure to establish any right or interest, practically dispose of the present difficulties.

There must, however, be judgment on the case now before us for the defendant, but, under the circumstances, without costs.

Davis, P. J.:

I concur on the two grounds firstly and secondly discussed in the opinion of Barrett, J.

Brady, J.:

I concur in the result.

Judgment ordered for the defendant, without costs.


source: Caselaw Access Project

author: Brady, P. J. ;

license: Public Domain

text:
    In the Matter of the Petition of FRANK R. HOUGHTON and Another to Vacate an Assessment, Etc.

      Contract for constructing sewer — when the contractor must pay the damages occasioned to gas-pipes.

    Appeal by tbe petitioners from an order made at Special Term denying the prayer of the petition to vacate an assessment.
    The court, at General Term, said : “On this appeal but one objection to the validity of the assessment is urged, and that is, that there is included in it the sum of $4,334, for certain damage to the pipes or mams of the Harlem Gas Light Company, and the objection rests upon the following provision in the contract for the construction of the sewer :
    “ ‘All loss or damage arising out of the nature of the work to be done under this agreement, or from any unforeseen or unusual obstruction or difficulties which may be encountered in the prosecution of the same, or from the action of the elements, shall be sustained by the contractor aforesaid.’
    “ This covenant, as a matter of construction, necessarily imposes upon the contractor the payment of any damage to the pipes or mains done by the work or resulting from it, because their existence could have been ascertained, and, it must be presumed from the nature of the covenant, was understood and regarded as an obstacle arising out of the nature of the work, and by which loss or damage might arise. Indeed, the agreement extends further, because it covers unforeseen or unusual obstructions or difficulties which might be encountered in the prosecution of the work to be done under the contract. The allowance complained of must have arisen from the damage done in the construction of the sewer, and was at variance with the plain terms of the contract by which such damage was to be borne by the contractor. The view taken of the contract by the learned counsel for the corporation is erroneous. He seems to think that the contractor bound himself to do no more than to be responsible for all loss or damage which he might do, and to make no claim against the city for loss or damage which he might sustain by the unforeseen and unusual difficulty of the work. This is not, as suggested, a correct view of the obligation assumed. The city makes the contract with reference to existing things and unforeseen difficulties, and not only covers the charge for extra work which might be presented by the contractor arising from them, but also claims which might, by his performance of the work, be made upon it for damage doné. He has, as suggested, the opportunity to learn of the existing things, such as pipes or mains for gas, on the line of the improvement, and to protect himself against unforeseen difficulties by demanding in limine sufficient indemnity. For these reasons it appears that the allowance objected to should not have been included in the assessment.”

      Irving Ward, for the appellants. J. A. Beall, for the.respondent, the city of New York.
   Opinion by

Brady, P. J. ;

Ingalls and DANIELS, JJ., concurred.

Order reversed.


author: Davis, P. J.,

text:
    SIMON STERNE, Respondent, v. CHARLES GOEP as Administrator, Etc., of MAX GOEP, Deceased, Appellant.

      Dissolution of a firm of lavyyers, by the death of one of them— duty of the survivor as to ean'ying on pending litigations, without charge, for the benefit of the estate of the deceased.

    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.
    The plaintiff and the defendant’s' intestate were partners in the practice of the law, both being attorneys and counselors- at law. There were no written articles of partnership between them, but a general oral agreement for an equality of interest in the business to be transacted by them. The partnership was terminated by the death of defendant’s intestate. A number of suits w§re at the time of his death pending and undetermined, in which the firm had been employed and which they wore prosecuting or defending as attorneys and counselors.
    This action was brought to compel the specific performance of a written agreement by which, in consideration of a sum named, the defendant agreed to relieve the plaintiff from all claims of the estate growing out of said partnership.
    The court, at General Term, said: “In commercial partnerships there is little difficulty in determining the rights of a surviving partner and of the representatives of a deceased partner, where the partnership is terminated by death. The survivor takes the assets of the firm, and is entitled to dispose of them by sale, and collect all outstanding debts and apply the proceeds to the payment of the debts of the firm, and he must account for- the surplus to and with the representatives of the deceased partner; but he is entitled to no compensation for services as against the estate of such deceased partner, unless the same be stipulated for in the articles of co-partnership. He is not, however, bound to continue and carry on the business of the firm, devoting his personal services thereto for the benefit of his deceased partner’s estate. His obligations are rather to close up and terminate the business in the most convenient practicable mode, with due regard to the rights and interests of creditors, and of his deceased partner’s estate as well as of himself.
    “ Whether the same rules apply to a partnership between lawyers, where the profits of the firm are the product solely of professional skill and labor need not now be discussed. It would seem, however, to be a harsh rule which would require the surviving partner of a law firm to take upon himself, solely, the conduct of all pending litigations in the office at the time of his partner’s decease, and devote his professional skill and labor through a possible period of years to the conducting and closing up of such litigations, for the benefit equally of the estate of his deceased partner, and with the obligation ultimately to account to his representatives for an equal share of all the profits or results so earned. It would seem that equity might discern some juster rule' by which to ascertain and determine the rights of the parties in such a case.

      “ But whatever may be the strict legal rights of the survivor, and the representative in such a partnership, it is clearly manifest that the case is- one eminently proper for any just and fair agreement between the survivor and the representative which shall ascertain and settle their respective rights.
    The question in this case before the learned referee was whether such an agreement was made, in such form and manner, and under such circumstances, that a court of equity could recognize and enforce it. We concur with him that the proof in the case satisfactorily established that a fair and reasonable agreement was made, and that the administrator received the full consideration of such agreement according to its substantial requirements, and that he was not at liberty to repudiate and abandon it without clear evidence establishing fraud or bad faith on the part of the surviving partner.

      W. T. B. MiUIcen, for the appellant. Wm. H. Scott, for the respondent.
   Opinion by

Davis, P. J.,

Beady and Baeeett, JJ., concurred.

Judgment affirmed, with costs.


author: Davis., P. J. ;

text:
    FREDERICK HUMPHREYS, Appellant, v. FRANCIS W. HURTT, Respondent.

      Written contract — action to reform — what must he shown to maintain such action.

