author: Gray, J.

text:
    George H. Adams et al., Ex’rs, Resp’ts, v. Stephen H. Olin et al., Ex’rs, App’lts.

      (Court of Appeals,

      Filed November 28, 1893.)

    1. Trust—Husband and wife.
    Where securities, belonging to a wife, are sold by her husband, with her knowledge and consent, and the amount of the proceeds is received by the husband and entered to her credit in his books of account, and there is no other evidence of any agreement, the inference, after both parties are dead, is that there was no trust or special deposit.
    3. Same—Limitation.
    In such a case the limitation of six years, provided for by § 382 of the Code of Civil Procedure, applies; and the statute begins to run from the receipt of the money.

      Boughton v. Flint, 74 N. Y., 476, limited and distinguished.
    ■3. Limitation—Payment.
    In order that a payment shall operate to revive a debt barred by the statute of limitations, it must appear with reasonable certainty to have been made on account of the previous debt. If it is uncertain or ambiguous whether a payment was made as an independent transaction between-the parties, unconnected with bygone transactions, or whether it was made on account of some precedent and lapsed debt, no inference should be drawn of an admission thereby of the old debt. To operate as such an admission the payment must be a deliberate act of the debtor, evidencing or accompanied by some evidence of an intention to acknowledge the existence of the greater indebtedness.

      4. Same—Mutual accounts.
    Where a husband keeps a current account of transactions with his wife’s money, showing what amounts were received and placed to her credit and what payments were made by him therefrom, there is not “ a mutual, open and current account, where there have been reciprocal demands between the parties,” within the meaning of § 386 of the Code.
    (Maynard, J., dissents.)
    Appeal from judgment of the supreme court, general term, first department, affirming judgment in favor of plaintiffs entered on report of referee.

      George L. Rives, for app’lts; Daniel G. Rollins, for resp’ts.

      Reversing 50 St. Rep., 934.

   Gray, J.

It is the claim of the plaintiffs, as the executors of Mrs. Barlow, that there was due to her from the estate of her husband, Samuel L. M. Barlow, whose executors the defendants are, a sum of $22,771.12, which appeared, in an account found in Mr. Barlow’s books, under the name of “Alice C. Barlow,” as a balance due her in October, 1888. As one of the defenses to the claim, the defendants urged that it was barred by the statute of limitations. I think that such a defense was fully made out, and that the judgment recovered below cannot stand. Mr. Barlow was a prominent lawyer of the city of Hew York, and predeceased his wife in July, 1889, by only a few months. After his decease she made a will, wherein she gave all of her property to their son, to the exclusion of certain infant children of their deceased daughter, who, under their grandfather’s will, were entitled to an equal share of his estate. Of course, to the extent that the plaintiffs might make it appear that Mr. Barlow was indebted at the time of his death to his wife would the interest of his daughter’s children be diminished. The evidence to sustain the plaintiffs, claim consisted in entries which were found in Mr. Barlow's books of account. In March, 1864, an account with his wife is opened by an entry to her credit of $19,862.50, which was followed in June by one of $4,000. The first of these entries represented the sale of certain securities, which had been given to Mrs. Barlow by a client of her husband in grateful and further recognition of professional services rendered. The second of the entries represented the receipt from Mrs. Barlow of a check given to her by Mr. Townsend, her father. The account then shows upon the debit side an investment of these moneys by Mr. Barlow in real estate and in securities, and the payments of various bills. The account shows changes in these investments, and credits for sums received for interest or dividends.

On January 31, 1877, the sum of $300, received upon the sale of his wife’s pew, is credited. From that time until April 26, 1886, a period of over nine years, the books do not disclose that Mr. Barlow was in the receipt of any further moneys belonging to his wife. Upon the debit side of this account, after the entry of the item of a payment upon December 15, 1879, a period of over six years elapsed within which Mr. Barlow does not appear to have credited himself with any payments or other transactions for his wife’s account. At the latter date a cash balance apparently existed in her favor amounting to $23,187.42. Thus, depending upon what the books of account show, as the plaintiffs are obliged to do, in order to make out their allegation of a large amount of unsettled indebtedness from the husband to his wife, it would appear that any claim which she may have had against her husband, or his estate, for the balance appearing in her favor in Décember, 1879, would have been barred by the statute. This objection, however, the plaintiffs seek to overcome, either upon the ground that the receipt by Mr. Barlow of these moneys belonging to his wife was in the nature of a special deposit, and that the statute of limitations would not begin to run until after a demand; or upon the further ground that, the books evidence a mutual and running account between Mr. and Mrs. Barlow, with reciprocal demands, whereby the apparent indebtedness in December, 1879, was recognized and revived by further transactions appearing in the books of account in and after April, 1886. Upon one or the other of these grounds they were successful in the courts below.

With respect to the nature of the holding by Mr. Barlow of these moneys of his wife, it is very clear that it was not like a trust. The evidence is wholly insufficient to warrant such a conclusion, or to sustain the theory of a special deposit. It was found as a fact by the referee that all the transactions entered in the account Avith Mrs. Barlow, in relation to the purchase and sale of securities, the collection of moneys and the application thereof, were with her full knowledge and consent. It was formally admitted to be true, and so found as a fact, that they lived together with affection and in entire harmony, and that Mr. Barlow did not commit any fraud in relation to Mrs. Barlow’s property, nor any breach of trust, and that “ he dealt with her property at all times with her knowledge and consent.”

