author: Follett, J. Van Brunt, P. J.

text:
    Simon Doctor, Resp't, v. William A. Darling, App'lt.

      (Supreme Court, General Term, First Department,

      Filed March 17, 1893.)

    1. Deed—Covenants—Interest.
    In an action to recover damages for breach of a covenant against incumbrances interest is not recoverable, as the damages are unliquidated.

      2. Same—Restrictions as to use oe premises.
    Where limitations upon the right to use land diminish the value of such land, they are incumbrances within the meaning of a covenant against incumbrances.

      8. Same—Evidence.
    Evidence to show that the grantee had knowledge of the restrictions when she took her deed, and that the use of property in the neighborhood had so changed that a court would not restrain the owner of the lot from using it for the prohibited purpose, is properly excluded when offered only in defense of the action. The fact that the limitations could not, or would not, be enforced by injunction is no defense to an action for damages if any were occasioned by the restrictions.

      4. Same.
    Where the plaintiff sold the premises subject to the restrictions for the purpose of fixing the damages, evidence of the amount expended by her in repairing the building, if such repairs really improved the value of the property, is admissible for the consideration of the jury in determining what the property was worth unrestricted and restricted. (Follett, J., dissents.)
    Appeal from judgment entered on verdict directed by the court, except as to the amount of damages, and from order denying motion made on the minutes for a new trial.
    January 13, 1874, a lot seventy feet wide, east and west, and 100 feet, five inches long, north and south, and situate on the north side of East Sixty-third street, was conveyed in fee, by a full covenant warranty deed, duly recorded January 1, 1874, to William Hyams, subject to the following restrictions: “And the said • party of the second part, for himself, his heirs, executors, administrators or assigns, or any of them, shall not, nor will, -erect or build, or cause or suffer to be erected or built, upon the lot of land hereby granted, or upon any part thereof, any building or structure of any kind, description or character whatever, fences excepted, other than good and substantial dwelling houses, at least three stories in height above the basement, constructed of brick or stone, having roofs covered with slate or metal, which said houses shall be erected or built in such manner as to cover the whole width of the said lot of land, leaving no alleys or passages communicating from the street to the yards, other than the ordinary halls or entries in such houses contained, and shall have the exterior face of the front walls constructed of stone, built upon a line parallel with and distant five feet from the northerly side or line of Sixty-third street, and measuring at least forty feet from the established grade of said Sixty-third street to the upper line or top of the cornice or eavestrough. And that the said party of the second part, his heirs, executors, administrators or assigns, shall not use or suffer the said dwelling house to be used or altered so as to be used for any tenement, community house, stable, theater, or other place of public amusement, or any manufactory, trade or business whatsoever, or for any other purpose which may be obnoxious or offensive to the neighboring inhabitants, and will keep the hereby granted lot of land, during such time as there shall be no building erected, or being or prepared for or in process of erection thereon, free and unobstructed, except by necessary fences.”
    January 31, 1874, Hyams conveyed the lot, by a full covenant warranty deed, duly recorded February 3, 1874, to Thomas Mc-Manus, subject to the same restrictions. May 31, William A. Darling, defendant, acquired title to the lot through several mesne conveyances, all of which were duly recorded, but no reference was made to said restrictions in any of them. February 15,1886, Darling conveyed the lot to Rebecca Childs, in consideration of $52,000, by a warranty deed, which contained a covenant that the premises were unincumbered, except certain mortgages which were specified. September 21, 1888, Mrs. Childs contracted to sell the premises to Herman Wronkow for $52,500, and to convey them free from all incumbrances, except certain mortgages which were specified.
    Upon an examination of the records, Wronkow discovered the restrictions contained in the deed to Hyams, and refused to perform his contract. The premises were sold through brokers, whom Mrs. Childs paid $350 for their services. Wronkow paid $175 for searching the title, which she paid to him. On the resale hereinafter mentioned, she paid to the brokers $350. In February, 1889, Mrs. Childs expended $550 in altering and extending the plumbing on the premises pursuant- to an order of the board of health. May 31, 1889, Mrs. Childs, in consideration of $50,000, conveyed the premises to Griffin Tompkins, subject to the covenants contained in the deed to Hyams ; and October 29, 1889, she assigned to the plaintiff all causes of action against Darling arising out of the breach of the covenant against incumbrances. November 4, 1889, this action was brought to recover the damages for the breach of the covenant, which were alleged to be $2,500; the difference between the price agreed to be paid by Wronkow and the price paid by Tompkins, the sum paid to Wronkow for the expense of searching the title, and the amount paid to brokers for making the two sales. On the trial the plaintiff was allowed to prove, without objection that it was not claimed in the complaint, the payment of $550 for extending and repairing the plumbing and sewers. The defendant, in his answer, alleged that Mrs. Childs, before she purchased the property, was informed of the restrictions contained in the deed to Hyams, and that, by the changed situation of the neighborhood in which the property was situated, the restrictions had become inoperative and waived by the owners of property in the vicinity. On the trial the court ruled that the plaintiff was not entitled to recover the sums paid the brokers for effecting the sales, or the sum paid for searching the title, but ruled that the measure of damages was the difference between the value of the premises, unrestricted (which could not be deemed more than $53,000, the price she paid Darling), and restricted as they were, and $550, the expenses of repairing the plumbing, if those repairs were fairly done and really improved the property to the extent of the sum paid therefor. The jury rendered a verdict for $3,050, with $570 interest. The $3,050 is equal to the difference between the price which Wronkow agreed to pay, and the sum for which she subsequently sold the premises to Griffin Tompkins, and $550, the sum paid for plumbing.

      Wakeman & Campbell (A. J. Dittenhoefer and J. Albert Englehart, of counsel), for app'lt; Sol. Kohn, for resp't
   Follett, J.

The jury having found that the limitations upon the right to use contained to Hyams diminished its value, the restrictions are incumbrances, within the meaning of the covenant against incumbrances. Prescott v. Trueman, 4 Mass., 627-629; Wetmore v. Bruce, 118 N. Y., 319; 28 St. Rep., 687; Trustees v. Lynch, 70 N. Y., 440; Rawle Cov. (4th ed.), 95; 2 Wash b. Real Prop., 639 (4th ed.), 460.

On the trial the defendant offered to show by oral evidence that Mrs. Childs knew of the limitations upon the right to use the premises when she took her deed, which, under the plaintiff’s objection was refused. This was not error. Huyck v. Andrews, 113 N. Y., 81-85; 21 St. Rep., 924. Nor was it error to refuse to permit the defendant to show that the use to which property was put in the neighborhood had so changed that a court of equity would not restrain the owner of the lot from using it for the prohibited purposes. The fact that the limitations could or might not be enforced by an injunction is no defense to an action at law for the recovery of the damages, if any were occasioned by the restrictions. This evidence was not offered as bearing upon the question of the amount of damages recoverable in the action, but as a defense to it. Besides, great liberality was shown both sides in the admission of evidence upon the question as to how much the value of the property was diminished by the restrictions.

The plaintiff recovered $550 expended by Mrs. Childs for plumbing and sewers between the date of the rescission of the executory contract of sale with Wronkow, and the date of the conveyance to Tompkins. The evidence of these expenditures was sufficiently objected to by the defendant, but the objection was overruled, and an exception taken, which was error. Upon a breach of a covenant of seisin or quiet enjoyment the value or expense of improvements made by the evicted grantee, cannot be recovered as a part of his damages. Pitcher v. Livingston, 4 Johns., 1; Bennet v. Jenkins, 13 id., 50; Murray v. Ballou, 1 Johns. Ch., 566-577; Dimmick v. Lockwood, 10 Wend., 142; Kinney v. Watts, 14 id., 38; Peters v. McKeon, 4 Denio, 546-550; Willson v. Willson, 25 N. H., 229; Rawle Cov. (4th ed.), 235 et seq.; 3 Sedg. Dam. (8th ed.), § 958; Hayne Dam. (2d ed.), 147.

The cost or value of improvements put upon the property not being recoverable in case the entire estate is lost by the failure of the principal covenants, it is difficult to see on what principle their value or cost can be sustained when the worth of the estate is simply diminished through the failure of a subordinate covenant. In some cases the same measure of damages may be recovered upon a breach of a covenant against incumbrance as upon a breach of a covenant of seisin ; for example, when the incumbrance is foreclosed, and the grantee is evicted. The measure of damages caused by an incumbrance cannot be greater when the grantee is not evicted than it is in the case of an eviction. There may be cases- in which the value or expense of improvements may be recoverable, as in a case of a covenant given with special reference to contemplated improvements by the grantee, but that is not this case. ' It is apparent, we think, from the instructions of the court, and the verdict of the jury, that the item for plumbing was included as a part of the damages recovered. Upon this question the court said : “ You will remember that between the time when Wronkow withdrew from his first contract, and the time when he again came forward, Mrs. Childs put certain repairs upon the property, plumbing, etc., for which she paid $550. It is quite immaterial, in the aspect of the case which I am now considering, whether these repairs were done by order of the board of health, or merely because Mrs. Childs wished to improve her property. The fact is that the property was improved to the extent of the $550 of repairs put upon it, and the plaintiff’s claim is that that sum should be added, in your minds, to the $52,000 which Wronkow was to pay for the property before the repairs were made. If the repairs were fairly done, and really improved the property to the extent of $550, the plaintiff thus claims that the property, treated as free from this restriction, was worth $52,500, which Wronkow was willing to pay, plus the $550 subsequently put upon it, viz., $53,050, and that when Mrs. Childs was only able to sell it, as restricted, after the repairs had been put upon it, for $50,000, there was a depreciation, caused by the restriction, of $3,050. That is the view which the plaintiff takes of it, and the view that he seeks to impress upon you.”