    Appeal from a judgment in favor of the defendant, entered upon tbe report of James W. Girard, Esq., sole referee.
    The action was brought to reform and correct a written agreement, entered into between the plaintiff and the defendant, and for certain other relief incidental thereto.
    The court, at General Term, said : “ This case required and has received a very careful examination of extremely voluminous and conflicting evidence. Our disposition of tbe case depends upon questions of fact. There can be no doubt that the learned referee made a proper application of the law to the facts as found by him, assuming them to be correct. It will be difficult to find in any of the books a summary of the law of such cases expressed with the same admirable clearness and brevity as that given in the opinion of the learned referee.
    “He says : 1 The following principles are to be gathered from the decisions of our tribunals as controlling such actions :
    “ ‘ First. That where pai’ties have entered into a written contract it must be presumed iii law to express their common intention, and to speak their actual agreement.
    “ ‘ Second. That if such contract is alleged not to express the real intent of the parties, and that fact is shown by sufficient evidence, a court of equity can correct the alleged mistake in favor of the party prejudiced.
    “ ‘ Third. That the proof required to correct such mistake must be clear and unequivocal.
    “ ‘ Fourth. That, as a general rule, the mistake which will afford ground for the reformation of an express contract must be of a mutual charactei\ In other words, the mistake must be reciprocal and common to both parties.
    “ ‘ Fifth. That if one party, hr the execution of a contract, has delivered or received papers in supposed furtherance of it, but with knowledge of a mistake made in his favor, which he conceals, then equity will give relief to the other party if the mistake is clearly shown, although it be not mutual. The case comes under the head of constructive fraud on the part of one party, and of a mistake or error on the part of the other. Under this class are more especially placed those cases where the party committing the fraud has himself so drawn, or caused to be drawn, the agreement as to mislead the other.

      “ ‘ Sixth. That if the mistake has not been mutual, but made inadvertently on one side, and yet in good faith by the other, if any amendment or reformation of the contract can, under any circumstances, be made, it cannot be made so as to make the agreement conform merely to the views of the party applying, but only to the original views of both parties. In this latter case there may be a rescission on the ground that the parties’ minds never met, but there can be no reformation or change of the contract, maiding it substantially a new one.’ ”
    “ This summary is sustained, not only by the best elementary writers, but also by the following among other numerous authorities. (Moran v. McLarty, 11 Hun, 66; affirmed, 75 N. -Y., 25; Jackson v. Andrews, 59 N. Y., 244; Bryce v. Lorillard Fire Ins. do., 55 id., 240; Welles v. Yates, 44 id., 525; JSTevius v. Dunlap, S3 id., 676; Rider v. Rowell, 28 id., 310; Bottsford v. McLean, .45 Barb., 478; Ilentv. Manchester, 29 id., 597; Pennell v. Wilson, 2 Abb. Pr. R. [N. S.], 466, 469; Gillespie v. Moon, 2 Johns. Ch., 585; Lyman v. IT. 8. Ins. Go., 17 Johns., 373; McHugh v. Imperial Fire Ins. Co., 48 How. Pr. R., 230; Hearne v. Marine Ins. Co., 20 Wall., 488, 490; Beaumont v. Bramley, 1 Turn. & Russ., 41; Humphreys v. Hurtt, 5 N. Y. S. C. [T. & C.], 433; Fowler v. Fowler, 4 De Gex & Jones, 255; Sells v. Sells-, 1 Drewry & Smale’s, 42; Kerr on Fraud and Mistake, 396 et seq.; Whit-temore v. Farrington, 76 N. Y., 452.)”

      A. J. Todd, for the appellant. Coles Morris and Michael H Cardozo, for the respondent.
   Opinion by

Davis., P. J. ;

Barrett, J., concurred.

Present — Davis, P. J., and Barrett, J.

Judgment affirmed, with costs.


author: Brady, J.;

text:
    ELIZA JANE WALKER, Respondent, v. JOSEPH WALKER, Appellant.

      Failure of the defendant to pay alimony, as ordered by the court — power of the oow-t to strike out his answer— order to show cause may be served on the attorney.

    Appeal from two orders of the Special Term, one striking out the defendant’s answer, and the other referring the case to a referee to take proof of the material facts alleged in the conxolaint, and to report the same to the court.

      An order was made in this case directing the payment of a sum of money for alimony and counsel fees, and, after it was entered, it was alleged that, for the purpose of avoiding a compliance with it, the defendant removed from this State, and became a resident of the State of Massachusetts, where he continuously remained, having failed to make payment of the sums directed to be paid, and no collection of them having been accomplished even by a precept issued for that purpose.
    Application was therefore made for an order to show cause that he be compelled to pay the same; or, in default, that his answer be stricken out, and the case proceed a* if no answer had been put in. The order contained a provision that the service of it on the defendant’s attorney should be sufficient.
    The result of that proceeding was an order directing the payment of the sums mentioned, in five days after service of it upon the defendant’s attorney ; or, in default thereof, that the answer be stricken out, and the case proceed as if no answer had been put in.
    That order was not complied with, and the plaintiff made an application, on an order to show cause, for a reference to take proof of the material facts alleged in the complaint, and the order contained the provision that the service of it upon the defendant’s attorney should be deemed sufficient. The result was an order of reference in compliance with the application made.
    The court, at General Term, said: “Mr. Justice Barrett, on granting the order directing the payment of the alimony within five days, expressed the opinion that the case was an aggravated one, and fell within the spirit, as well as the letter, of Farnham v. Farnham (9 How., 231), and very justly. That case and the present one bear striking analogies.
    ‘ ‘ The appellant’s counsel questions the power of the court to make either of these orders, but his position, in that respect, cannot be maintained. There can be no doubt of the power of the court to do precisely what was done in this case, both in regard to the answer and to the reference. The following authorities establish this proposition : (Farnham v. Farnham, supra ; Brinkley v. Brinkley, 47 N. Y., 40; Bice v. Fhele, 55 id., 519.) The service of the papers upon the attorney, and not upon the party, was regular. (Fill v. Davison, 37 N. Y., 235.)

      Geo. W. McAdams and. Daniel T. Robertson, for the appellant. John B. Perry, for the respondent.
   Opinion by

Brady, J.;

Davis, P. J., concurred.

Present — Davis, P. J., and Brady, J.

Orders affirmed, with ten dollars costs and disbursements.


author: Potter, J.;

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN FARRELL, Appellant, v. THE BOARD OF POLICE OF THE POLICE DEPARTMENT OF THE CITY OF NEW YORK, Respondents.

      Board of police of New York — trial before, of policeman fot' violation of rules — right to have evidence taken before one coinmissionei'.