Turning then to the evidence of Mr. Barlow’s transactions, from the account referred to, we fail to find any indicia of the existence of a trust; or that there had been a special deposit confided to him for any particular time or purpose. There is no evidence of any original agreement, or of any request concerning the first receipt- of Mrs. Barlow’s moneys in 1864. We only know that they were paid to her husband. We do hot find in this account any such continuous investment, or such custody evidenced, of the moneys as might lead us to suppose that the fund was kept separate and distinct; as would be the case if it were regarded as held upon a trust or as a special deposit. To the contrary, while in the commencement a house and certain securities appear to have been bought with the moneys received, they were, within two years, sold, and only part of the proceeds reinvested. Down through this account, from 1866 to 1876, the debit side shows a realization upon securities, until in the latter year the account shows every form of investment to have been converted into cash. There was nothing after 1876 but a bookkeeper’s entry of a cash balance of account in Mrs. Barlow’s favor to show her husband’s accountability. What is the inference to be drawn ? Obviously, that he had appropriated the proceeds of sales of lands and securities to his own use. Of course, there is no question of any fraud committed. The findings referred to preclude any such inference, and prove that whatever he had done had been with her full knowledge and consent.

It seems that these personal books of account were not written in by Mr. Barlow himself, but by a bookkeeper, who made up his entries from bills and from the checks directed to be drawn by him, rather than from any instructions given by Mr. Barlow. So that these books furnish evidence of a very unsatisfactory nature, when looked to for any such purpose as the plaintiffs have in mind. The method of their keeping evidences the technical work of the professional bookkeeper, but there is nothing to prove that Mr. Barlow superintended the bookkeeping part, or interested himself in his clerk’s methods. While I said that the obvious inference to be drawn from these accounts was that Mr. Barlow had appropriated to his own uses the fund therein stated, such an inference in nowise serves to preclude us from presuming that, at a subsequent time during the lapse of years after 1876, he may have made some perfectly satisfactory settlement or arrangement with his wife with respect to any existing indebtedness. .In view of the knowledge she had as to all he did with her property, and of the affection and harmony in which they had always lived together, such a presumption may well underlie the financial transactions of their lifetime, and justify the interposition of the statutory bar against the maintenance of this claim by her executors after their decease.

The limitation of six years provided for by the Code, § 382, applies to such a case of liability, and it began to run from the time when the moneys were received. Section 410 of the present Code, which provides for a case where a demand is necessary, does not affect it. Mr. Barlow is not shown to have received his wife’s property in any capacity of a fiduciary nature. To use the language used in Mills v. Mills, 115 N. Y., 80; 23 St. Rep., 604, “he received money belonging to another, and had become a debtor for the same, and he was in no other sense a trustee than every one is who receives money to and for the use of another.” At most there was an implied trust raised by the law, which was governed by the ordinary rules of limitation. Even if there was anything from which we could presume that Mr. Barlow had received his wife’s money in some fiduciary capacity, her actual knowledge of the facts would except the case from the suspension of the lipiitation provided for in the first subdivision of § 410. By the second subdivision of that section it is only when there was “ a deposit of money not to be repaid at a fixed time, but only upon a special demand, or a delivery of personal property, not to be returned * * * at a fixed time,” that the time must be computed from the demand. This was not such a case as is there contemplated, for we are without any evidence that there was any agreement or undertaking with respect to a time of repayment or return of the moneys or the property. The clear instruction of that provision of the Code is that in the absence of any agreement or understanding as to a repayment of moneys deposited, or a return of property delivered, the lapse of six years operates to defeat any claim. In the case of Boughton v. Flint, 74 N. Y., 476, which the plaintiffs’ counsel relies upon, the opinion informs us of the important fact that the wife’s moneys were kept by the husband at her request. Rapallo, J., says there: “ He was not in default for not paying it over until she should demand it, as he was requested to keep it until then." p. 482. Besides, the case of Boughton v. Flint arose prior to the present Code of Civil Procedure, the provisions of which explain and limit the cases where a demand is made necessary. Here Mr. Barlow had funds of his wife, to which, if it was not his duty to pay them over at once, she was equitably entitled, and concerning which she had full knowledge. A legal liability existed from the commencement, and as such it was subject for its" enforcement to the limitation of six years, within the principles of many decisions. See Roberts v. Ely, 113 N. Y., 128; 22 St. Rep., 185; Mills v. Mills, supra, and Sheldon v. Sheldon, 133 N. Y., 1; 44 St. Rep., 260.

But it is insisted by counsel for the respondents that there was such “a mutual, open and current account, where there have been reciprocal demands between the parties,’’ as, within the meaning of § 386 of the present Code, to postpone • the running of the statute of limitations against a cause of action until the time of the last item proved in the account. Their argument has reference to the subsequent transactions appearing in the account in the years 1886 and 1888, and we are asked, in effect, to hold that they amounted to such a recognition of the indebtedness previously standing on the books in 1879 as to revive a claim for its recovery.