The jury rendered a verdict for $3,050, showing, we think, that the $550 were added to the $52,500, and the price which the premises were sold for, $50,000, deducted. To this sum interest to the amount of $570 was added, which made up the verdict of $3,620. It is true that no exception was taken by the defendant to this part of the charge, but it shows the use which the jury was permitted to make of the evidence of the amount paid for plumbing, and that the error in admitting this evidence affected the verdict. The court erred in permitting a recovery for this item.

When a grantee has been evicted from the subject of the grant, and becomes entitled to recover as damages the consideration of the conveyance, he is entitled to interest as compensation for the mesne profits for six years, which he is liable to pay to the true owner. Staats v. Ten Eyck, 3 Caines, 111-115; Pitcher v. Livingston, 4 Johns., 1-13; Caulkins v. Harris, 9 id., 324; Bennet v. Jenkins, 13 id., 50; Kinney v. Watts, 14 Wend,, 38-40; Peters v. McKeon, 4 Denio, 546-549; Rawle, Cov. (4th ed.), 600; 3 Sedg. Dam. (8th ed.), § 963. If the incumbrance is security for a debt less in amount than the consideration paid for the land, and the grantee is compelled to pay it to relieve his property, he may recover the amount with interest. Pitcher v. Livingston, 4 Johns., 1-10; Dimmick v. Lockwood, 10 Wend., 142-151. But we find no case holding that interest may be recovered on damages arising from a breach of a covenant against incumbrances when the incumbrance is permanent in its nature; for in such a case the measure of the damages is the difference of the value of the premises with and without the incumbrance, and are necessarily unliquidated. Interest upon such damages is not allowable in actions on contracts. No question was raised as to whether the difference in value should be ascertained as of the date of the conveyance by Darling to Mrs. Ohilds, the covenant then being broken, or as of the date of the conveyance by Mrs. Ohilds to Griffin Tompkins, and the question need not be considered. The allowance of interest was error.

Fortunately, this case was so clearly tried, and the different items recovered so distinctly stated, that we are not required to reverse the judgment, and put the parties to the expense, and the •courts to the trouble, of a new trial.

■ The judgment should be modified by striking therefrom the item of $550 for improvements, and $570 allowed for interest, and as modified affirmed, without costs in the general term to either party.

Van Brunt, P. J.

While concurring generallyin the of Mr. Justice Follett herein, I do not accede to the proposition that it was error to admit the evidence as to the amount expended on the plumbing of the premises, It is true that the plaintiff could not recover for the amount thus expended, but as evidence was offered to show what the premises brought when sold unrestricted, and what they subsequently brought when sold restricted, for the purpose of giving some guide as to the damage caused by the restriction, the admissibility of which evidence is not objected to, if there was any change in the condition of the premises between the time of the two sales, this certainly affected the value of the evidence thus offered. If they had been injured by the elements, the defendant could certainly have shown that; and, therefore, it seems to me, if they had been rendered more valuable by the necessary repairs, the plaintiff might show that, as bearing upon the value of the evidence of the sale subsequent to the repairs. This was the view in which the court submitted the question to the jury. They were instructed that, if the repairs really improved the property to the amount expended for them, ■they might take this into consideration, in determining what the property was worth unrestricted and restricted. It is undoubtedly true that upon a breach of seisin or quiet enjoyment the value or of improvements made the evicted cannot be proved as part of the damages, but in the case at bar there was no such recovery. The question under investigation was the damage the restriction caused to the grantee. There was no total eviction, but only a partial restriction upon full enjoyment. The amount of this damage was a question between grantor and grantee, and was measured by the difference in value unrestricted and restricted. Evidence being given of a sale restricted, what had been done with and to the property subsequent to the original sale unrestricted was certainly competent to show what weight should be given by the jury to this evidence of the restricted sale. I am of the opinion, therefore, that no error was committed in the admission of this evidence. As shown by Mr. Justice Follett, the allowance of interest was error. I think that the judgment should be reduced by amount of interest, $570, and, as modified affirmed, without costs.

O’Brien, J., concurs in opinion of Van Brunt, P. J.


source: Caselaw Access Project

author: O'Brien, J.

license: Public Domain

text:
    Francis Higgins, Rec'r of the North River Bank, Resp't, v. Neil O'Donnell et al., App'lts.

      (Supreme Court, General Term, First Department,

      Filed March 17, 1893.)

    Bills and notes—Accommodation—Defense.
    It is no defense to an action by a bank against the makers of a note that the same was an accommodation note made at the r¡ quest of the payee without consideration, at the request or suggestion of the bank, and that it was made on the understanding that the payee should pay the same at maturity, where there is no allegation that the bank agreed that it would not look to the makers or that they should not incur any liability on the note.
    Appeal from judgment in favor of plaintiff directed by the court on the pleadings.

      E. L. Collier, for app'lts; Durnin & Hendrick, for resp't.
   O'Brien, J.

The action was brought to recover upon promissory notes made by the defendants to the order of one Thomas Bracken, and by him indorsed and delivered to the bank. The answer admits the making of the notes, but for a defense alleges that “ said notes were made by request of the defendant Thomas Bracken, the payee mentioned therein, without consideration, and solely for his accommodation, at the request and suggestion of the North River Bank, in the city of New York, and not otherwise, as the defendants are informed and verily believe; that the notes in question are not the original notes, but notes given after many renewals, with the distinct understanding that the said Thomas Bracken, the payee therein named, should take up and pay the same at maturity ¡ as the defendants are informed and verily believe.”

It is insisted that the court erred in directing^ a verdict in plaintiff’s favor upon the pleadings, and reference is made to the case of Garfield Nat. Bank v. Colwell, 57 Hun, 169; 32 St. Rep., 929, in support of this contention. That case is authority for the proposition that “ where, at the time that a note is discounted, there is a distinct understanding between the maker of the note and the payee, which is stated to the bank .at which it is discounted, that the maker should incur no liability by the signing of the note, he will not be held liable thereon to the bank which has discounted itthat “ such paper is not mere accommodation paper, and is under such circumstances unenforceable against the maker thereof.”

The distinction between the defenses set out in that case and in this is marked. In the Garfield Nat. Bank case, the defense and proof were that the note was discounted by the bank under an agreement that the makers should not incur any liability upon the note; whereas the allegation here is that the note was made for ' the accommodation of Bracken, at the request of the North River Bank. It is true there is a further allegation that there was a distinct understanding that the payee should take up and pay the same at maturity; but by and between whom such understanding was arrived at or made is not alleged, and it cannot be assumed, in the absence of any allegation to that effect, to have been made with the bank.

The construction of the answer is susceptible of the conclusion that, so far as these defendants are concerned, it was a pure accommodation note given to Bracken, under an understanding with the latter that he was to take it up. But this is very different from an allegation which appeared in the Garfield Nat. Bank case, that there was a distinct agreement with the bank that the makers were to incur no liability whatever upon the note. The fact that they were mere accommodation makers cannot relieve these defendants from liability, as shown by the very case relied upon of the Garfield Nat. Bank, which holds “ that the mere fact that it was accommodation paper would in no way affect the right to recover, because the giving of the note as an accommodation, if no recovery could be had upon it by the bolder of the note, would not be any accommodation to anybody, because nobody could use it." It may well be that the bank knew that it was accommodation paper, made by these defendants for the benefit of Bracken, but this in no way prevented their being liable thereon.

The allegation, therefore, that they were accommodation notes given to Bracken, at the request of the North River Bank, does not constitute a defense, nor the further allegation that the understanding was that Bracken should pay the same at maturity. Here there is an absence of an allegation, which was the turning point in the Garfield Nat. Bank case, that the bank would not look to the makers, or agreed with such makers that they were not to incur any liability upon the note. There is here not even an allegation that the bank had any knowledge of the understanding, set up by way of defense, that the notes were to be paid by Bracken at maturity.

We think the disposition made by the trial judge was right, and that the judgment appealed from should be affirmed, with costs and disbursements.

Van Brunt, P. J., and Follett, J., concur.


author: Van Brunt, P. J.

text:
    Martha E. Clark, Resp't, v. Frederick K. Clark, App'lt.

      (Supreme Court, General Term, First Department,

      Filed March 17, 1893.)

    Judgment—Date on.
    Where a judgment is dated on the day on which the court directed it to be entered, it is proper, and the date will not be changed.
    Appeal from two orders; the one denying defendant’s motion to alter the final decree herein, and the other denying his motion to resettle the former order.

      F. K. Clark (Howard T. Marston and David F. Eilau), of counsel), for app’lt; Thornton, Earle & Kiendls (Charles M. Earle, of counsel), for resp’t.
   Van Brunt, P. J.

It is claimed that the entered herein exceeds the prayer and allegations of the complaint. An inspection of the complaint, however, shows that this claim is entirely unfounded, and that all the relief granted in the decree was prayed for. It is further urged that this action was brought to quiet title, and that certain allegations necessary to such an action were not contained in the complaint in question. It may be doubtful whether any such question can be raised upon this appeal. If the allegations in the complaint were insufficient, it was the duty of the defendant to demur to the same. But the action is not" founded upon any such theory. It was a bill to have adjudged null and void certain instruments which had been given by the plaintiff to the defendant, and to enjoin him from attempting to assert rights by reason of such instruments, and that is all that was adjudicated. The order appealed from denying the motion to strike out portions of the decree should be affirmed, with ten dollars costs and disbursements.

The appeal from the order denying the motion to resettle said order is also equally without merit. The question as to the right of the appellant to have the date of the decree changed to the time when it was made, filed and entered does not possess any greater merit, as the decree was dated upon the day upon which the court directed the judgment to be entered. This order, therefore, should also be affirmed, with ten dollars costs and disbursements.