    . Appeal from an order made at Special Term, denying a motion to review the proceedings of the board of police on then’ return ■to a certiorari, and for a mandamus to restore the relator to his position on the force.
    The relator sued out a writ of certiorari to review the proceedings of the respondents in removing him from the police force.
    The charge against the relator was a violation of the rules of discipline adopted by the board of police pursuant to section 41 of chapter 335 of the Laws of 1873, in l’elation to the city of New York.
    The court, at General Term, said : “The question argued, and the one intended to be reviewed by the appeal, was whether the evidence upon the charge against the relator may be taken by a stenographer, in the presence and under the direction of one commissioner, and be submitted to and form the basis of the judgment of the board of commissioners.
    ■ “ The return to the writ of certiorari fails to show that the proceedings present that question. On the contrary, it appears from the record of the proceedings and convictions that the trial was had before the board of police commissioners at a legal meeting for that purpose, and that such board heard the proof and allegations in support of the charge in presence of the relator and found him guilty of the charge, and ordered and adjudged bis removal from, the police force. The record further shows the names of the commissioners present, and their notes upon the question of the relator’s guilt.
    “ With such a record of the proceedings and judgment against the relator as the papers upon this appeal present, we do not well see how the question discussed is before the court.
    “ Under the circumstances, whatever the court might hold in relation to the question discussed would be outside of the case and obiter.
    “ If the question could be raised upon the papers before us, or it was proper to rule upon the question, we think that the taking of testimony by a stenographer, and the examination of witnesses upon a charge of a violation of a mere rule of discipline by one commissioner in the presence of the person charged with such offence, and the subsequent submission of the evidence so taken by the stenographer to the board, and in the presence of the person charged, and with an opportunity given to him to be heard in relation to the charge and the evidence, would be regular and authorize a judgment thereupon by the board of commissioners.
    “We do not think the provisions (section 6 of article 1) of the constitution, nor the case holding that the judge of a criminal court rendering the judgment must hear the case, have any application to the proceedings and judgment in proceedings against members of the police force, for violation of the rules for the discipline of the force.
    “ The offence charged was not a violation of a law of the State, or such as is or can be tried in a court of justice.
    “ It was a mere rule for the government and discipline of the police force. The power to adopt such rules was conferred by section 41 of chapter 335 of the Laws of 1873, to regulate the conduct of the members of the force while acting as policemen. The same section also provides that the board may prescribe the manner, time and place of hearing complaints for a violation of the rules of discipline.
    “ The power to remove a policeman from office upon a conviction of a breach of discipline is given by section 55 of the same chapter.

      “The proceedings,' trial and judgment were authorized by the sections of the statute referred to, aud were in compliance with the rules adopted by the board for the conduct of such trials.”

      Roger M. Sherman aud Louis F. Post, for the relator. William O. Whitney and D. J. Lean, for the respondents.
   Opinion by

Potter, J.;

Davis, P. J., concurred.

Present — Davis, P. J., and Potter, J.

Order affirmed, with costs.


text:
    ANDREW HARRISON AND EDMUND TERRY as Administrators de bonis non of EDWARD HARRISON, Deceased, Appellants, v. JOHN CLARKE AND THOMAS BENNETT, Respondents.

      Action against the surety to an administrator's bond, — what irregulañties in the form of the sumgate’s decree against an absconding ad/ministrator, not p&'son-ally se/’ved, are not available as a defence to the sweties.

    Appear from a judgment in favor of the defendants dismissing the plaintiffs’ complaint.
    In August, 1870, one Ralph Dawson was appointed by the surrogate of the county of New T ork administrator, with the will annexed of Edward Harrison, deceased, and letters were issued to him. The defendants became his sureties.
    In February, 1878, Andrew Harrison, one of the legatees, filed his petition with the surrogate, asking for a revocation of such letters, and that the administrator be required to account. Thereupon the surrogate issued a citation requiring Dawson to show cause on the 4th of March, 1878, why he should not be superseded as such administrator.
    The citation was served, by leaving a copy at the place of residence of Dawson, in Kings county, the person who served it having been then and there advised that he was in the west, but where was not disclosed. On the return day there was no appearance by or for the administrator, and upon the proof of such service and that only, except what was stated in the petition, an order was made superseding Dawson as administrator and revoking his letters.
    In May following, the surrogate issued letters of administration with the will annexed, upon the estate of the deceased to the plaintiffs. The plaintiffs then, as such administrators, filed a petition asking for a citation requiring Dawson to appear and account for his proceedings as administrator, and on the 9th of July, 1878, an order was made referring it to R. F. Farrell, Esq., to take and state an account. The citation was served by leaving it at the house of Dawson. The result of that proceeding was a decree entered on the 16th of July, 1878, confirming the. report of the referee, and adjudging that Dawson had in his hands, belonging to the estate, $4,133.57, and directing that he pay the same to the plaintiffs.
    In the petition for the removal of Dawson, it was alleged that he had not invested the legacy given to the petitioner as required by law, but used the same in his business, paying interest thereon to the petitioners, at the rate of six per cent per annum, until about October, 1877, at which time he failed in business and became wholly insolvent, without, as the petitioner was informed, in any way securing the sum in his hands in trust; and also that since his failure he had left the State, although his family remained at No. 500 Willoughby avenue, in Brooklyn, his residence up to the time of his leaving the State.
    The petition further alleges that the petitioner, although he had made diligent inquiry, could not ascertain the whereabouts of Dawson, but was informed that he was in one of the western States. It also alleges that the petitioner believed the trust fund to be in danger of total loss unless promptly secured. The order revoking the letters of administration .stated, as a cause for the revocation, that it appeared by the petition and the affidavit of H. A. Heath, that the administrator had absconded from the State. After the issues had been joined in this -case, and on the 9th of December, 1878, on the application therefor, the order of revocation was amended nunc pro tunc, by adding that the administrator had become incompetent by law to act as such, by reason of improvidence.

      Tliese facts having received due consideration, it was held at the Special Term that the original order of revocation was defective, because it stated the removal to be the result of the administrators’ absconding from the State, and the complaint was dismissed.
    The court, at General Term, said: “It seems to have been conceded on the trial that the order was in this respect defective, and it would seem to have been so regarded by the surrogate himself, because of the amendment which was accomplished by the order nunc pro tunc.

    “ The defendants are sureties and entitled to protection unless it appears that the.proceedings against Dawson were in all respects authorized by statute, which alone confers power upon the surrogate over the administrators appointed by him. They are not parties to the proceedings affecting him, and therefore had no right to appeal from the decision of the surrogate, which could only have been taken by Dawson or some one on his behalf.
    “ The learned judge presiding at the court below placed his decision upon the insufficiency of the order of revocation, and not upon the insufficiency of the petition or proofs of which it was predicated, although the record of the proceedings itself was in evidence. He seemed to have thought that, inasmuch as the surrogate had no power by statute to remove an administrator because he had absconded from the State, the order of revocation was a nullity.
    “ This view is deemed to have been erroneous because the defect was a mere matter of form, the substance of the order in fact being the petition and the affidavit of Mr. Heath, which papers united established a case of improvidence on the part of the administrator, and the truth of the allegation that he was ■ guilty of it, namely, the receipt of the legacy, the non-investment of it as required by law, the use of it in his business, his failure, and his departure from the State, and the impossibility, although due diligence was used, to ascertain. where he resided. The surrogate had undoubtedly, on these facts under the statutes (Laws of 1837, chap. 460, § 34), the right to remove, for the petition, and proof given, conferred upon him jurisdiction. The service at his residence under the circumstances was clearly sufficient; he had ñed and it could not be ascertained whither he had gone. It is not understood why the surrogate could not at any time have conformed the order to the proof before him.
    “ Whether the defendants should be relieved under such circumstances would seem to be only a question of costs ; but inasmuch as the whole matter was under the jurisdiction and within the discretion of the surrogate, and inasmuch as the order that he made was one eminently proper, the defendants cannot take advantage of that and relieve themselves from liability in consequence of it. His jurisdiction was absolute, the proceedings were regular, and it was his duty to make them effective.”