These transactions were few in number. In March, 1886, Mrs. Barlow was stricken with paralysis, and, during her illness, there were paid to Mr. Barlow certain sums of money amounting to $2,540.07; of which $2,476.07 were due to his wife from her father’s estate, and $64 were due to her for a dividend on some stock. They were entered by Mr. Barlow’s bookkeeper to her credit in the old account upon the books. Subsequently, he made payments, at her request, amounting to $1,319.20. Thereafter, in May, an account was made up for Mrs. Barlow, showing a balance due to her, on account of these particular transactions, amounting to $1,220.87, which sum was thereupon paid over to her by Mr. Barlow. In this connection considerable light is thrown upon the matter by some entries in Mrs. Barlow’s check book. The receipt of these two sums of money is first noted, and then follow the items of payments which had been made at her request. Against the balance, remaining after deducting the payments, are the words “Bal. to credit of Mrs. B,, $1,220.87, and. check for same deposited in Madison Square bank May 19th.”' In the books of Mr. Barlow the bookkeeper had carried forward the old balance of $23,187.42, and, by crediting the amounts just referred to, lie had thereby increased the apparent indebtedness of Mr. Barlow to his wife. But the entries in Mrs. Barlow’s own book tend absolutely, in my opinion, to rebut any presumption which the method of bookkeeping might give rise to. Whether Mr. Barlow directed the entries as they were made we are not informed. At most, we know they were his books, but wholly kept by the clerk, and we should be slow to presume that carrying an old and stale balance forward and writing up to it these subsequent items were acts of themselves evidencing the recognition of an apparent book indebtedness of past years. In addition to these entries, there were charged to Mrs. Barlow three items of payments, amounting to $456.50. One was to Mrs. Barlow’s nurse, one was to a blacksmith and one was to the Madison Square Bank. . These are without explanation other than as to their nature, but there is no evidence that these payments were intended by Mr. Barlow as charges against his wife, and the bookkeeper who made them was not able to testify that he had been directed to charge them as he did. It is quite as presumable that he charged them up in this way, in this particular account in Mr. Barlow’s books, without directions and as a mere bookkeeping method of his own, and that Mr. Barlow never intended them to re-open an account in that way, as that they were payments upon account of some existing indebtedness. In 1888 there was one other entry of the receipt of $100, proceeding from the sale of some stocks, but on the debit side this item is balanced by the payment of that precise sum two days later to Mrs. Barlow. The entries in 1888, therefore, furnish no basis for any presumption of liability. Can we say, then, that those particular unbalanced entries of payments in 1886, amounting to $456.50, are to be deemed payments upon account of the stale indebtedness of $23,187.42 ? I think the proposition is quite too monstrous to be entertained. It is at war with all the probabilities of the case, and no such inference, in my judgment, could be drawn from the facts. In order that a payment shall operate to revive a debt barred by limitation of time, it should appear in some reasonably intelligible way to have been made on account of the previous debt; and, in the absence of evidence tending to prove that fact, we should refuse to .draw an inference from a condition of things which is as consistent with one theory as with another. If it is uncertain, or ambiguous, whether a payment was made as an independent transaction between the parties, and not connected with by-gone transactions or whether it was made on account of some precedent and lapsed debt, no inference should be drawn of an admission thereby of the old debt; for, to operate as such an admission, the payment must have been a deliberate act of the debtor evidencing, or accompanied by some evidence, of an intention to thereby acknowledge to his creditor the existence of the greater indebtedness. Without the written evidence of an acknowledgment of the debt which the statute requires, a payment, to be effectual as an acknowledgment, because a recognition of an indebtedness, must enable us to infer, from the circumstances, if without any other evidence, the debtor’s intent that it shall be so taken by his crédito:. Shall we do so, when the entry of the payment in an old account is the sole evidence and that is made, not by the debtor, but by a clerk, and, so “far as we are informed, unknown to the creditor ? That would be going-further than I think any case authorizes, or any principle of law would justify. There is nothing in this case to show that Mr. Barlow had any such intention as is ascribed to him; for wm have only these bare items in an account, in the handwriting of a third person, whose authority, or instruction, to enter them in the way he did is not proved. While, against the idea, we have much that militates in favor of the belief that the transactions during these years of 1886 and 1888 were not associated with the precedent transactions and were fully accounted for. We see an instance of that in the pages of Mrs. Barlow's check book referred to and a further instance in a transaction on November 8, 1886, and stated in a finding of the referee. On that date Mr. Barlow gave to his wife the sum of $500; which she stated in her check book as follows, viz. : “Due from S. L. M. B. $300, borrowed from S. L. M. B. $200.” As, according to the plaintiffs’ theory, he must have then owed her over $20,000 in cash, is it conceivable that such a statement could be made with respect to the $500 received ? I think not, and that it is sufficient, taken in connection with other evidence of like nature, utterly to refute the assertion that Mrs. Barlow had any legal claim upon her husband growing out of the transactions antedating 1879.

Section 386 of the Code is of no aid to the plaintiffs. The evidence does not disclose any mutual account showing reciprocal demands. There was a current account kept by the husband of his transactions with his wife’s money, showing what amounts went to her credit and what payments were made therefrom. Of course the payments, which in the methods of bookkeeping were, in this account, charged to her and credited to him, would not constitute what are understood to be reciprocal démands. The account here is not like the tradesmen’s account in Green v. Disbrow, 79 N. Y., 1, a case which may serve to exemplify the necessary distinction. In my judgment a careful consideration of this record must lead to the strong conviction that Mr. and Mrs. Barlow, between themselves, had settled, in some satisfactory way, all questions growing out of the transactions alluded to; but, if she may be deemed to have had a claim, then her cause of action was gone, through the operation of the statutory provisions which fix a limitation of time fo;- the commencement of actions upon obligations.

The order and judgment appealed from should be reversed and a new trial ordered, with costs to abide the event.