O’Brien and Follett, JJ., concur.


text:
    Henry P. Finlay et al., Resp'ts, v. Placido De Castroverde, App'lt.

      (Supreme Court, General Term, First Department,

      Filed March 17, 1893.)

    Abbe st—Affidavit.
    An affidavit to procure an order of arrest, which states that an agreement was made by which defendant became plaintiffs’ agent in Mexico for the sale of goods; that shipments of goods were made to him; that he received them and acknowledged their receipt; that he converted the same to his own use and has never accounted therefor, is insufficient, since the affiant in New York could have had no knowledge of the receipt and conversion of the goods, and his only information of the receipt being from the letter of acknowledgment, that should be produced.

      Appeal from an order at special term, denying a motion to set aside an order of arrest.

      Otto Horwitz, for app’lt; J. A. Shoudy, for resp’ts.
   Van Brunt, P. J.

This action was commenced by the issuance of a summons and order of' arrest accompanying the same. The summons and order of arrest being served, this motion was made upon the papers upon which the order was granted to vacate the same, and from the order denying the motion this appeal is taken. The order was granted upon the affidavit of one of the plaintiffs," who swore that the plaintiffs were merchants residing and doing business in the city of Mew York, and that the defendant, in January, 2891, was a merchant doing business in the city of Mexico; but that he was informed and believed that the defendant had left the city of Mexico, and was at the time of making the affidavit in the city of Mew York; that in said month of January the plaintiffs and defendant entered into an agreement in writing, sig led by them, which was in the plaintiffs’ possession, and ready to be produced, by which it was provided that the defendant should become the sole agent in the republic of Mexico for the plaintiffs for the sale of certain merchandise, and that the plaintiffs, upon receipt of orders from the defendant, should ship merchandise, which the defendant was to receive and account for at certain prices therein named, and to render separate accounts of sales for every shipment, and to remit to them the amount due for the merchandise as soon as sold, whether the purchase price had been received for said merchandise or not, the defendant taking the risk of all sales; and that, in pursuance of this agreement, dur ing the year 1891, and the months of April, May and August, the plaintiff made four shipments, amounting to the sum of $3,380.55, including a sum advanced by the plaintiffs for freight upon the merchandise; that the defendant was entitled toa credit of $152.73 for the balance due him on account of previous shipments, leaving $3,227.82 due the plaintiffs, no part of which had been paid.

The affidavit further stated that the defendant was to receive in consideration of his services one-half of the net profits which might be realized upon the merchandise over and above the prices named after deducting freight duties and other actual charges ; that the defendant received all of said merchandise prior to October 1, 1891, and acknowledged the receipt thereof by letters addressed to the plaintiffs, and which they received in due course, and then had in their possession. The affiant further stated that the defendant never made any remittances or payments on account of the merchandise, and was entitled to no credit- except as above mentioned; and that by letter dated October 7, 1891, the defendant wrote to the plaintiffs that he had given up his business, and had transferred this merchandise to the firm of J. M. Gaston & Co., of that city. And then follows tire legal conclusion that the defendant had no right or authority to make such transfer, and the allegation that plaintiffs had since received a letter from said firm of Gaston & Co., to whom the defendant said he had transferred said goods, in which they say that the defendant, before his departure from Mexico, and prior to his transfer to them, hypothecated all of said merchandise to the Bank of London and Mexico as security for a loan to him of $5,000, and that said firm could not account to plaintiffs for the proceeds of any of said merchandise until said loans were paid; that defendant had never rendered any account. in respect to said merchandise except the statement that he had turned the same over to Gaston & Go.; that he had been several times to the city of New York, but had never called upon plaintiffs, or reported to them in- any way, and is now in the city of New York, but is endeavoring to conceal his presence in said city from the plaintiffs; and that he believed the information received from Gaston & Co: to be true, and that the merchandise was received by the defendant in a fiduciary capacity, and he had wrongfully converted the same, to the plaintiffs’ damage to the amount of $5,000.

It is urged upon the part of the defendant that the motion to vacate the order of arrest should have been granted, because many of the material allegations of the affidavit upon which the order of arrest was founded were made upon information and belief, and derived from documents which were not produced, and that the allegations in the affidavit are simply conclusions derived from an inspection of these documents, which it is the province of the court to draw, and not of the affiant. Upon the other hand, it is claimed by the respondents that the affidavit is not upon information and belief, nearly all the essential facts being within the knowlege of the affiant, and stated positively.

It is asserted that the making of the agreement, the shipping of the merchandise, the receipt thereof by the defendant, and the acknowledgment of such receipt, were all facts within the knowledge of the plaintiff who made the affidavit. How the affiant, at New York, had personal knowledge of the receipt of these goods in Mexico, it is somewhat difficult to imagine. It may be that he believes they were received because he believes himself to have been informed by a letter of the defendant that he had received them, but he clearly had no personal knowledge of the fact. The only information that he claims to have had on that point is the letter of the defendant acknowledging its receipt. How, it is clear that if he was testifying upon the stand as a witness with respect to the receipt of these goods, he could not be heard to open his mouth without the production of the letter, or accounting for its loss. Hence, when we consider the difference between the allegations of a complaint and an affidavit, the former being allegations of fact, to be supported by evidence to be subsequently given, if not admitted, and the other furnishing the evidence to the court from which it can draw its own conclusions, it is apparent that allegations of this character, without the production of the proof, have no probative force whatever. It is undoubtedly true that plaintiffs had personal knowledge that no account had been rendered, but as to the transfer and conversion of the property the whole allegation is based uoon correspondence, not a particle of which is produced. How, whether this correspondence bears out the construction which is placed upon it by the plaintiffs is for the court to determine, and not the plaintiffs. These facts have been so frequently pointed out by this court that it seems hardly ■necessary to discuss them further. In the case of Tim v. Smith, 93 N. Y., 91, it was held that the affidavit of an attorney as to facts necessary to establish the validity of an attachment was wholly insufficient; the court saying: “It is difficult to see how an attorney can acquire such knowledge of the several facts required to be proven as entitles him to give legal evidence of their existence,” the court thus expressly recognizing that an affidavit, unless it contains legal evidence of the existence of the facts to be established, is a nullity. Applying this test to the affidavit in ■question, it is apparent that it does not at all comply with the rule. We think that the order was wrong, and should be reversed, with ten dollars costs and disbursements, and the motion granted.

O’Brien and Follett, JJ., concur.


author: O'Brien, J. Van Brunt, P. J.

text:
    Caroline A. Middlebrook, Resp't, v. Mary E. Travis et al., App'lts.

      (Supreme Court, General Term, First Department,

      Filed March 17, 1893.)

    1. Bar—Pendencv of former action.
    Where both actions are commenced on the same day,the court is not precluded from proceeding to judgment on the action first ready for trial by the pendency of the other action, as the law does not regard fractions of a day.
    •§. Same.
    Where both actions were commenced on the same day, but the plaintiff in one was not served with summons until she had commenced her own by service on some of the defendants, a plea of former action pending cannot be sustained.
    Appeal from interlocutory judgment in an action for partition.

      Thomas Nelson, for app’lt Travis; Edward Wells, Jr., for app’lt Mills; John M. Powell (William M. Powell, of counsel), for resp’t.
   O'Brien, J.

Apart from the question of costs, in view of the statement upon the argument, which was not denied, that the premises have been sold for a satisfactory sum, no useful purpose is to be served by interfering wdth the judgment under which such sale took place. The defendants, appellants, insist that, having pleaded the pendency of another action, this was fatal to the rendering of a judgment herein. It appears that the summons in both actions were served on the same day, and of the twenty-seven parties to both actions only ten are common to both; the difference in parties resulting from the plaintiff in this action having included the husbands of the tenants in common as parties, while in the action claimed to have been first commenced and pleaded in bar such husbands were not made parties, but tenants under lettings of some part of the premises were included as parties defendant.

While doubt has been expressed as to whether husbands of the owners of the fee are necessary parties, and while it is unquestioned that they are proper parties, it is evident that in these possessory actions tenants under lettings in possession should be-joined in the action. The only point, however, urged upon this-appeal is as to the effect of the defense of a former action pending upon the right to enter the judgment appealed from.

The summons and the complaint in the action thus referred to-were dated before the plaintiff therein had acquired ady right to. commence such action; and, if we take the date of'the commencement of the action to have been at 'the time of the service of the summons, then as the summons in this action was served on the same day as the summons and complaint in the other action, and as the law does not regard fractions of a day, the judge was not precluded, upon this action being first ready for trial, from proceeding to judgment. Moreover, when this action was commenced there was no action pending against the plaintiff, because she was not served with the summons in the other action until after she had commenced her own by the service of a summons on certain of the defendants.

We think, therefore, that, as it appeared upon the trial that a prior action was not pending between the same parties, the defense was not made out, and judgment was properly awarded to' plaintiff.

The judgment appealed from should, therefore, be affirmed,, with costs and disbursements.

Follett, J., concurs.

Van Brunt, P. J.

— The plea contained in the answer of the defendant Travis that, at the time of the commencement of this action, there was an action pending in this court brought by this appellant against the other parties to the action, with the exception of such as were husbands of some of the tenants in common,, and also against the tenants in possession, and that certain parties (naming them) were tenants in possession, and were not parties to this action, was a good plea in abatement. Parties in possession of property sought to be partitioned are not only proper parties, but necessary parties, because without their presence their rights cannot be adjudicated upon in such a manner as shall be binding upon them.