      J2, Terry, for the appellants. Geo. JE. Horne, for the respondent Clarke. Townsend & Mahan, for the respondent Bennett.
   Opinion by

Brady, J.;

Davis, P. J., and iNGAixs, J., concurred.

Judgment reversed, new trial ordered, costs to abide event.


author: Bockes, J. :

text:
    CALVIN WEST, Respondent, v. THE FIRST NATIONAL BANK OF ELMIRA, Appellant.

      Deposit of money with a bank — right of a depositor to assume that the certificate given to him therefor is that of the bank and, not that of an individual — when the bank is estopped, from, denying its lidoility on the certificate — Evidence — as to intent of depositor — as to knowledge of bank officei-s.

    The defendant was a national bank doing’ business at Elmira. It was in the habit of receiving money on deposit and of issuing certificates therefor to the depositor; in some cases the certificates were issued in the name of the bank, in other cases the money was placed to the credit of its president, Yan Cam-pen, and the certificates purported to be issued by him individually, this course of business being known to, and permitted by the officers of the bank.
    February 21, 1S67, the plaintiff deposited money with the teller of the bank over its counter, and received a certificate of deposit therefor, purporting to be issued by Yan Campen, individually; the plaintiff had previously made deposits with the bank under similar circumstances and had received similar certificates, which had been paid on demand at the counter of the bank by its employees. He made the deposit on the credit of the bank, and accepted the certificate as an evidence of the deposit, under the honest belief that it was the obligation of the bank; Yan Campen was not present at the time the deposit was made, nor was his name then mentioned; the plaintiff only knew him as the president of the bank The plaintiff brought an action against the bank to recover the amount so deposited.

      Held, that he was entitled, under the circumstances, to believe that the certificate so delivered to him was the obligation of the bank, and that the latter was estopped from denying its liability thereon.

      Upon the trial the plaintiff was allowed, against the defendant’s objection and exception, to testify that he supposed and believed the certificate, when he received it, to be that of the bank; and that if he had known it was the certificate of Yan Campen he would not have accepted it.

      Held, that the evidence was properly admitted.
    Upon the trial one of the directors was allowed to state that he was aware of the fact that Van Campen’s certificates were issued for money deposited at the bank.

      Held, that the evidence was properly received, for the purpose of showing that the officers of the bank had knowledge of the course of business adopted by their employees in conducting business over the counter of the bank.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon a case and exceptions.
    This action was brought by the plaintiff to recover the sum of $500, alleged to have been deposited by him with the defendant, a national bank, at its banking-house, in Elmira, on the 21st day of February, 1867.
    At the time the deposit was made, the following certificate was given to the depositor :
    “ No. 2,200.
    “ Office of S. E. VaN CampeN, )
    “ Elmira, N. Y., /September 21, 1867. )
    “L. L. Aber has deposited in this office five hundred dollars, payable to his order, with interest at five per cent if left six months, and- four per cent if left thirty days, on the return of this certificate — $500.
    “ S. E. YAN CAMPEN.”
    Yan Campen was the president of the bank. It appeared that the defendant was in the habit of receiving deposits of money and issuing certificates therefor, and that, in some cases, such certificates purported to be issued by the bank itself, arid in others by Yan Campen individually. • In the latter cases the deposits were credited to Yan Campen's individual account. Yan Campen having become insolvent, the bank refused to redeem the certificates signed by him individually.
    The plaintiff claimed, that when he made the deposit he had the certificate made to the order of L. L. Aber, his step-son, intending to give it to him, but that be subsequently changed bis mind and bad the said Aber indorse the said certificate and all bis interest therein to him.

      John Murdoch, for the appellant.

      John T. Davidson, for the respondent.
   Bockes, J. :

It is insisted, in the first place, that the verdict of the jury to the effect that the deposit in question was made by the plaintiff is unsupported by the evidence. On this issue much proof was submitted, and a very strong case was made favorable to the defence. But the plaintiff testified distinctly and positively, and indeed circumstantially, as to the occurrence, and that he made the deposit himself, and with his own money. In this he was corroborated to some extent; although the supporting proof was not very convincing or decisive in' character ; at least this is so as it appears to us on a reading of the' printed case. We cannot say, however, that the verdict is absolutely against the evidence, for the jury had the right to believe the plaintiff’s positive statement, with the slight proof given in its corroboration against even the strong case made for the defence. It would doubtless have been improper to have taken the case from the jury as it stood at the close of the trial. So it would be now improper, on the appeal, to hold that the verdict is certainly and absolutely against the truth ; or that it is so manifestly against the weight of evidence as to demand that it should be set aside for that reason. As above suggested, the jury had a right to believe the plaintiff, and it does not lie with the court, on appeal, to hold that he did not state the truth, in the absence of positive proof of his untruthfulness. There are many cases holding to the rule that, although the court might be inclined to differ with the jury in their conclusion upon a question of fact, still if a case be made for their determination, so that they have the right to find one way or the other accordingly as they should believe or construe the evidence, their verdict must be respected. This case must be deemed to be with the plaintiff on this question of fact. Therefore the fact must stand as found by the jury, that the deposit was made by the plaintiff.