All concur, except Maynard, J., dissenting.


source: Caselaw Access Project

author: Finch, J.

license: Public Domain

text:
    Eli Van Brocklen, App’lt, v. George B. Smeallie, Resp’t.

      (Court of Appeals,

      Filed November 28, 1893.)

    1. Partnership—Sale of interest—Title.
    The interest of a partner in a partnership is personal property, although the assets of the partnership includes real estate held by the firm for the use of the business, and the title thereto passes on the execution of an agreement for the sale thereof.
    2. Same —Damages.
    Where the vendee of an interest in a partnership refuses to complete without justification or reasonable excuse, and the interest is resold on notice, the sale being fair and such as to produce the best price possible to be obtained, the proper rule of damages in an action for breach of the contract is the deficiency resulting on the resale.
    Appeal from judgment of the supreme court, general term, third department, affirming judgment in favor of plaintiff for six cents damages.

      John M. Carroll and Charles S. Nisbet, for app’lt; L. A. Serviss, for resp’t.

      Reversing 46 St. Rep., 230.

   Finch, J.

The only question in this case is one of damages. The plaintiff and defendant entered into a written agreement whereby the former agreed to sell and convey, and the latter to purchase and receive, the plaintiff’s undivided one-third interest in the partnership of Snyder, Van Broclden & Hull, whose assets consisted of real estate held as partnership property for the use of the business, stock on hand, and debts due or to become due; and who were manufacturers of knit goods, occupying their mill for that purpose. The contract was-dated February 21, 1891; the price to be paid was $10,000 ; and the formal instruments of sale were to be delivered and the price to be paid on or before the ensuing first of March. The-partnership interest of the plaintiff was personal property, Menagh v. Whitwell, 52 N. Y., 146; Morss v. Gleason, 64 id., 204; and the title passed at once upon the execution of the agreement, for it is the general rule that a mere contract for the sale of goods, where the subject is identified and nothing remains to be done by the seller before making delivery, transfers the right of property, although the price has not been paid, nor the goods sold delivered to the purchaser. Bradley v. Wheeler, 44 N. Y., 502.

On the morning of February 28th, which was three days after the sale, the defendant announced to his vendor his purpose to “ throw up ” the contract and to “ drop it right there.” He made no complaint as to its fairness or justice, no assertion of any deception or mistake, not even of any disappointment in his bargain, but merely said that he had partly promised to put some money into another enterprise and could not put it in both ; that his brother was “ kicking," and so he should not fulfill his agreement. Ordinarily, the vendee in default proffers some show of justification for his refusal to perform. This defendant had no excuse, but broke his contract because, he chose to do so. The vendor, on the same day, served a written notice upon the vendee to the effect that he, the seller, was prepared to carry out the stipulations of the contract; that the papers on his part were executed and ready for delivery, and could be seen at the place where the exchange was to be made, and where they had been formally tendered to the vendee. As the first of March fell on Sunday, the notice offered performance on the day before or the day after, and insisted upon performance on the latter day at least. The defendant wholly disregarded the notice, and neglected and refused to fulfill his contract. On the second of April following the plaintiff gave a further written notice to the vendee that he had made diligent effort to sell the property since the latter’s refusal to take it; that the best dffer made was about $2,500 les» than the contract price; that he was to give an answer by the next night; and that if he heard nothing to the contrary he should accept the offer and hold the vendee for the resulting loss. The defendant paid no attention to this notice, made no objection, asked no delay, requested no different mode of disposition, suggested no purchaser willing to pay more, but simply remained silent. The plaintiff thereupon sold the one-third interest to his-partners, Snyder and Hull, for $7,500, not requiring the cash, but. taking $6,000 in notes and the balance in specific articles of property. There is no proof, no pretense, not even a suggestion in the record, that this sale was not perfectly fair and productive of the best price possible to be obtained.

On these facts the plaintiff sued, seeking to recover the deficiency on the resale. In answer to inquiries of the defendant,he testified that the interest contracted to be-sold was worth $10,000 when the agreement was executed, and when it was to be performed,, and such may have been its intrinsic worth, and yet its sale value may have been much less.

At the close of his case the defendant asked the court to rule as matter of law upon the facts,that the measure of damages was the difference between the value of the property at the date of the contract and the date of performance, and that since there was no-such difference the plaintiff was entitled only to nominal damages. The plaintiff objected to any such ruling, insisting that on the-facts he was entitled to recover the deficiency on the resale. The court ruled that only nominal damages could be recovered, and directed a verdict for six cents, to which the plaintiff excepted. On appeal, the general term affirmed the judgment

The ground of that affirmance is certainly erroneous. The-rule of damages applied was that which pertains to sales of real property, and which differs in scope and in principle from that applicable to sales of personalty. The opinion describes the contract as one for “ the purchase of land,” and all the authorities cited relate to sales of real estate. They have no application to the case in hand. The plaintiff had no land to sell and did not contract to sell any. What he did bargain about was his ultimate interest in the partnership assets when converted into money and after payment of all debts. His share of the net surplus then remaining was the only subject of sale, and all that he contracted to sell. His vendee would not and could not become a partner by force of the purchase, would gain no title to the assets as such, and could only force a sale of such assets, including the mill, and the distribution of the proceeds. It was said in Tarbell v. West, 86 N. Y.. 287, that “ it is now well settled that a purchaser from one partner of his interest in the partnership acquires no title to any share of the partnership effects, but only his share of the surplus, after an accounting and the adjustment of the partnership affairs.” The courts below, therefore, proceeded on a wrong basis, which led them into error.