A party in possession, with an unrecorded deed, by his possession gives notice to all the world of the existence of his claim; and if there is any outstanding claim by any person in possession, the only way in which it can be cut off is by making him a party to the action where the premises are sought to be partitioned and sold. Therefore, if there are parties in possession, and such parties are not made defendants in the partition action, it is a defect which any of the defendants have a right to avail themselves of; and if the defendants in this action had proven that tenants in possession were not made parties, it would have been the duty of the court to have refused a decree until those parties had been brought in, so that they could be bound by it. But the difficulty with the defendants’ position is that, although they have alleged in the answer, dhd requested the court to find, that certain tenants in possession were not made parties, there is no proof of the fact, and it does not appear to be admitted anywhere in the record. The claim in respect to the husbands-of some of the tenants in common being necessary parties cannot be supported, because a husband has no interest whatever in the real estate of his wife unless she dies possessed of the same, having had living issue of the marriage.- For the failure to prove the fact stated in the plea in abatement, it is hecessary to concur in the opinion of Mr. Justice O’Brien for affirmance.


text:
    The People, Resp'ts, v. Burton C. Webster, App'lt.

      (Supreme Court, General Term, First Department,

      Filed March 17, 1893.)

    1. Homicide—Manslaughter.
    On the trial of an indictment for murder, the evidence for the defendant showed that the deceased had insulted the woman with whom defendant lived as his wife; that deceased came to their rooms and struck defendant, who followed him hack to his room, and on his turning round and raising a cuspidor defendant drew his revolver and shot him. Held, that upon defendant’s own testimony a conviction of manslaughter in the-first degree was proper.
    3. Same—Evidence.
    In such case, where it is claimed that defendant was justified in calling deceased to account for insults to the woman whom defendant claimed as his wife, though no ceremonial marriage had been performed, it is proper for the People, on cross-evamination of defendant, to show what the relation of these parties had been in the beginning.
    3. Same—Photographs.
    A photograph which defendant admits to resemble the deceased is admissible in evidence.
    4. Same—Intent—Charge.
    In response to a request to charge that if the jury had any reasonable doubt of intent to kill, they should not convict of murder in any degree, the court so charged and added that they could find that intent from the-nature of the weapon and the manner of its use. Held, no error.
    5. Evidence—Cross-examination of witness.
    Questions put to a witness for defendant, on cross-examination, as to-her intimacy with defendant’s wife, and as to her opium habits, are competent on the question of bias of the witness, and as to the weight to be given to her statement as to what occurred at the time of the shooting.
    6. Criminal law—Harmless errors.
    Where the verdict is supported by the version given by defendant, it will not be disturbed on account of technical errors in the admission or exclusion of evidence as to colla*eral matters, or in comments or criticisms made by the judge during the trial.
    Appeal from judgment of the court of oyer and terminer, entered on verdict finding defendant guilty of manslaughter in-the first degree.

      William F. Howe, for app’lt; De Lancey Nicoll, Dist. Atty.,, (Henry B. B. Stapler, Asst. Dist. Atty., of counsel), for resp’ts.
   O'Brien, J.

The indictment charged the defendant with murder in the first degree, in having, on the 2d day of August, 1891 shot and killed one Charles El Goodwin. The killing was admitted, but, as a defense, the act was claimed to have been justifiable homicide. The issue thus joined, upon evidence presented by the People and the prisoner, was resolved by the verdict of the jury in finding the defendant guilty of the crime of manslaughter in the first degree; and it is from the judgment entered upon such verdict that this appeal is taken.

The deceased was a bachelor, thirty-five years of age, engaged in the wholesale dry-goods business at White street, in the city of New York. On the 1st of January, 1891, he took possession, under a lease, of an apartment, consisting of a library or sitting-room, bed-room and bath-room, on the third floor of the dwelling known as the “Percival Apartment House,” on West Forty-second street. About May 1st the prisoner came to the Percival, bring with him a woman known as Evelyn Granville, who occupied with him an apartment on the same floor with that of the deceased ; the distance from the door of one to the door of the other being about fifty-nine feet On the afternoon of August 2d, which was Sunday, the deceased left his apartment, and, in company with his brother and his brother’s wife, went to the Grand Central Depot, where the latter took the six o’clock train for the west. On the part of the People, it is claimed that the testimony showed that the deceased, upon' returning to his apartment, took off his coat, and hung it on the back of a chair, and then sat down at his writing desk, and commenced the writing of a letter, in the midst of which he was interrupted by a knock at the door, in answer to which he arose, and went to the door and opened it, and was confronted by the defendant, who shot him ; that he staggered back, and stumbled or fell upon, and broke, a cuspidor, which had been previously broken and mended, which stood immediately behind him when he opened the door, which opened in such a way as to make this position the necessary position to take in opening it; that he fell backwards, and was found by the husband of the house-keeper, who hastened to the apartment immediately upon hearing the noise of his fall, lying outstretched on his back, his feet within three or four feet of the point where he must have stood when he opened the door, and his body occupying the position which it would have occupied had the deceased been shot when opening the door, and had staggered backward, falling over the cuspidor, which was found broken at the feet of deceased, but in its usual place. This theory, it is claimed, is supported by the facts that a letter was found lying upon the writing desk, fully written for three pages, and broken off in the middle of an unfinished word; that the pen was found lying on the desk, and the ink bottle open; the pipe, half filled with tobacco, and with the ashes still in the pipe, lying on the desk; that the direction of the bullet indicated that it was shot from a pistol held directly in front of the abdomen of the deceased, which would have been the necessary position of the defendant had the deceased been shot when he opened the door.

In his dying declaration, the deceased stated to the detective; S11 was sitting at my desk, when a man I never saw before, by the name of Webster, came and shot me; ” and to Dr. Winsor he said: “ I was sitting at my desk, writing a letter; there was a knock at the door; I got up to answer it, and was confronted by Webster, who shot me; lie must have had a grudge against me.” To a question by the same Witness, as to how the cuspidor was broken, the deceased said it was broken by his stepping on it when falling; stumbling over it.

It further appeared that the prisoner, in escaping from the Percival, was met by the janitress and her husband just after the latter’s attention had been attracted by the noise of the heavy fall of deceased; that he was dressed for the street, and that they did not observe anything about his appearance that would indicate that he was excited; that he looked just as he always looked, and that he remarked to the janitress, before leaving: “ That man Goodwin is hurt. Get a doctor." Thus, without further explanation of his act in shooting the deceased, or attempted justification of the same, he escaped, and remained in hiding -five days. The only living witnesses who claimed to have been present at the shooting were the defendant, Evelyn Granville, and one Fanny Romaine, a servant on the premises.

The defendant testified that the woman known as Evelyn Gran-ville was his wife; that he went to live with her about January 1, 1891, when she had an apartment on the corner of Sixth avenue and Thirty-fifth street, where she was supporting herself by pawning her jewelry, and that he continued to live with her, without any marriage ceremony having been performed, down to the time of the killing of the deceased; that before the first trial of the defendant a marriage ceremony was performed between them at the Tombs; that defendant had been previously married in Illinois to one Charlotte Picard, and ceased to live with her seven months after their marriage.

In his defense, the defendant testified, in substance, that for some months prior to the shooting, while this woman, whom he claimed to have been living with as his wife, by virtue of a civil contract entered into between them, without witnesses, was in a delicate condition of health, the deceased frequently made indecent assaults upon her while the defendant was absent, and when she was alone an 1 unprotected; that on the day of the shooting he found his wife lying on the lounge, and with her the servant; that his wife complained that she was afraid to cross the hall to her bathroom ; that quite often, when she went out to go to her bathroom, the deceased would appear at the end of the hall in a seminude condition, exhibiting his person to her, and that he was then in the habit of making indecent remarks. He further testified that she told him that one Macfarland had told her that he had seen the deceased at the far end of the ball; that he came there naked at one time, and at another time was there with just his shirt and his pajamas on, and had inquired from Macfarland if the defendant was in his own room.

What then happened is thus recounted by the defendant: “We were sitting there, laughing and talking, I think about an hour; perhaps more than an hour. A knock came at the door. I can best describe it as calling it a nervous knock. The chambermaid started to get up. She was fanning my wife, and I told her I would go to the door. I went to the door, and opened it? and Goodwin stood before me. He made some remark : 1 It is you, is it ?’ or 1 Damn it, it is you,’ and struck at me ; and I think he grazed my nose. I stepped back, slightly. He went from the hall in the direction of- his room, and I followed him, and when I got to his door, I might have been slightly in his room, slightly outside. I might have been upon the threshold. I cannot state. When I got there he was confronting me. I told him, I said, ‘ Goodwin, this thing has got to stop.’ He had been hounding me and my wife for a long time. She had never encouraged him in any way. She had done nothing at all to warrant him in persecuting her. I complained to the landlord of him. I could not leave there, because I had a lease. He stood there in front of me. He raised his cuspidor over his head. I heard a voice behind me, my wife’s voice: ‘ Look out, Burt! Look out, Burt 1 he will kill you.’ At the time he had this held so (illustrating), and impulsively, knowing that I was armed, drew my pistol, and shot him. * * * By the court: Q. State what you did after you fired the shot. A. I hardly realized what had happened, at the moment. When I next looked at Goodwin, he was on the floor. I told him I was sorry it happened, but he brought the whole thing on himself; that I had done nothing to him ; I'had never sought him; he had been the aggressor from the beginning to the end. I told him I -would go at once and get him a doctor, and send him assistance. I went from there to my room, put on my coat, and went downstairs. There were three parties in the hall at the time, I think. I spoke to one of them, and told him to go at once for a doctor for Goodwin; that he was hurt”

In this testimony defendant was corroborated by the evidence of the two women, Evelyn Granville and Fanny "Romaine, who claim to have been eyewitnesses of the shooting.