It may be well here to see to what extent the questions involved in this case were determined by the decision in Coleman’s Case, which was an action against the defendant heroin, based on very much the same state of facts as are proved to have existed in this case. (53 N. Y., 390.) In that case the deposit was made under similar circumstances as in this ; and a certificate was given by the teller of the bank to the depositor, as is this case, signed by Yan Campen. It was laid down by the court in that case, that irrespective of the certificate the liability of the bank was clear ; that having received the plaintiff's money as a deposit, with no information to him that it ivas for Yan Campon personally, the bank became bound upon a simple contract to pay it upon demand; that, notwithstanding the giving of the certificate in the name of Yan Campen individually, and not as an officer of the bank, yet it was competent to show by parol proof that the bank, and not Yan Campen, was the depositary; and, further, that if the latter fact was found for the plaintiff on the proof, the plaintiff established his right of action. It was made also a question of fact in that case, as it was in this, whether the plaintiff believed and had a right to believe, under the circumstances attending the deposit, that he was dealing with the bank, and not with Yan Campen individually. In both cases the jury found for the plaintiff upon this question. It is here urged that the plaintiff should be concluded by his acceptance of Yan Campen's certificate, because, as is claimed, that was itself on its face notice to him that Yan Campen, and not the bank, was the depositary, and we are cited to a class of cases which hold that a party signing a paper will not be heard to deny knowledge of its contents in the absence of fraud or mistake. (Germania Ins. Co. v. R. R. Co., 72 N. Y., 91-93; Hill v. R. R. Co., 73 id., 351; Upton v. Tribilcock, 91 U. S. [1 Otto], 50.) This question was also in Coleman’s Case, and the point was ruled against the defendant, a distinction being noted between the cases cited and this in hand. It was there said, per ANdbews, J., after making the distinction alluded to : “If the plaintiff had examined the certificate he would have been apprised of the fact that it purported to be the individual obligation of Van Campen. But be did not do so. He bad a right to suppose that it was tbe proper acknowledgment of tbe bank with wbicb tbe money was deposited. The doctrine of constructive notice from the possession of the certificate would he misapplied if in this case it should he held to exempt the bank from liability.” In Coleman’s Case, it is true, tbe plaintiff could not read or write except bis own name, but tbe principle or ground of decision, given us in tbe language above quoted, is to tbe effect tliat sucb circumstance was not controlling. ' Tbe rule laid down was, that even if tbe party in this case had been apprised of tbe fact that tbe certificate purported to be the individual obligation of Van Campen, still tbe former would be at liberty to prove that tbe deposit was in truth and in fact made with tbe bank, and upon tbe faith of its responsibility. Wo need not bore repeat tbe reasoning of tbe learned judge wbicb led to this conclusion. So, then, we must accept of that decision, and give it application here, to wit: that tbe plaintiff was not bound, by his acceptance of tbe certificate, to knowledge or notice that tbe deposit was taken and accepted for Van Campen, and not by and for tbe bank. Whether be bad sucb knowledge or notice was an open question to be determined by tbe jury on tbe proof submitted. (See remarks of ANdrews, J., on page 392.) Tbe verdict of the jury here is against tbe defendant on this question, as it was in Coleman's Case. Thus it is seen that very many of tbe questions in this case are disposed of by the decision in Coleman’s Case. But one of importance here was left undisposed of in that case. The closing paragraph of tbe opinion in Coleman’s Case is as follows: “ These views dispose of tbe case, and render it unnecessary to consider whether tbe certificate issued to tbe plaintiff may not be treated as tbe obligation of tbe bank ; and whether tbe bank is not precluded as against tbe plaintiff from denying it.” This question will now be considered, and if found in tbe plaintiff’s favor sucb conclusion will go far towards a final disposition of this appeal.

Tbe case was not given to tbe jury to find directly on this question of estoppel; but did not tbe facts found by tbe jury, with those not disputed, operate in law to estop the defendant from denying that the certificate delivered to the plaintiff by the bank was its own obligation ? Giving due effect to the verdict, and it stands proved that the plaintiff himself made the deposit; that it was made over the counter of the bank in the usual course of bank business ; that the transaction was between the plaintiff and the teller of the bank, and was a deposit with the bank and not with Yan Campen ; that the taking of money on deposit was a part of the ordinary business of the bank ; that Yan Campen was not present at the time of making the deposit, nor was his name then mentioned ; that the plaintiff only knew him as the president of the bank ; that he was handed the certificate as an evidence of the deposit; that he had previously made deposits with the bank . under similar circumstances, and had received similar certificates which had been paid on demand at the counter of the bank by the teller or bank employees, and that he made the deposit on the credit of the bank and accepted the certificate under the honest belief that it was the obligation of the bank. This practice and course of business was known to the officers of the bank, and was authorized, or at least was permitted, without' calling the attention of its customers to its peculiarity as between the bank and its president, Yan Campen. Now had not the plaintiff under these circumstances the right to believe that the certificate so delivered to him was the obligation of the bank ? If the bank permitted him to deal with it on the faith of its responsibility, and gave him an obligation which he accepted as that of the bank, and which, from the conduct and action of the bank, he had a right to believe was the obligation of the bank, should it not be precluded as against the plaintiff from denying that the paper was other than what it had in effect asserted it to be ? Here, as it seems, there existed all the elements of an estoppel in pais. The plaintiff was allowed to deal with the bank under circumstances amounting to an assurance, on its part, that such dealings were with it and not with another, and the latter gave him a paper on assurances calculated to induce the belief on his part that it was its obligation. He accepted the paper on the faith of such assurances. This should, and in law, does preclude the bank from disputing the just and fair results of its action, if to the injury of the party dealing with it on the faith of such action. The doctrine of estoppel in pais rests upon equity, good conscience, and honest de'aling. Give application here to this doctrine, and the bank must be held to its representations and assurances that the certificate was its own. It cannot be permitted to deny this, otherwise sanction would be given to the perpetration of a fraud upon a person dealing with it in good faith. (Mad. Av. B. Church v. Oliver Street B. Church, 73 N. Y., 90; Bisselly v. R. Co., 22 N.Y., 258, 279.) We are of the opinion that the defendant must be held to be estopped from denying that the certificate was other than its own obligation.

A few questions yet remaim to be considered. It is urged that the plaintiff was improperly allowed to testify that he supposed and believed the certificate to be that of the bank when he received it; and that if he had known it was the certificate of Yan Campen he would not have accepted it. This evidence was competent; as his belief in that regard was a fact on which the decision of the case was made to turn. It was a fact, not a matter of mere opinion. In this respect it was like a question of intent in the case of an attack upon an assignment for fraud, alleged to have been made with intent to hinder, delay and defraud creditors. The rule applicable to evidence of this character is laid down in Dillon v. Anderson (43 N. Y., 236), where it is said, per Folgek, J., “ that where the doing of the act is not disputed, but is affirmed, and whether the act shall be held valid or invalid hangs upon the intent with which it was done, which intent from its nature would be formed and held without avowal, there he upon whom the intent is charged may testify whether he secretly held such intent when he did the act.” The case steers clear of the decision in Cowdrey v. Coil (44 N. Y., 382), and in Nichols v. Ore Co. (56 id., 618); and falls within the rule laid down in Dillon v. Andrews (supra), and in Cortland County v. Herkimer County (44 N. Y., 22); also in Sweet v. Tuttle (14 id., 465). This evidence was properly admitted.

It is next urged that the evidence given by Mrs. Burt, to the effect, that she believed her certificate to have been that of the bank, was improperly admitted. It is difficult to see how this evidence could have operated to the injury of the defendant. It bore upon no issue in the case, was remote and wholly irrelevant and immaterial, so much so as to be manifestly innoxious.

Nor was it error to allow Blossom, the teller, who acted under the direction of the officers of the bank, to state that the certificate would not have been taken or paid by the bank affer Yan Campen’s failure, had it been presented. This evidence bore upon the question whether the bank had been injured by the plaintiff’s delay in presenting it for payment, a question supposed by the defence to be important. It may be here remarked that if the conclusion above reached be sound, to wit: that the certificate must, on an application of the law of estoppel, be held to be the obligation of the bank, the question of delay in the presentation of the certificate for payment is out of the case.

Nor was it erroneous to permit Gilbert, a director of the bank, to state that he was awaro of the fact that Yan Campen’s certificates were issued for money deposited at the bank. This evidence was admissible to show that the bank officers, or that Gilbert as one of them, had knowledge of the course of business adopted by their employees in conducting the business over the counter of the bank.