In this court the rule of damages for a breach by the buyer of a contract for the sale of personal property is perfectly well settled. Dustan v. McAndrew, 44 N. Y., 78; Hayden v Demets, 53 id., 426. In each of these cases it was ruled that the vendor of personal property has three remedies against the vendee in default. The seller may store the property for the buyer and sue for the purchase price ; or may sell the property as agent for the Vendee and recover any deficiency resulting; or may keep the property as his own and recover the difference between the con* tract price and the market price at the time and place of delivery. In the second of the decisions last cited, it was further held that the rule applied not only to cases where the title passed at once, but also to cases where the contract was executory but there had been a valid tender and refusal. ■ Where the second method is adopted and the vendor chooses t.o make a resale, that need not be at auction, unless such is the customary method of selling the sort of property in question, nor is it absolutely essential that notice of the time and place of sale should be given to the vendee. Pollen v. Le Roy , 30 N. Y., 556. Still, as the sale must be fair, and such as is likely to produce most nearly the full and fair value of the article, it is always wisest for the vendor to give notice of his intention to re-sell, and quite unsafe to omit it.

In this case the vendor acted strictly with the authority of our repeated decisions, and must be protected unless we are prepared, after misleading him, to reverse in some degree our own doctrine deliberately declared. What is now said is that we ought not to extend the vendor’s right of re-sale to a species of personal property such as is involved in the contract before us. That is an erroneous and misleading statement of the problem". The adjudged rule covers every species of personal property. We have said of it that it is founded in good sense and justice, and that it “ is the same in all sales, and in respect to property of every description.” Pollen v. Le Roy, supra. The rule, therefore, needs no extension, since it "already covers the present case; and the real suggestion is that we should begin for the first time to make exceptions to it, and here and now take out of its scope and operation the one specific sort of personal property which consists of an undivided interest in a partnership. I feel myself bound to resist strenuously, and to advise earnestly against, any such disintegrating exception, whose logical outcome will inevitably be to confuse the rule with narrow and arbitrary distinctions; to open it to attack in numerous directions; to make its operation fickle and uncertain; to breed needless litigation, and in the end to shatter the rule itself. In deference to the doubts of some of my brethren, I ought to state as briefly as possible a few of the reasons why I think no such exception should be made.

One such reason concerns the safety of the fundamental doctrine ■upon which the rule is founded, which does not admit of such an exception as is now proposed, and will itself be endangered by the resultant logic of the process. That doctrine is that the vendor of personal property has a lien, or something more than a lien, upon it for the purchase price while it remains in his possession awaiting delivery, although the right of property has passed to the vendee. Benjamin on Sales, book Y., chap. 3, ■§§ 782, 783; Schouler on Personal Property, vol. 2, § 547. The right of the unpaid vendor is deemed sometimes analogous to the pawnee’s right of sale, and sometimes to the right of stoppage in transitu. Whatever it be, it is at least a lien upon the property sold for the purchase price so long as it remains undelivered, which lien the vendor may enforce by a sale, and then recover any balance of the contract price unrealized. Now, are we prepared to say that there is such a lien where the property is grain or hops, or a horse, but is not where it is an interest in a partnership ? And upon what principle can we admit the lien and the consequent right to enforce it in one case and deny it in the other ? If we undertake to make the distinction the inevitable result will be to shake or destroy the fundamental doctrine itself, with consequences which we may easily see would be likely to prove disastrous.

But, again : those who would draw the line between kinds or classes of property subject to re-sale, and those not so subject to it, must tell us where it is located, and upon what principle it is to be drawn. That, I suspect, would prove at least a difficult, if not an impossible task. The effort has been many times made, but always hitherto has ended in absolute failure. At first the endeavor was to limit the remedy to the case of perishable property, but in Maclean v. Dunn, 4 Bing., 722, that effort was resisted. Best, Ch. J., said of it: “It is admitted that perishable articles may be resold. It is difficult to say what may be considered as perishable articles and what not; but if articles are not perishable, price is, and may alter in a few days or a few hours. In that respect there is no difference between one commodity and another.” “And,” he added, “ we are anxious to confirm a rule consistent with convenience and law. * * * The goods may become worse the longer they are kept; and, at all events, there is the risk of the price becoming lower.” And so the rule was not confined merely to perishable property.

Another line of distinction is that between goods and merchandise and things in action; but we are not at liberty to draw that line in this state, even if it were possible to do it upon any logical ground. In Porter v. Wormser, 94 N. Y., 442, the contract was for the sale of government bonds, and in denying the right of the vendor to resell, Judge Andrews put it upon the ground that the vendee was not in default, adding: “ The contract to carry had not expired, and the sale cannot be 'regarded as the exercise by a vendor of personal property of a right to resell on account of the vendee, and to charge the latter for the loss, for the plain reason.that such right in any given case does not come into existence, and can be exercised only after default by the vendee. ” 'There was no suggestion that the rule did not apply to things in action, and he cited Dustan v. McAndrew, supra, and Mason v. Decker, 72 N. Y., 595.