Appellant insists that, notwithstanding the conflict in the testimony, taking it in its entirety, it shows that the jury must ha-Ve disregarded the evidence in arriving at their verdict, and must have entirely ignored the testimony showing that the defendant acted in self defense. We cannot "assent to this view, because, if the jury had credited the evidence presented by the People, and the inferences which could have been justly drawn therefrom, they might well have found the defendant guilty of the crime of murder in the first degree. How far the People’s evidence was destroyed or impaired by that presented by the defendant we shall have occasion to speak of when we have disposed of the exceptions which appellant insists present legal errors committed on the trial which would require a reversal of the judgment, irrespective of the question of the verdict being against the weight of evidence.

The exceptions taken in the cross-examination of the defendant, as -a witness in his own behalf, with respect to his relations and conduct with Evelyn Granville prior to his marriage, were certainly within the discretion of the trial judge, in view of the claim made, that, in resenting the insults offered to his wife, he was justified in calling the deceased to account, and that the encounter with the deceased which resulted, and which placed defendant in apprehended danger of great bodily harm from the cuspidor in the hands of the deceased, justified the shooting, as an act of self defense. Throughout the trial the prisoner placed great stress on establishing that the relation between him and Evelyn Granville was that of husband and wife; and it was, therefore, competent on the part of the People to show what in the beginning was the relation between these parties, in view of the admitted fact that no marriage ceremony had ever been performed between them prior to the shooting, and, as the question was an open one, whether or not it was a common law marriage or a meretricious relation, the cross-examination of the defendant, as to whether such relation was marital or meretricious, was entirely proper.

Another exception relied upon relates to the introduction of a photograph. The record shows that the defendant was handed the photograph and was asked: “ Question. Is that a just picture of the man you met there? Answer. That somewhat resembles him,” The photograph was then offered in evidence, and was objected to as “incompetent, immaterial and irrelevant.” It cannot be seriously claimed that photographs are not admissible, because the rule permitting such evidence is founded upon the same principle that applies to diagrams or maps, which, upon proper proof as to their accuracy and correctness, are competent. The objection made, therefore, that it was incompetent, immaterial and irrelevant, was not a good objection. As- said in Murphy v. People, 63 N. Y., 595: “The objection was general, and no ground of objection was specified. If objection had been taken to the mode of proving the fact, other proof might have been given, and the objection been obviated. In the absence of an objection of this kind, it must be assumed that the question intended to be raised by the objection made was as to the competency or proof of the fact to which the question related, and not to the mode of proving it. * * * The authorities on the general proposition that the objection now taken should have been specifically made on the trial, in order to be available on error, are decisive."

Other errors assigned are directed to propositions of law in the charge of the learned trial judge. Considered as a whole, we think the charge was a fair and impartial presentation of the facts, bearing upon the claims of the prosecution, the defense presented by the prisoner, and the law relating to the different degrees of murder and manslaughter. The exceptions were few, and will be briefly referred to.

The first was taken to the rule of law laid down by the judge as to the weight to be given to evidence of good character. Any error into which the court, in its charge, may have fallen in this respect, was entirely cured, when its attention was called to it, by charging the very request asked for by the defendant’s counsel

The court, in response to an inquiry from the jury upon the question of intent, said: “You must find a design to kill. It is only proper I should state to you that that design to kill may be found from all of the surrounding circumstances. A man is presumed to intend or design what his act is liable to perform. If a person fires a pistol into the body of another, from that fact alone the jury may find the intent. You must find the intent, 'the design to kill, but it is not necessaiy that a person killing another should announce beforehand he does intend to kill. In order for you to find that intent, you must be satisfied from all the surrounding circumstances. The act itself, the way it has been committed, the weapon that is used, furnish the design or intent to kill, to find murder in the second degree.

“ Mr. Howe: Will your honor permit me to except to that portion of your charge, and I ask you now to charge the jury, in response to their question, that, if they have any reasonable doubt of intent to kill, they should not convict of murder in any degree ?

“ The court: I so charge, and repeat, as I have already said to you, you can find that intent from the nature of the weapon, and the manner of its use.”

The exception to this we do not regard as well taken ; for all the text writers, supported by the decisions of our court of appeals, hold to the view that the intent could be inferred from the character of the act. Thus Bishop: “It is a rule of criminal evidence that a man is presumed to intend the natural, necessary and even probable consequences of what he intentionally does.” 1 Bish. Crim. Law (7th ed.), 734. See, also, Starkie Ev. (10th ed.), 848; 1 Phil. Ev., *632; People v. Conroy, 97 N. Y., 77; Foster v. People, 50 id., 609.

It will thus be seen that the exceptions taken to the charge of the court were untenable, and the two propositions requested by the defendant were charged.

Certain exceptions taken upon the cross-examination of a witness for the defendant, Eannj? Romaine, as to her intimacy with Mrs. Webster and her opium habits, we do not regard as good, because it was competent, upon the question of the bias of the witness, to show her exact relation with the defendant’s wife, and the fact as to whether or not she was under the influence of opium would affect to some degree the weight to be attached to her statement of what occurred at the time of the shooting. It was a matter within the discretion of the judge, and we do not think that in this instance it was abused.

The most serious exceptions presented by this record are those having reference to criticisms made during the progress of the trial, when the learned justice was passing upon the admissibility of the evidence, and the introduction over defendant’s objection of evidence to prove what the servant, Fanny Romaine, had told a witness with respect to going to Roster .& Bial’s, and to contradict Fanny Rom nine’s testimony as to the extent of her habits in taking opium. We think it clear that these matters, upon which the witness Romaine was cross-examined, were collateral matters, and that, under the rule by her answers given upon cross-examina-: tion the People were bound. As said in Stokes v. People, 53 N. Y., 173: “Upon cross-examination the prosecution had the right, for the purpose of impairing the credit of the witnesses, to ask questions as to those collateral matters, but, having asked, and obtained answers, must abide by the answers given. Other witnesses could not be called to prove such answers untrue.”

In People v. Ware, 29 Hun, 473, affirmed 92 N. Y., 653, it is said: “ The rule- upon this subject has frequently been made a matter of consideration by the courts, and it is now well established that to entitle the party interrogating the witness in this manner by way of cross-examination to introduce evidence to contradict his statements, the cross-examination must be directed to a material inquiry in the case, or to evidence establishing a hostile or unfriendly bias against the party m the mind of the witness.”

See also, Kirkpatrick v. Railroad Co., 79 N. Y., 243; Chapman v. Brooks, 31 id., 87; Carpenter v. Ward, 30 id., 243.

We think this rule was violated by admitting this evidence to contradict Fanny Romaine on collateral matters, involving, as it did, the question whether she had or had not, weeks prior to the shooting, slept in Mrs. Webster’s apartment, and whether she had not, while she lived at the Percival, been in the habit of taking opium, and had not told Mrs. Wade that, if she was deprived of opium, it would kill her. The question, however, to be determined is whether this was a prejudicial error The Criminal Code requires, § 542, that “ after hearing the appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.” The witness Romaine had testified to the taking of opium; she had admitted her intimacy with Mrs. Webster; and under these circumstances we do not think any serious prejudice resulted to defendant in the eyes of the jury, who were aware before such testimony of the fact that the witness Romaine was in the habit taking opium during all the time that she had been in the Percival flats, and had been intimate with Mrs. Webster. The additional circumstance about Hosier & Rial’s is not serious enough to justify a reversal of the judgment.

With respect to the comments or criticisms of the learned justice, which it is claimed were made during the entire trial, including the charge, while there was some slight justification growing out of the necessity of explaining the reasons for his rulings, we think they were carried to too great an extent; and what was said in the case of Sindram v. People, 88 N. Y., 202, in speaking of comments made upon testimony in the charge of the judge, is pertinent here : “ It is desirable that the court should refrain, as far as possible, from saying anything to the jury which may influence them, either way, in passing upon controverted questions of fact; and perhaps comments on the evidence might be carried so far as to afford ground for assigning error.”

The reason assigned by the judge himself, that these comments and criticisms were required to explain his rulings, coupled, as it was, during the various stages of the case, by the emphatic statement of the court that the jury were the judges of the controverted facts, and that the opinion of the court was in no way to affect them, we think destroyed any impression which otherwise guch •comments might have created in the minds of the jury adversely to the prisoner; and our conclusion is that, having in view the rule laid down for our guidance by the Penal Code, we should not resort to what may be a technical error for the purpose of reversing a judgment which, upon the whole case, does not seem to do any injustice to the defendant.