Yarious exceptions were taken to the charge of the judge, and to his refusals to charge as requested. Five points relating to his refusal to charge are on this appeal urged upon our consideration. The first two, have reference to questions of the plaintiff’s ability to learn, and his diligence in learning, whether the deposit was with Yan Campen or with the bank, and the remaining three relate to the plaintiff’s negligence in omitting to present the certificate or in giving notice to the bank of his claim upon it. The case was well submitted to the jury, as we think, on these points. We discover no error in the manner in which the case was submitted to the jury, calling for a reversal of the judgment.

Judgment and order appealed from should be affirmed, with costs.

LEARNED, P. J., and BoardmaN, J., concurred.

Judgment and order affirmed, with costs.


author: Bockes, J.:

text:
    WILLIAM T. HALLENBECK, Respondent, v. FRANCIS COCHRAN, Appellant.

      Statute of frauds — what is not a sufficient delivery and acceptance to malee valid an oral contract of sale — When a subsequent part payment will not malte valid the prior oral contract.

    The plaintiff and defendant being- together, near to two stacks of hay belonging to the former, and in sight of one of such stacks, entered into an oral contract for the sale of the hay, defendant agreeing to pay to the plaintiff §190 therefor and §10 more if he should do well with it. The plaintiff then said “ the hay is yours,” and the defendant said “ yes.”

      Held, that there was no delivery or acceptance of the hay sufficient to take the cáse out of the statute of frauds.
    Subsequently the plaintiff called on the defendant for payment on “that hay,” and the latter promised to see one Bush to obtain money with which to make such payment. The next day the defendant came along the road with his team, beckoned the plaintiff to come to him, and handed him §25, saying that he had not seen Bush, but had sent word to him and learned that he was not at home; that if hay did not do better than it was then doing he should have a pretty tough bargain. Nothing further was said as to the previous bargain.

      Held, that the payment was not made at the time of entering into the contract as required by the statute, and did not render valid the prior oral agreement.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was brought to recover a balance alleged to be due to the plaintiff for certain hay sold by him to the defendant. After a part of the price had been paid, the hay was destroyed by fire, while still standing upon the plaintiff’s farm and before any of it had been taken away by the defendant.
    The defence was that the contract was void as within the statute of frauds.

      jR. E. Andrews, for the appellant.

      jRufus H. King, for the respondent.
   Bockes, J.:

The only questions presented on this appeal arise under the statute of frauds. They are these : (1.) Whether the hay bargained for, or any part of it, was in fact delivered; and (2) whether, if there was no delivery, any payment was made on the contract of purchase by the defendant, at a time and under circumstances, which would save it from the effect of the statute. The preliminary negotiations between the parties prior to the making of the contract are unimportant on the questions here presented. They may, therefore, be left entirely out of view. The contract was made by parol, early in April, the parties being in sight of and near the two stacks, the subject of the alleged purchase and sale. The contract was to this effect: that the defendant should pay the .plaintiff $190 for the hay, and if he should do well with it, then that he should pay the plaintiff ten dollars more. The plaintiff then said : “ The hay is yours ;” “he, defendant, said, yes.” The plaintiff testifies: “This is all that was said that night.” At this time the defendant was in the road in his sleigh, about five or six rods from the stacks, and in sight of one of them. Now was there any delivery of the hay; any acceptance of it by the defendant at this time, within the meaning of the law ? The statute is this that 11 every contract for the sale of any goods, chattels or things in action for the price of fifty dollars or more, shall be void unless (1), a note or memorandum of such contract be made in writing, and be subscribed by the parties to be charged thereby ; or (2), unless the buyer shall accept and receive part of such goods, or the evidences, or some of them, of such things in action; or (3), unless the buyer shall at the time pay some part of the purchase money.” Did the defendant “ accept and receive ” any part of the hay ? The only proof that he did so was the remark of the plaintiff: “ The hay is yours,” and the defendant’s reply : “ Yes.” The plaintiff testifies that no part of the hay was taken from the stacks at this time, and there is no pretence that any was taken at any other time. The acceptance and reception rested then in words, 'nothing more. There was no act to evidence a change of possession. In Skindler v. Houston (1 N. Y., 261), it was held that to constitute a delivery and acceptance of goods, required by the statute of frauds, something more than mere words was necessary; that superadded to the language of the contract there must be some act of the parties, amounting to a transfer of the possession and an acceptance thereof by the buyer, and that the case of cumbrous articles was no exception to the rule. The sale in this case was of lumber piled on the dock in sight of the parties, and at the close of the bargain the plaintiff said to the defendant: “ The lumber is yours.” In this case BeoNSON, J., says : “Nothing was done, * * * there was nothing but mere words, and the statute plainly requires something more ; it calls for acts.” The rule laid down in this case has been firmly adhered to in all subsequent cases where the question as to the construction of the statute has arisen. In Ely v. Ormsby (12 Barb., 570, 572), Peatt, J., says : “ The statute in regard to acceptance, when the party depends upon that to render the sale valid, requires that acts unequivocal should furnish the evidence of such acceptance, and not words alone. The acceptance must be clear and unequivocal. The court will not allow a constructive acceptance to be sufficient.” In the case in hand there were only words, and the acceptance was but constructive at best. (Ham v. Van Orden, 4 Hun, 709; Moore v. Bixby, 4 Hun, 802.) We are of the opinion that there was no such delivery and acceptance of the hay in this case as was necessary to take it out of the statute.

The next question is as to the effect of the alleged payment of twenty-five dollars upon the contract made at a future time. The payment called for by the statute of frauds to rescue a contract from its operation must be made at the time; that is, at the time of entering into it. In Bissell v. Balcom (39 N. Y., 275), the payment was made on a subsequent day, and was made as stated expressly “to bind the bargain.” This was held to be sufficient to take the case out of the statute ; that, in that .case the sale would be deemed to have been made at the time the money was paid; that the contract then became binding according to the previous oral treaty. This decision was put on the ground that the payment was expressly declared to be made “to bind the bargain.” Judge Woodeuff says: “Here is a distinct intelligent reference by both parties to the negotiation of the previous day — a recognition by both of its want of binding force or validity, because no part of the stipulated price was paid; a declared intent to make the bargain valid and binding, assented to; a request of the payment of the money for that purpose, and. a payment in compliance with that request.” He adds, “by plain reference, though not by recital, the agreement is re-enacted. The terms are present in the minds of the parties and are affirmed by payment and acceptance on account thereof." This case received approval in Allis v. Read (45 N. Y., 142), where Judge Church says (page 150): “ I do not hesitate to say that after a void contract has been made the parties may make a valid contract, by adopting the terms of the void contract, provided it appears that such terms are understood and assented to, and a payment is made and received upon the contract.” These cases were considered and commented on in Hunter v. Wetsel (57 N. Y., 375), and it was there held that they established two propositions: (1.) That “ where a contract of sale has been made good at common law, but void under the statute of frauds, and the parties subsequently meet, and far the express purpose of then complying with the statute and malcing the cow-tract valid, a payment is made by the purchaser upon the contract, at the request of the seller, such payment is made at the time of making the contract within the meaning of the statute ¡ ” and (2.) That “ where in case of such a void contract the parties subsequently come together and substantially restate, • reaffirm or renew its terms, so as then and there by the meeting of their minds to make a contract, and then payment is made- upon the contract, the statute is complied with.” It was held that this case (Hunter v. Wetsel) was not saved under either of these propositions from the effect of the statute.