The latter case shuts off another possible ground of distinction, which might be that the rule only applies to such personal property as is the subject of general traffic, and has a market value. In that case, the thing sold was shares of the stock of a construction company which was badly in want of funds, and struggling, by an issue of bonds to its friends, to procure means to live. This court held that the vendor had a double remedy, and might, as one of them, resell the bonds after tender to the vendee in default, and recover the • resultant loss. So that the rule not only covers things in action, but also those which are not the subject of general dealing, and cannot be said to have a market value. ,

This last case, in principle, comes very near to. the one at bar. The interest of a stockholder in the corporate property represented by his stock is nothing more than a pro rata share in the-property of the company remaining after the payment of debts, and expenses, with the intermediate right to share in the profits. Burrall v. Bushwick R. R. Co., 75 N. Y., 216. That is exactly the description of the interest of a partner in a partnership. That? one is incorporated and the other not is the sole difference between them, without at all affecting the common and identical character of the property owned in each. It seems to me the case must be decisive.

But I draw another inference from it, and that is the wide and dangerous sweep of the doctrine contended for in its application to stock transactions. I suppose nothing to be more common than sales of stocks by vendors for account of a defaulting vendee and a recovery of the balance unrealized. Logically that must stop if the exception here contended for be allowed, for I take it-that none of us, however astute, can stand upon so thin a distinction in the doctrine under consideration as that between a corporate and non-corporate interest in capital and assets.

I may be permitted to add that I can see no injustice in the application of this rule to the present case. Beyond any question.' the defendant could have been sued for the whole purchase price,, and if solvent could have been made to pay the entire $10,000. If he deemed the re-sale for $7,500 less than could be or ought to be realized, he had the privilege of protecting himself by procuring a more liberal purchaser or taking the property and controlling its sale for himself. He did neither. He kept silent. He defiantly broke his contract and with some natural triumph stands, ready to pay the six cents. That is not enough. He should pay the deficiency resulting from the sale.

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

All concur, except Andrews, Oh. J., not voting.


author: Haight, J.

text:
    Katharine Bartow et al., App’lts, v. Jonathan Sidway et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    1. Principal and agent—Presumption as to agency.
    An individual who is shown to have acted as agent for another during a long series of years in business transactions may be presumed in certain, instances to continue his agency as to transactions with others, hut such presumption will not continue as to transactions between the principal and the agent or his wife.
    3. Evidence.
    It is too late to raise for the first time on appeal an objection to the admission in evidence of vouchers and accounts on the ground that there was no proof of the signatures of the vouchers nor of the correctness of the accounts.

      3. Same.—Copt account—Code Crv. Peo., § 531.
    In order to avail of the privilege given by § 531 of the Code, excluding evidence of an account where written demand for a copy thereof has been made of the party alleging the same and refused, an order to such effect must be procured.
    Appeal from a judgment entered upon a decision of the Erie equity term.

      Leroy Parker, for app’lts ; Adelbert Moot and James C. Beecher, for resp’ts.
   Haight, J.

This action was brought to set aside certain transfers of property made by one Aurelia Bemis to Katharine B. Bemis, her daughter-in-law, and for an accounting.

The plaintiff, Katharine Bartow, is a daughter of Aurelia Bemis .and the executrix of her last will and testament, which was executed in the year 1847, discovered in 1890 and shortly thereafter admitted to probate. Aurelia Bemis had two sons named Asaph and Elijah St. John Bemis. Katharine B. Bemis was the wife ■of Asaph Bemis and a sister of the defendants Jonathan and Franklin Sidway, who are her only heirs at law. Aurelia Bemis, the mother, Asaph Bemis, the son, and Katharine B. Bemis, his wife, died before the commencement of this action. Formerly Aurelia Bemis was the owner of a tract of land in the city of Buffalo, being a part of outer lot 93, commencing 173 and ¿ feet from the intersection of Michigan and Seneca streets, on the south side of Seneca street, and being 82 and feet in width on Seneca street, extending southerly to the Little Buffalo Greek, a distance -of nearly one thousand feet. She also in 1852 purchased a house and lot on Franklin street known as Ho. 147. At the time of the purchase the Franklin street property was encumbered by a mortgage executed by David Burt and Benjamin Fitch, July 15, 1841, for $6,200. This mortgage was assigned by Fitch to Seth Grosvenor, July 15, 1841, and by Grosvenor and Seth G. Babcock to Henry W. Burt, June 3, 1859, at which time there remained unpaid thereon the sum of $3,600. It was again assigned by Burt to Katharine Bartow, the plaintiff, July 21,1859, reciting the balance unpaid as $3,604.42.

July 9, 1859, the International Bank of Buffalo recovered a judgment for the sum of $1,007.36 against Asaph Bemis and Aurelia Bemis in the superior court of Buffalo upon a note given by Asaph Bemis to Aurelia Bemis and by her transferred to that bank. August 16, 1860, the sheriff sold the Franklin street property upon an execution issued upon that judgment to Merwin S. Hawley and issued a certificate of sale to him. March 23, 1864, Hawley assigned the certificate of sale to Katharine B. Bemis, and July 10, 1879, G. A. Scroggs, the sheriff, executed and delivered to her a sheriff’s deed of such property under the foregoing sale.

September 7, 1878, George W. Tifft recovered a judgment against Aurelia Bemis in the Erie county court for $912.88, on which judgment the sheriff sold, July 27, 1879, the Franklin street property and also the property lying between Carrol and Exchange streets, and issued a certificate of such sale to George W. Tifft, who thereafter assigned the same to Katharine R. Bemis, and February 17, 1881, Joseph H. Haberstro, as sheriff, executed and delivered to Katharine R. Bemis a deed of such premises under the foregoing sale.