Upon the entire record, we think it apparent, whether technical error in the admission or exclusion of testimony may appear, or in the comments or criticisms made by the judge during the trial, that it cannot be contended that such could have been injurious to the rights of the defendant, in view of the fact that the jury, by their verdict, accepted the facts as presented by the defendant and his witnesses, according to them full faith and credence, and adopting the most favorable view possible upon such facts. If we give little or no weight to the People’s case, which, as we have already said, would have justified a verdict of murder in the first degree, and consider the testimony offered by the defendant, it is fairly susceptible of but one conclusion, and that consistent with the verdict, holding the defendant guilty of at least manslaughter in the first degree. The Penal Code, § 179, defines homicide as “ the killing of one human being by the act, procurement or omission of another.” Such homicide is manslaughter in the first degree when committed with a design to effect death, “ either (i) * * * (2) in the heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon.” Section 189. At the time of the killing the defendant was within his own apartment, within the precincts of his own home, where he had a right to be, in an attitude of defense, which he had a right there to assume against the onset of defendant, a tresspasser therein; and this circumstance alone is most potent in determining the question as to which one was the aggressor, and as to whether or not the shooting was without justification or excuse. As said by the learned trial judge in his charge: “Presuming that yOu believe Webster’s story, Goodwin, after he struck the blow, wanted to get awray. He did not stay there to continue the fight, dispute, or whatever there was, if there was any, but he left, and retreated to his own room. It is perfectly evident that Webster was perfectly safe if he stayed where he was, if he had wished not to take the law into his own hands. If any crime had been committed, he could have gone to the police magistrate, and called in the police. He, however, did not stay where he was, but followed Goodwin. He followed Goodwin to his own room. Goodwin went into his own room, and defendant followed him to the doorway. So far as it appears, Goodwin was unarmed, and, being in his own room, he was. justified in using force to prevent any assailant from coming to his room, and assaulting him there. Webster was armed with a pistol. Geritlemen, I leave it to you to say who was the assailant, and who was acting in self defense; Goodwin, with nothing but a cuspidor in his hand ; Webster following him into his room with ■a pistol in his pocket. I leave it to you to say, from that story, as told by Webster himself, whether Webster was justified in taking out his pistol from his pocket, and killing Goodwin, without attempting to get around the door, the side of the door; without retreating; without saying, 1 Stop, or I will fire;’ without giving him warning. Was what he did necessary to protect his life or person from serious injury? If you believe that it was, if you believe it was self defense, that he was justified under the statute, as I have stated, then it is your duty to say by your verdict that Webster did no wrong when he shot and killed Goodwin, and he should go forth a free man.”

That this view as to the obligation resting upon the defendant to avoid the necessity of taking human life was thus correctly presented to the jury is shown when we consider the cases referring to this subject. Shorter v. People, 2 N. Y., 195, which has been frequently referred to, and cited with approval, holds (head note:) “ One who is without fault himself, when attacked by another, may kill his assailant, if the circumstances be such as to furnish reasonable ground for apprehending a design to take away his life, or to do him some great bodily harm, and there is also reasonable ground for believing the danger imminent that such design will be accomplished, although it may afterwards turn out that the appearances were false, and that there was in fact no such design, nor any danger that it would be accomplished. But this principle will not justify one in returning blows with a dangerous weapon when he is struck with the naked hand and there is no reason to apprehend a design to do him great bodily harm. Nor will it justify homicide when the combat can be avoided, or where, after it is commenced, the party can withdraw from it in safety before lie kills his adversary.”

And in People v. Sullivan, 7 N. Y., 396, it is said (headnote): st Where one believes himself about to be attacked by another, and to receive great bodily injury, it is his duty to avoid the attack, if in his power to do so; and the right of attack for the purpose of defense does not arise until he has done everything in his power to avoid its necessity.”

Section 205 of the Penal Code defines “ justifiable homicide,” so far as applicable to the case at bar, as follows :

“ Homicide is also justifiable when committed in the lawful defense of the slayer; * * * when there is reasonable ground to apprehend a design on the part of the person slain * to do some great personal injury to the slayer, * *•* and there is imminent danger of such design being accomplished. ■***’!

In finding the defendant guilty of manslaughter in the first degree, the jury took the view of the evidence most favorable to defendant. They accepted his story, and that of his two witnesses, as to his anger being aroused by the complaints of Evelyn Gran-ville ; by the immediate presence thereafter of the deceased at his $oor, in pursuit of her; by the blow in the face then alleged to have been received; and that, on following the deceased for the purpose of remonstrating, he was greeted, as alleged, by a curse from the deceased, who stood with a cuspidor in his hands, which, though insufficient to justify defendant in entertaining apprehension of great bodily harm, might be regarded as the first step in an affray invited by a man who had insulted a woman under his protection, and that, thus heated with passion, he drew his revolver, and, with no intent to kill, fired at the deceased. The testimony shows that the deceased was the pursued, and not the pursuer ; that he had retreated into a place where he had a right to defend himself against the further pursuit of the defendant; that, when the defendant stepped upon the threshold of the abode of the deceased, the latter was standing six feet away, with a raised cuspidor, which the jury had a right to assume was an attitude of defense against an expected attack from his pursuer. Even though the deceased had intended to throw the cuspidor, this-could have been avoided by stepping one side, or leaving the room. But instead of this, and without making any effort to avoid the attack, though in his power to do so, the defendant took from his pocket a pistol, which, without warning or intimation, he fired into the abdomen of the deceased, in whose hands the cuspidor remained, still unthrown. We agree with the counsel for the People that the evidence presented by the defendant was not sufficient to show that the shooting was done in self-defense or in reasonable apprehension of bodily harm which could not be avoided, and that it was only by taking the most favorable inference from the testimony of defendant’s own witnesses that the jury reached the conclusion that the defendant was not guilty of murder in the first degree, but was guilty only of manslaughter. Had the defendant been convicted of murder in either degree, there would be greater force in the argument made, that the errors pointed out were prejudicial to defendant.

It is this conclusion that the verdict was just, and the conviction that is forced upon us, from a reading of the evidence, that the defendant should not entirely escape the consequences of what, it is apparent, was a wanton and deliberate killing of a fellow man, that induces us to disregard, as we are required to do, the technical errors which may appear in the record ; it being apparent, upon the testimony here produced, and from the character of the verdict, that such errors did not affect the substantial rights of the defendant. We are, therefore, of opinion, in accordance with the section of the Criminal Code to which we have already referred, which requires that we should give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties, that the judgment should be affirmed.

Yan Brunt, P. J., and Folleto, J., concur.


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    Lena Finelite, App'lt, v. Alexander Finelite, Resp't

      (Supreme Court, General Term, First Department,

      Filed March 17, 1893.)

    New trial—Newly discovered evidence.
    In an action brought to substitute as grantee the plaintiff, in the place of defendant, her son, in a deed made by her parents, it" was alleged that plaintiff's name had been fraudulently erased by defendant, but the court found that plaintiff consented to the erasure and substitution,, after which the deed was duly acknowledged. A motion for a new trial was made on the ground of newly discovered evidence, the affidavits used alleging that a brother of defendant had made statements in affiant's presence inconsistent with his testimony on the trial, and had shown a disposition hostile to his mother, and had said that he would take the property from her “ even if he knew he would have to go to state prison for it.” Held, that the trial judge properly denied the motion.
    Appeal from, an order denying a motion for a new trial on the ground of newly discovered evidence.

      George W. Stephens, for app’lt; Alex. Finelite (Abram, Kling, of counsel), for resp’t.
   O'Brien, J.

This action was brought to substitute as grantee the plaintiff in the place of the defendant in a certain deed made by Jacob Finelite and wife. It was alleged that a deed from Jacob to plaintiff had been placed in the possession of the defendant for safe-keeping, and that he fraudulently erased the plaintiff's name as grantee in the deed, and placed his own instead and caused the same to be recorded. This being denied by the defendant, the issue was presented and tried, resulting in the court’s finding as a fact that although the original deed was made out to the plaintiff as grantee, she and the grantors consented to her name being erased and that of the defendant substituted as grantee, and that, after such erasure and substitution, it was duly acknowledged and recorded. The number of motions subsequently made upon the part of the plaintiff to open defaults and to change conditions imposed upon granting an extension of time to serve a case upon appeal, and for various other purposes, presents a voluminous and somewhat unusual record. It is unnecessary, however, for us to recite in detail all the various steps taken by the plaintiff subsequent to the trial to evade the conclusions reached by the trial judge, and seeking, in some other form, to present for review his decision, all of which were rendered futile by plaintiff’s failure to comply with the terms upon which an appeal was allowed, finally resulting in a dismissal of the appeal The trial of_ this action took place in February, 1891, and these several motions were from time to time presented during the year following, and among the others an application for leave to renew the motion, which had been denied, to relieve the plaintiff from certain conditions. This application was disposed of on the 29th of February, 1892, by an order which, upon condition of the withdrawal of her notice of appeal to the general term, permitted the plaintiff to make the motion for a new trial on the ground of newly discovered evidence. This was subsequently made before the judge who tried the case, resulting in a denial of "the motion, and it is from, the order entered thereon that this appeal is taken.

The testimony which it is claimed the new witnesses would give was presented in the shape of affidavits upon the motion for leave to renew, above referred to, and the learned judge who heard that motion said: The statements made by the affiants, Margowski and Wilson, in their respective affidavits, appear to me to be most improbable.” their force and potency, when again presented upon the motion for a new trial, do not seem to have impressed the judge who tried the case, and who was in the best position to determine what effect, if any, they could have upon the conclusion reached by him.

One of these affiants, Margowski, made his affidavit on August 6th, and Wilson, in November, 1891; and no very satisfactory reason is given for the delajr in making this motion, the idea, seemingly, being, as shown by the motion made resulting in the order of February, 1892, that plaintiff was desirous of pressing her appeal, and it was only upon her being denied relief from the conditions imposed that this motion, upon newly discovered evidence, was resorted to. Were it not for the fact that the judge, in his order, gave leave to make the motion upon newly discovered evidence, we should be inclined to think that the plaintiff had waited too long.

Assuming, however, that there was no laches, the question remains whether or not the statements made by the new witnesses wore of such a character as to be credited, and if so, whether they would have been likely to change the result. The statements of the affiant Margowski are directed to showing that Abraham Fine-lite, who was a witness on behalf of his brother, had, in his presence, and that of the defendant, made statements which were inconsistent with the testimony which such witness gave upon the trial, and tending to show that he had gone into an arrangement with the defendant to cheat the plaintiff out of the property which was the subject involved in the litigation.

The statements in the affidavits of Wilson are directed against the defendant, and purport to rehearse a conversation between himself and the defendant, showing the defendant’s hostile disposition to his mother, which took the shape of an assertion by the defendant that he would take the property away from her, “ even if he knew he would go to state’s prison for it.” It will thus be noticed that these affidavits are directed towards impeaching the credibility of the statements of the defendant and one of his witnesses upon the stand. From the answering affidavits as to the character of these affiants, and their attitude towards the defendant, it may well be questioned whether their statements would have any such effect.