The case of Hunter v. Wetsel is much like this in hand. In that case a payment was made and accepted upon the hop contract or towards the hops. So here, according to the plaintiff’s testimony, the latter had called on the defendant for payment on “ that hay.” The defendant promised to see one Bush with a view of obtaining some money from him with which to make payment, and said he would come around the next day. The plaintiff then proceeds to state the further occurrence, as follows : “ The next morning he came along with his ox team and beckoned me to come to the road. As I got to the road, he took out his pocket-book and handed me two ten dollar and one five dollar bills, and said I have not seen Bush, but I have sent up word by John J. Yosburgh, and Busb was not at home. He said if bay does not do better than it is doing now, I don’t know but I shall have a pretty tough bargain, * # * this was all that was said at this time.” On his cross-examination, ho said : “ When I got up to him he had his money out, two ten, and a live dollar bill, and handed them to me; I did not see defendant at that time make an entry in diary; before he handed me the money there was nothing said.” The case in hand is no more favorable to the plaintiff on the facts than was the case of Hunter v. Wet-sel. In that the payment was made on the hop contract, or towards the hops. Here it was made on the hay contract, or towards the hay. In neither case was the contract restated, or even referred to, save by implication. Being substantially alike on the facts, they must stand or fall together. The language of •Judge Eabl in the case cited has direct bearing on this. Lie says : “ The payment must be made when the contract is made. Such is the plain language of the statute; Here there was but one contract made, which was in September. There was no attempt to make any other. There was no talk about any, and so far as appears no renewal, reaffirmation or restatement in any form of that one. All that took place afterward was a payment of $300 towards the hops.” (Here of $25 towards the ■hay.) “If this could be called a payment at the time of making the contract within the meaning of the statute, then this provision of the statute serves no purpose, as every payment subsequently made, to apply upon the contract, would render it binding within the statute, and the provision requiring payment at the time would be nullified.” In this view of the law, as it seems, all the judges of the Court of Appeals concurred. Give it application here, and a reversal of the judgment must follow.

There were admissions of the defendant put in evidence, to the effect that he had bought the hay and had paid the plaintiff $25 on the purchase. These admissions must be construed as having reference to the facts testified to by the plaintiff. He gives the circumstance of the purchase, and also those attending the payment. There can be no fair pretence that there was any other contract or payment than those testified to by the plaintiff; that there was any other contract or payment is against his sworn statements. The admissions in regard thereto, put in evidence, must, therefore, 'have had reference to them, and the referee should have so found, as he was requested to do. The judgment must be reversed.

Judgment reversed, new trial granted, costs to abide the event, and reference discharged.

LeakNEd, P. J., and Boardmian, J., concurred.

Judgment reversed, new trial granted, referee discharged, costs to abide event.


text:
    WELTON B. OSTRANDER and others, Respondents, v. HARLOW H. CONKEY, Appellant.

      The service of an amended pleading destroys issues previously joined, and nullifies a notice of trial thereof.

    Where, after issue has been joined in an action, and the same has been regularly noticed for trial at a circuit, by the defendant, the plaintiff in good faith and ■within the time allowed by law serves an amended complaint, the issue theretofore joined and noticed for trial is destroyed, ard the action cannot be tried until new issues have been joined and regularly noticed for trial.
    When the amended pleading is served in bad faith, the remedy of the party aggrieved is by motion to strike it out.
    Appeal from an order setting aside ana vacating an order theretofore granted dismissing the complaint, and also setting aside and vacating the judgment granted on such order.
    The complaint herein was served on the 1st day of August, 1879, and the answer on the 6th day of September, 1879. Notice of 'trial for the October Circuit was duly served by mail, by the defendant's attorneys, on the 20th day of September, 1879, anda note of issue was duly filed on the 24th of September, 1879, for .the circuit beginning on the 6th day of October, 1879.
    After the due service of the notice of trial, and the placing of the cause on the calendar, and on the 26th day of September, 1879, the plaintiff's attorneys served an . amended complaint. Immediately upon its receipt the defendant’s attorneys served upon the plaintiff’s attorneys a written notice that such amended complaint was received, and would be, answered without prejudice to the proceedings already taken, to wit: the notice of trial and filing of the note of issue.
    Notwithstanding the notice of trial and the notice that the amended complaint was received and answered without prejudice to such notice of trial, no appearance was made by or on behalf of the plaintiffs at the circuit, and when the cause was called, no motion was made for any continuance, and no motion to strike the cause from the calendar, and the court, upon the cause being reached, and on proof of the service of the notice of trial, dismissed the complaint, and thereafter a judgment was entered.

      Leslee, W Bussell, for the appellant.

      W G. Tracy, for the respondents.
   Bockes, J.:

The construction given to the Code of Procedure by the Special Term, in granting the order appealed from, was in consonance with reported decisions made soon after the Code was adopted. (Washburn v. Herrick, 4 How., 15; Plumb v. Whipples, 7 id., 411; Griffin v. Cohen, 8 id., 451; Rogers v. Rathbun, 8 id., 666.) These decisions have controlled the practice now for over a quarter of a century. We are cited to no case overruling these decisions, nor have we been able to find any such case. Those cited us by the appellant’s counsel do not assume to overrule them. We should not at this time, after so long an acquiescence in a rule of practice merely, lay down a new course of procedure involving no question affecting a substantial right or right of property; but we will add that we are of the opinion that the decisions are strictly correct.

The clause of the Code which gives the right to amend a pleading “without prejudice to proceedings already had ” must be considered and construed with reference to the absolute right of a party once to amend. Hence, as was laid down in Washburn v. Herrick (supra), that if a party notice his cause for trial before the time allowed to his adversary to amend shall have expired, he does so at his peril; that is, at the peril of having his notice of trial go for nothing in case of an amendment of the pleading by his adversary in good faith. This question was well elucidated in Plumb v. Whipples (supra), Judge Harris there says : “ The plaintiff had a right, when the cause was at issue, to .notice it for trial. If the issue noticed for trial still remained when the time for trial arrived, then he might try the cause, and if successful perfect judgment. None of these proceedings are to be prejudiced by a subsequent amendment, even although it should be made within the time prescribed by the statute. The plaintiff may notice his cause for trial before the time for amending the answer expires. Ho does so at his peril. That peril is the contingency that before he can bring it to trial the defendant may amend, and thus destroy the issue he had intended to try.” This seems to be a full and plain exposition of the rule of practice intended by the Code of Procedure ; and it had the approval of Judge Allen in both of the other cases cited. It maybe added that the Code contemplates a notice of trial after the issues in the ease have, according to the rights of the parties under due practice, been settled. It is provided that either party may notice the cause for trial at any time after the joinder of issue, and at least fourteen days before the commencement of the term. The issue here referred to is the issue made for trial in the cause. In case of an amendment of the pleadings it means the issue made on the amended pleadings, for these are the issues to be tried. There is no question here made as to the good faith of the party in serving the amended pleading. But were this otherwise, relief should be obtained by proceeding to strike out the fraudulent pleading. (See last clause of section 542, Code of Civil Proc., also remarles of Allen, J., in Griffin v. Cohen, supra.)