September 22, 1878, Aurelia Bemis, by a warranty deed, conveyed to Katharine R. Bemis the entire land owned by her lying between Carrol and Exchange streets in consideration of the sum of $15,000, and on the same date by a warranty deed she conveyed to Katharine the south 155 feet of the land owned by her lying between Exchange street and the Main and Hamburg canal in consideration of the sum of $10,000, which lots-Katharine R. Bemis subsequently sold; the former to Francis H Root for the sum of $15,000, and the latter to the Hew York Central Railroad Company for the sum of $16,500. December 27, 1880, Aurelia Bemis by a warranty deed conveyed to Katharine R. Bemis the Franklin street property.

December 17, 1852, Aurelia Bemis executed a mortgage in consideration of $2,500 to the Buffalo Savings Bank upon her premises lying between Seneca and Carrol streets. June 29r 1874, this mortgage was discharged of record, and another mortgage was executed by her to the same bank upon the same premises for $6,500. Hovember 14, 1876, a judgment was entered in favor of the bank against Aurelia Bemis for the sum of $7,050.83 upon the said mortgage, and December 7, 1876, the premise^ were sold thereunder and bid in by Katharine R. Bemis, and on that day a sheriff’s deed was executed and delivered to her.

Inasmuch as this controversy is confined to the Franklin street lot and the Seneca street lot, we do not deem it necessary to pursue the record title further. There were other deeds and mortgages executed, but' they pertained to the other parcels, and do not materially affect any question raised for our consideration.

It is claimed on the part of the plaintiff that Asaph Bemis was the agent and trusted son of Aurelia Bemis, and that as such agent he bid in the several parcels upon the sheriff’s sale in the name of his wife, who took title thereto under such bid, and that under the circumstances she must be deemed to hold the title of such parcels in trust for Aurelia Bemis. There would be much force in this contention were it not for another fact which appears in-the case.

The trial court has found “ That in consideration of the conveyance of the real estate to said Katharine R Bemis by deeds from the sheriff and the said Aurelia Bemis, * * and in addition to money paid, it was agreed by said Katharine R. Bemis that the said Katharine R Bemis would support and maintain for and during the period of their natural lives the said Aurelia Bemis and her said son, Elijah St. John Bemis; that in pursuance of such agreement the said Katharine R Bemis did from and after the making of said agreement properly support and maintain saidAurelia Bemis until the death of said Aurelia, * * * and did properly support and maintain said Elijah St. John Bemis until the date of the death of said Katharine R Bemis, which occurred on the 15th of March, 1890; that said Katharine R. Bemis before her decease provided for the support of said Elijah St. John Bemis during the period of his natural life by her said brothers and heirs, Jonathan and Franklin Sidway; that said Jonathan and Franklin Sidway, soon after the decease of said Katharine R. Bemis and before the commencement of this action, executed and delivered proper instruments charging upon their property inherited, by them from said Katharine R. Bemis the support and maintenance of said Elijah St. John Bemis for and during the period of his natural life, which instrument so executed was and is effectual for the purpose aforesaid. And the said Sid-ways have since the death of said Katharine R. Bemis supported and. maintained said Elijah St. John Bemis according to the agreement between said Aurelia and Katharine R. Bemis. That the agreement between said Katharine R. Bemis and Aurelia Bemis for the support and maintenance of said Aurelia and Elijah St. John Bemis was a fair one, and the obligation incurred by said Katharine R. Bemis was a just and fair equivalent for any equity of redemption or other claim which Aurelia Bemis then had or might assert with reference to any of the property of which said Aurelia had been seized.”

As to this agreement it is claimed on behalf of the respondents that Asaph was not acting as agent for his mother. We are inclined to concur in this view, for in our exámination of the case we fail to find any evidence tending to show that he acted as such agent. He undoubtedly acted for his mother as to many of the transactions appearing upon the record. She undoubtedly trusted him and relied upon him to a large extent, but when it came to the making.of the contract between his mother and his wife in which he and his wife agreed to support and maintain his mother during her life and her son Elijah St. John during his life, there is no evidence that he acted for her.

An individual who is shown to liáve acted as agent for another during a long series of years in business transactions may be presumed in certain instances to continue his agency as to transactions with others, but such presumption will not continue as to transactions between the principal and the agent or his wife.

The question therefore is as to whether there was such a contract. . The agreement does not appear to have been in writing. The only direct evidence we have of the agreement is the admission by Aurelia Bemis made in her lifetime to one Jane Fickey, who testified that on one occasion Elijah St. John Bemis was lamenting his position in life, and that his mother replied to him, saying: “You need not trouble, I have made provisions for you." She further testified that afterwards Mrs. Aurelia Bemis said to her that “ she had turned over her property to her son Asaph and his wife for the keeping of herself and her son Elijah.” When this agreement was made does not appear, neither do its details. This admission was made in the year 1881. The title of the Franklin street property had been in Katharine since the year 1879,- and the title of the Seneca street property since December 7, 1876. A warranty deed was executed and delivered by Aurelia Bemis to Katharine of the Franklin street property in December, 1880. If Aurelia turned over her property to her son Asaph and his wife for her keeping and that of her son Elijah, the agreement must have been made as early as December, 1876. As to the details of the agreement we have only the admission of Aurelia and the inference that may be ■drawn from the manner in which the agreement was executed by Katharine. It is an undisputed fact that during the lifetime of Asaph that Aurelia and Elijah were properly looked after, cared for and their wants supplied by him, and that after his death this duty was properly performed by Katharine, and that just before her death during her last sickness she called to her bedside her attorney in company with her brothers, the defendants, and gave directions in reference to papers she wished drawn and executed, and that in accordance with such directions the defendants executed papers in which they charged their property with the support of Elijah St. John Bemis during his lifetime, and after his ■death they undertook to convey the Franklin street property to Katharine Bartow, the plaintiff in this action. This is the manner in which Katharine Bemis executed her part of the contract.