But whatever force such testimony might have, as showing a disposition upon the part of the defendant to prevent the plaintiff retaining the title to the property, this in no way throws light upon the situation which was presented when the parties met upon the day when it was claimed the erasure was made, and from which the trial judge reached his conclusion that the plaintiff’s contention had not been sustained. In his opinion he says: “ The defendant, Alexander, drew the deed, * * * and took it to his mother, and had a conversation with her respecting it ; other members of the family being present. What occurred on that occasion is decisive of the case.”

The affidavits of the witnesses, which it is claimed present newly-discovered evidence, have, as stated, no direct bearing upon what occurred at that interview between the plaintiff and the defendant and the other members of the family. It is not claimed by either Margowski or Wilson that they were present upon that occasion, or that they knew anything about what then.occurred ; their statements being directed to show, as stated, that the defendant was disposed to assume a hostile attitude to the plaintiff, and to insist upon her not having the title to the property. The fact that he said he would accomplish this, even if he had to go to state’s prison for it, might, if his testimony was unsupported, have considerable weight. But where, as here, the whole case turned upon the interview between several witnesses, all of whom were examined upon the trial, the temper of the defendant’s mind, or the disposition of his brother Abraham to support him in his view that he should have the property, might not materially affect the conclusion to be reached by the trial judge after hear® ing the testimony of all the witnesses who were actually present at the interview. Whether it would or not could be best determined by the trial judge himself; and he, after an examination of these affidavits, has concluded that the motion upon this ground of newly-discovered evidence should be denied. We do not think that there is sufficient shown to justify our interfering with the disposition thus made by the trial judge, and we are of opinion that the order appealed from should be affirmed, with costs.

Van Brunt, P. J.—I am of the opinion that the motion should have been denied because of lachea. I also think that it was rightfully denied upon the merits. I concur.

Follett, J., concurs.


text:
    Charles Banks, Pl'ff, v. The New York Club, Def't.

      (Supreme Court, General Term, First Department,

      Filed March 17, 1893.)

    1. Corporations—Contract.
    An agreement made at a meeting of some persons interested in a corporation, that bonds should be issued to secure a loan, is not binding on the corporation, where there is no evidence that any of the parties had authority to bind the corporation in its corporate capacity, or that the agreement was ever ratified by the corporation.
    2. Same.
    Even if an agreement to issue bonds to secure a debt was valid, the debt would not be one which arose on a sealed instrument.
    3. Evidence—Harmless error.
    Error in the admission of testimony which was only intended for the jury cannot affect the final ruling of the court, where the case was never submitted to the jury.

      Exceptions ordered heard in the first instance at the general term.

      J. C. Coleman (J. Adriance Bush, of counsel), for pl’ff; Larned & Warren (Ira D. Warren, of counsel), for def't.
   Van Brunt, P. J.

The court is unable to see reason the exceptions in this case were ordered to be heard in the first instance at general term, there being no difficult or doubtful questions involved in the complaint. This action is brought for loans of money made between the 1st of February, 1875, and the 14th of December, 1877, and was commenced on the 12th of December, 1890. The plea, among others, of the statute of limitations, was interposed. The evidence of the plaintiff tended to show the loan of the money. There was no agreement as to when it was to be paid, although there was evidence upon the part of the plaintiff that it was understood and agreed, at a meeting of some persons interested in the defendant,' that bonds should be issued for the amount- of the loan, and that the $4,500 involved in this action was loaned on that understanding. But there is no evidence that any of these parties who entered into that agreement was authorized to bind the defendant in its corporate capacity, or that it was ever ratified by the defendant, even if such an agreement could possibly have prevented the statute from running. It was claimed upon the part of the plaintiff that it was agreed that the club was not to pay until it was able to do so, until within six years from the date of the trial; but an examination of that evidence shows that at this meeting of these persons interested in the club (whether officers of the club or not the record does not show; it certainly was not a meeting of the managers of the club), it was stated that the claim should not be asked for until the club was in such a condition. This, clearly, was no agreement at all. It seems to have been some loose talk among persons who were interested in the club.

The idea which is advanced that, if a bond was agreed to be delivered (which is not established), therefore, the bond being a sealed instrument, the debt arose upon a sealed instrument, has no foundation whatever.

It is claimed that error was committed by the court in the exclusion and admission of evidence which may have either prejudiced or influenced the jury. But it is difficult to see how any testimony which was only intended for the jury can affect the final ruling of the court, when the case was never submittéd to the jury, and, therefore, there was no jury to be influenced.

The exceptions should be overruled, and judgment ordered for the defendant, with costs.

O’Brien and FvLlett, JJ., concur.


text:
    Hector M. Hitchings, Resp't, v. The St. Louis, New Orleans & Ocean Canal & Transportation Co., Impl'd, App'lt.

      (Supreme Court, General Term, First Department,

      Filed March 17, 1893.)

    I. Corporations—Indorsement op note by—Ratification.
    In an action on a note against the payee, a corporation, as indorser, it appeared that C , defendant's president, indorsed the note in its name to 5., who returned it to C. after indorsing it, and 0. then indorsed it individually to plaintiff; that after U.’s first indorsement three of the five directors of defendant, at an impromptu meeting, without any notice to the other directors, passed a resolution that the making and indorsing of certain notes by the president in the name of the company, through and to 5., be and are hereby approved. C. testified that he paid defendant all or nearly all of the proceeds of the note. Held, that a verdict for plaintiff would not be disturbed.
    3. Same—Evidence.
    In such case, C.’s checks, which to a considerable extent seemed to contradict the testimony of defendant’s treasurer, in reference to the various transactions referred to, are admissible in evidence, although not directly connected with the transaction in issue.
    U. Same—Bona fides.
    Plaintiff’s good faith in accepting the note being challenged, he had a right to put in evidence declarations of defendant’s president, which tended to show good faith, although they were made long after he indorsed the note to plaintiff.
    Appeal by defendant, an insolvent corporation, from a judgment entered upon the verdict of a jury in an action upon a promissory note.

      George Walton Green, for app'lt; H. M. Hitchings (James M. Smith, of counsel), for resp't.
   Van Brunt, P. J.

This action was-brought upon a note made by John Stilwell & to the order of the defendant company, which was indorsed by P. J. Claassen, the president of the defendant company, in its name, and by James A. Simmons and P. J. Claassen individually, and by said Claassen transferred to the plaintiff on the 21st March, 1890, before maturity. The answer was, substantially, a general denial. It was claimed upon the trial, by the defendant, that the president of the defendant had no authority to indorse promissory notes for it. In support of such authority a resolution duly passed by the defendant’s board of directors on the 2d of October, 1889, was offered in evidence, by which it was resolved, “ That all the banking business for and in behalf of this company be, and is hereby, vested in the president, Gen. Peter J. Claassen, who is hereby authorized to sign all checks, drafts, and monetary obligations, of any kind, against and for any bank deposits, wheresoever made, in the company’s name,” and also a resolution claimed to. have been passed on the 30th of December, 1889, by which it was “ resolved, that the making of certain notes by the president of this company in the name of the company, through and to James A. Simmons, and also the indorsing by the president, in the name of the company, of certain notes through and to James A. Simmons, be, and they are hereby, approved.” The plaintiff also examined, said Olaassen as a witness in his behalf, and Olaassen testified that he gave a check to the canal company for the proceeds, or near the proceeds, of that note, and, again, that he knew he gave the proceeds of that note to the canal company, and that, after the discount of the promissory note by him, he paid out the note to the plaintiff. The plaintiff also introduced in evidence the declarations made by Olaassen to him at the time of the receipt of the note. The introduction of this testimony was duly objected to, and the objection overruled, and defendant duly excepted. The case having been submitted to the jury, and a verdict rendered for the plaintiff, and a motion made for a new trial having been denied, from the judgment and order thereupon entered this appeal is taken.

It is probably true that the first resolution above referred to did not authorize indorsements of commercial paper by the president of this corporation on its behalf, as it would seem that the authority given by that resolution was to sign checks, etc., against any bank deposits which might stand in the company’s name, and that this was the extent of the authority conferred by that resolution. It is also urged that the second resolution was no ratification of the indorsement already made, because there was no legal meeting of the board. It is to be observed, in passing, that it is claimed by the counsel for the appellant that this resolution was allowed in evidence against the objection of the defendant that there was nothing to show a properly called meeting. But we have examined the case in vain to find any such objection spread upon the record: At the time the resolutions were offered, it appeared that they were taken from the minute books of the corporation. It is true that a general objection was taken to their admission, and the objection overruled, and the resolutions were read. But the record also contains an admission by defendant’s counsel that, if the witness who was then being examined stated that they were copies, they might go in, and the witness thereupon testified that they were copies.

Subsequently, upon the cross-examination of the witness producing the resolutions, it appeared that the second resolution was passed at what was called an “ impromptu meeting,” three directors being in the office, and without any notice to the other two directors the resolution was passed. The weight to be given to that resolution was, therefore, a question which was to be determined during the progress of the trial. The defendant’s counsel asked the court to charge the jury that a board of directors had no authority to pass a vote authorizing the use of corporate indorsements without notice to each member of the board at which such vote was passed.' The court said: “ That is the general rule, but you may take into consideration the course of dealing of a particular corporation. With that qualification I charge the proposition to which statement of the law the defendant took no exception. There seems, therefore, to have been no errors committed upon the part of the court, either in the admission of the resolution in question, or in the submission of the question to the jury, which are raised by any exception taken by the counsel for the defendant.