The order appealed from must be affirmed, with ten dollars costs and disbursements.

LearNed, P. J., and Boardman, J., concurred.

Order setting aside order, etc., affirmed, with ten dollars costs and printing disbursements.


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    WILLIAM R. CHANDLER as Administrator, Etc., of HIRAM CHANDLER, Deceased, Respondent, v. E. BILLINGS ALLEN, Executor, Etc., of ISAAC B. ALLEN, Deceased, Appellant.

      Action to settle partnership accounts — proof of the amount of repairs made by one partner ■— the items of labor and materials must be given — the partner ean-not testify as to the average amount of repairs — When a judgment will be reversed because of an error of the referee in admitting evidence.

    Upon the trial of this action, brought to settle the accounts of a firm that had been engaged in running a grist-mill, it appeared that the expenses of keeping the mill-flume and dam in repair were to be borne by the pai’ties equally. Upon the examination of the plaintiff as a witness "in his own behalf, he was allowed, against the objection and exception of the defendant’s counsel, to state, in answer to questions put to him, that he should think that the repairs he had caused to be made, including the labor of his employees, amounted, in each year, upon an average, to about fifty dollars, and that the repairs he had caused to be made in the last thirteen years were worth $300.

      Held, that it was error to allow the plaintiff to give an aggregate estimate as to the yearly cost of the repairs, grouping together the labor of himself and his employees and the cost of the materials used; or to give such an estimate as to the gross amount of the repairs for thirteen years.
    That the items of labor and the materials furnished should be proved with reasonable certainty, before any allowance could be made therefor.
    That as the evidence was material, and bore upon an important issue, it must be presumed to have been influential with the referee, and that a new trial must therefore be ordered.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The original plaintiff died after the trial and before the decision of the referee, and the original defendant died after the perfecting of the appeal from the judgment herein.'

      M. M. Waters, for the appellant.

      H. O. Miner, for the respondent.
   Bockes, J.:

The action was brought to settle a partnership and for an accounting in regard to the partnership business. The- business consisted in the running of a grist-mill and dealings in flour and grain, and extended during tbe period from tbe autumn of 1862 to July, 1875. Tbe report of tbe referee is meagre and indistinct ; but it seems from tbe pleadings and evidence that tbe original defendant was sole owner of tbe mill, and that the plaintiff’s intestate put bis labor and skill in tbe business against tbe use of tbe mill. Then tbe referee finds that under tbe partnership arrangement tbe parties thereto were to bear equally between them tbe expense of keeping tbe mill-flume and dam in repair, and were to divide the profits resulting from tbe business in equal' proportions. He further finds that the expenses for repabs were borne equally by tbe partners during tbe term of the partnership, and that neither of them bad any claim against tbe other therefor ; and on further adjustment of tbe partnership accounts, other than for said expenses for repairs, be finds that there was due to tbe plaintiff’s intestate from tbe defendant’s testator, for bis half of tbe profits of tbe business, tbe sum of $525.94, and that there were outstanding and uncollected claims and accounts of tbe firm amounting to $1,400, some of which, according to tbe evidence, were collectible.

Tbe referee omits to state whether there were any unpaid debts outstanding against tbe firm, although this fact was put in issue by tbe pleadings. He directed judgment against the original defendant for $525.94, with costs, and also directed the appointment of a receiver “to take charge of tbe effects” of tbe firm, or, as this direction is understood, to make collections of tbe out- • standing claims and accounts of tbe firm. It does not appear that a receiver was appointed ; on the contrary, it is stated in tbe record that such appointment was denied at Special Term, but on what ground is not given.

Tbe first alleged ground of error relates to tbe admission of evidence. It appears that the subject of expense in keeping the mill-flume and dam in repair during the partnership term was made, by tbe pleadings and evidence, an important element in tbe adjustment of the partnership accounts between tbe partners. Tbe partners were to bear this expense equally, and the referee, on tbe evidence submitted to him,, found that they both complied with this provision in the partnership contract, and that neither bad any claim against the other therefor. Tbe plaintiff, on the trial, gave evidence on this subject. 'He testified that he caused the repairs on the dam and flume to be made out of his own means. He was then asked: What would these repairs amount to each year, upon an average ? ” He was allowed to answer, against objection, and said: “I should think fifty dollars per year ; that included the labor I have done and employed.” And again : “ What was the work you have done upon the mill and dam in repairing them, in the last thirteen years, worth ?”' The witness was allowed to answer, against objection, putting his estimate at $300.

In the admission of this evidence there was manifest error. It ■ was improper to permit the witness to give an aggregate estimate, grouping together labor of himself and of his servants and employees, and also materials used in repairs, and fixing upon an average amount per year, or a gross amount for thirteen years. These expenses should have been itemized -by regular entries in his partnership books. Not having been so entered, the party would be allowed to prove the items and their amounts ; still, the items of labor and the materials furnished should be proved with reasonable certainty before an allowance could be properly made for them. To aggregate the expenses by the year, or for thirteen years, without giving particulars from which to determine the outlay or amount to be allowed, was permitting the witness, a party to the action in this case, to take the place of the referee in fixing the allowance to be made to himself. He left little or nothing to the judgment of the referee ; nothing save to adopt his conclusion, giving as an average aggregate for labor and materials left by the witness unspecified and but generally defined in character or kind. To show the utter impropriety of. this evidence, we need only to refer to the cross-examination of the witness, where he says: “I said the $300 for repairing mill and dam was estimated, or guess-workHe also stated that some of the charges for repairs were contained in his account, and he then added : “I did not include the charges for repairs charged on the book when I made my estimate of $300.” The impropriety of this evidence is very apparent.

It is suggested by the respondent’s counsel that it is not made to appear that this evidence was accepted as influential with the referee. It bore, however, distinctly upon an important issue, and it must be presumed to have been influential. (Foote v. Beecher, 8 W. Dig., 520; Schoonmaker v. Wolford, MSS. opinion.) That it was so, too, is quite manifest. An allowance to a very considerable amount must have been made by force of it, as there were, in point of fact, large expenditures for repairs on the part of the defendant, balanced by like large expenditures on the part of the plaintiff. The referee found the expenses incurred by the parties respectively for repairs balanced, so that neither had any claim against the other therefor. Thus the evidence was material, and was doubtless influential with the referee.

Because of the admission of the improper evidence above alluded to, there must be a new trial, and an examination of other questions in the case becomes unnecessary.

Learned, P. J., and Boardman, J., concurred.

Judgment reversed, new trial ordered, referee discharged, costs to abide event.

        Ante p. 166.