There is also, in the case, positive evidence of the president of this corporation that he discounted the note, and that the corporation received the money therefor, which, if the jury believed,, made the president a bona fide holder of the note, and he could transfer it to anybody to whom he might see fit. In connection with- this testimony a certain check drawn by the witness on Keene & Co. was shown to him. He testified that he could not say positively that that was the check he gave for the note, but it looked to him that it was a check he gave on account of the proceeds of the note, whereupon said check was offered in evidence without, objection. Subsequently the plaintiff’s counsel offered some other-checks drawn by Claassen on Keene & Co. to the order of one-Bailey, the treasurer of the defendant, which were objected to as not being properly proved; that they simply showed that they were checks drawn by Claassen on Keene & Co., and had no connection with the transaction in issue, which objection was overruled, and at a subsequent stage of the case, after additional testimony had been taken, the checks were put in evidence without, objection.

The only point which is now presented by the appellant is that the check which Claassen thought he might have used with which to discount the note bears no official stamp or evidence of cancellation, nor was there any evidence to show that it had ever been paid, and, therefore, it was error to admit it in evidence. But, as already seen, no such objection was taken at the time the check was offered in evidence, it being read without objection. As ttithe other checks, they seem, to a considerable extent, to have contradicted the testimony of Bailey, given upon the stand, in reference to his connection with the various transactions, and, therefore, somewhat affected his testimony in reference to his contradiction of' the evidence of Claassen that he had paid to the corporation the-money upon the discount of the note in question.

The only other objection which it seems necessary to notice is the claim that it was error to admit the declarations of Claassen, made-long after the alleged indorsement, as admissions against the defendant. We do not understand that such declarations were received as admissions against the defendant. The good faith of the plaintiff in the acceptance of the note was challenged upon the-trial, and he had a right to show the circumstances under which he-had taken the note, and the inquiries he made in regard to its-regularity; and these inquiries, made of the president of the-defendant, were certainly competent, if not as admissions upon the part of the defendant, as showing the bona fides of the plaintiff in the acceptance of the note.

The questions involved were submitted by the court to the jury without exception upon the part of the defendant, and we see no reason for disturbing the verdict rendered by the jury. The judgment and order appealed from should be affirmed, with costs.

O’Brien and Follett, JJ., concur.


text:
    Hermann Bolte, App'lt, v. August Fichtner, Executor, Resp't.

      (Supreme Court, General Term, First Department,

      Filed March 17, 1893.)

    1. Attorneys—Abandonment.
    _ Where a contract was made between attorney and client for compensation of the former for services to be rendered in an action against the latter, and after the client’s death the attorney neglected to inform his executor of the contract, and allowed him to retain other attorneys to defend the action. Meld, that the contract had been abandoned by the attorney and that he could not recover the amount agreed to be paid.
    3. Brokers—Commissions—Modification of agreement.
    In an action to recover commissions for the sale of real estate, brought against the executor of the deceased principal, the evidence of the proposed purchaser and a tenant in plaintiff’s office, differed as to the place of. the conversation relied on to modify the original contract between principal and agent and was directly contradicted by other witnesses. Held, not sufficient to establish a modification of the contract so as to sustain the agent’s cause of action.
    Appeal from a judgment entered on the report of a referee and from an order denying plaintiff’s motion for a new trial.

      Hermann Bolte (S. H. Stuart, of counsel), for app’lt; John A. Straley, for resp’t
   Van Brunt, P. J.

The plaintiff having presented to the defendant, as executor of Herman Schwannecke, deceased, his claim against the estate of said deceased for services rendered as attorney and counsel in a certain action brought against the deceased, and for a balance due for services rendered to him in and about the sale of a certain boarding house, such claim was disputed by the executor, and by consent was duly referred to a referee to hear and determine.

The referee found the .employment of the plaintiff as the attorney and counsel of the deceased in said action, and that the deceased agreed to pay the plaintiff for his services in said case $250, $50 in advance, and $200 when the case was ended, which terms were accepted by the plaintiff, and he appeared as such attorney .and counsel; that the testator died on the 5th of March, 1890, pending said action, and that in June, 1890, the plaintiff abandoned his contract, and neglected to perform the same, and therefore was not entitled to recover. As to the second claim, the referee found that the testator had entered into an agreement whereby he agreed to pay the plaintiff ten per cent if he would sell the testator’s place of business, 13 Oliver street, for $3,500 cash; that the plaintiff endeavored to find such a purchaser, but failed to do so, and the deceased died without the sale being-made ; and that no recovery should be had upon this cause of action.

The sole question presented upon this appeal is whether the referee’s findings are supported by the testimony. The fact of the employment of the plaintiff as the attorney and counsel of the testator, as found by the referee, was established by the evidence, and the terms of the contract were also established as stated by the referee. It appeared from the evidence in the case that at the time of the testator’s death the action in question had not been tried, and that on the 11th of June, 1890, the plaintiff wrote to the defendant, the executor of the deceased, as follows:

“ Dear Sir : I was retained and employed by the late Herman Schwannecke to defend the above entitled action. Mr. Chas. EL Lexow was attorney for the plaintiff, but I have quite recently-received a notice of the substitution of Mr. Hiram Ketchum as plaintiff’s attorney. I would be pleased to confer with you relative to the action, and ask you to call to see me about it.”

On the 18th of June, 1890, the plaintiff wrote another letter to the defendant, as follows:

“Dear Sir: In the action of Gregory v. Schwannecke, I have been served with a notice of motion for an order allowing this action to be continued against the executors of the defendant The motion is to be heard in city court, special term, June 20th, at 10 o’clock Á. M. The notice is addressed to me as atty. for defendant. and the representatives or successors in interest of Herman Schwannecke, deceased. How,, if you wish me to represent you in this matter, you must call at my office, and pay me a retaining fee. I wrote to you a few days ago about the case, asking you to call on me, but thus far have not seen you. The matter is important, and you should attend to.it at once.”

Prior to the 19th of June, 1890, other attorneys were employed by the executor, who, upon that date, wrote the following letter to the plaintiff:

“ Dear Sir: Your letter of the 18th of June 1890, to Aug. Fichtner, has been handed us. We have been retained by him, and will attend to the motion.”

On the 22d of October, 1890, the plaintiff transferred all the papers to the attorneys selected by the executor. Ho intimation whatever was given to the executor of the contract with the testator, and, although the plaintiff was present upon the trial of the action, it does not appear that he took any part therein. We think that the referee was clearly right in holding that the plaintiff, not having notified the executor of the existence of this contract, and allowing him to employ other counsel for the purpose of carrying on the litigation, and thus having abandoned the contract, cannot now claim the sum which it is alleged was agreed to be paid.

In respect to the other cause of action, the evidence showed that the deceased was desirous of selling his business for cash, and asked the plaintiff to sell it for him for $3,500 cash, promising to give ten per cent, of the amount if he would so sell it The plaintiff never found such a customer, but, if the testimony offered on his part is to be credited, he produced a customer who was willing to pay $2,000 cash, and secure $2,000 by notes and a mortgage, which offer the deceased accepted, and then refused to carry out. But we think that a reading of the testimony introduced to establish this accepted offer, being that of Blum, the proposed customer, and of White, a tenant in the plaintiff’s office, shows that it is utterly unreliable, and that no liability should be predicated thereon. Blum, in his testimony, places all j the interviews with the deceased and plaintiff at Koster & Bial’s ! saloon ; there all the conversations are had, and nowhere else,, ¡ while White is equally positive that all these conversations took place in the plaintiff’s office, and not at Koster & Bial’s. To say j the least of it, the testimony itself is suspicious upon its facej and, when we are confronted with this direct contradiction of I these witnesses, it seems to us that it entirely discredits this testimony of the acceptance upon the part of the deceased of this proposed customer upon terms so different from those which he was desirous of obtaining for his place of business, which he was about to sell. There seems to be no reason, therefore, for disturbing the conclusion of the referee. The judgment and orders-appealed from should, therefore, be affirmed, with costs.

O’Brien and Follett, JJ., concur.


author: Daly, Ch. J.

text:
    John D. Brassington, Resp't, v. Frederick Rohrs, Impl'd, App'lt.

      (New York Common Pleas, General Term,

      Filed April 8, 1893.)

    Costs—Appeal.
    Where a single notice of appeal specifies three separate appeals, from-the judgment, and from independent orders, the respondent, on affirmance, is entitled to costs of each appeal.
    Settlement of orders of general term.

      Chas. J. Hardy, for resp’t; Henry Wehle, for app’lt.
   Daly, Ch. J.

The appellant, upon a single notice of appeal to this court, brought up for review (1) the judgment of the general term of the city court upon demurrer, together with the order directing such judgment; (2) an independent order made after judgment, denying the motion to vacate such judgment; and (3) an independent order, striking out as sham that part of defendant’s answer which had not been demurred to.

Although there was but one notice of appeal, it specified three appeals, and the respondent is, therefore, entitled to costs of each appeal. Stanton v. King, 76 N. Y., 585. The appellant, for his own convenience, included his three appeals in one notice, but that does not make less than three appeals which respondent was called upon to contest and argue, and which were, in fact, sepaarately discussed in the briefs on both sides.

Respondent was not relieved from any labor, nor saved any time' by the form in which the appeals were taken.

We have, therefore, allowed costs upon the appeal from the judgment, which will cover the appeal from the intermediate order sustaining the demurrer. The disbursements allowed upon that appeal will cover all the printing upon all the appeals, as the appeal papers upon all were contained in one book, and the points upon all were embraced in one brief.

On each of the two remaining appeals from orders, costs to be taxed, without disbursements, are allowed. Goodridge v. Connor, 66 How. Pr., 143.