Was the contracta fair and just one? As we have shown, Katharine received nothing out of the Franklin street property. It was reserved for the support of Mrs. Aurelia Bemis and her son during their lives, and it then goes to the plaintiff. It was used by them as a dwelling and produced no income. Katharine had to support them and pay the taxes out of the Seneca street property. We are left in some doubt as to the value of this property in 1876. It appears that the Buffalo Savings Bank took a mortgage thereon for $6,500, and that it refused to take a mortgage thereon for any greater sum. Dr. Orson St. John offered $10,000 therefor, but it was not accepted. The plaintiff claims that it was worth $20,000. On behalf of the plaintiff it is claimed that Asaph and Katharine Bemis had been more than paid for any money that they had expended in behalf of Aurelia or Elijah. Whilst on behalf of the defendants, the accounts of Asaph were put in evidence showing in detail the amount of payments made, which after deducting the credits received upon the sale of the lots to Boot and to the Mew York Central Railroad Company, with the rents collected, left a balance his due of $14,908.41. The trial court has found that the agreement was a just and fair one and that the obligation incurred in the support of Aurelia and her son Elijah -was a fair-equivalent for any equity of redemption that existed, and this finding we think is supported by the evidence.

Was there deception or undue influence practiced upon Aurelia Bemis to induce her to make the conveyances in question and was she capable of understanding the nature and import of the transaction ? These questions have been considered and passed upon by the trial court. There is evidence that sustains the findings. It was undoubtedly true that during the last two or three years of her life she was somewhat feeble in body and mind. She died on December 29, 1883, at tire advanced age of ninety years and eleven months. As we have seen, one of the conveyances brought in question was made in 1876 and the other in 1880, and some of the evidence tends to show that during these years she was quite vigorous, both in body and mind, for one of her years, and that she understood fully every business transaction entered into by her. The trial court had the advantage of seeing and hearing the witnesses deliver their testimony, and whilst the witnesses differ, the testimony taken is of such a character that we cannot well say that the findings of the trial court are against the weight of evidence.

Upon the trial Dr. Bartow, a son of the plaintiff, was sworn as a witness, and was asked to state the amount of the income that Aurelia Bemis had during the period that he was living in her house. The witness proceeded to state what she had told him. This was objected to by the defendants’ counsel as involving a personal transaction and was sustained by the court. The witness was not a party, and we do not see how the ruling can be sustained upon the ground stated. Whether her declarations were evidence as against the defendants we shall not now consider, for the evidence is of but slight materiality and her income was disclosed by other undisputed evidence.

It is claimed that the court erred in admitting in evidence the vouchers and accounts of Asaph Bemis; that there was no proof of the handwriting of any of the signatures upon the vouchers, and that the books were not shown to have been correctly kept. But no objection to these accounts appears to have been made ■upon these grounds. When offered in evidence they were stated to be the same items setup in defendant’s answer both as defense and counterclaim. The plaintiffs’ counsel objected to their introduction upon the ground that he had demanded a bill of particulars of the items set forth in the answer, and the same had not been furnished. This objection was overruled, and we think properly. If the plaintiff had desired to avail himself of the exclusion of this evidence under the provisions of § 531 of the Code, he should have procured an order. Gebhard v. Parker, 120 N. Y., 33; 30 St. Rep., 180.

We have examined the other exceptions taken, but find none tihat require a n.ew trial.

The judgment should be affirmed, with costs.

Dwight, P. J., and Lewis, J., concur.


text:
    Sarah E. Wheat, App’lt, v. Lillie E. Lord, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    Mortgage—Knowledge by grantee or unrecorded.
    In an action to foreclose a mortgage on certain land, the issue being whether defendant purchased the laud with knowledge of the mortgage, then unrecorded, it appeared that defendant swore to a statement that she knew of the existence of the mortgage at the time of her purchase; but she testified that at the time she signed it she did not know the contents, her husband being sick, and plaintiff’s attorney making misstatements, and that she did not know of the mortgage when she purchased the property. She was partially corroborated in her testimony by her vendor, and his evidence as to whether he had told her of the mortgage at the time of the .sale was contradictory. Held, that the finding of the trial court that defendant did not know of the existence of the mortgage at the time of her purchase would not be disturbed on appeal.

      Appeal from a judgment entered upon a decision of the county court of Erie county.

      Harry D. Williams, for app’lt; John G. Milburn, for resp’t.
   Haight, J.

This action was brought to foreclose a mortgage. On the third day of October, 1889, the plaintiff sold the premises in question to one Gifford A. Morgan, who, to secure a part of the purchase money, executed and delivered to her a mortgage thereon for the sum of $1,300. On the 19th day of December thereafter Morgan sold the premises to the defendant subject to a mortgage for $3,000,' but not to the mortgage in suit, and received his pay therefor in full. The plaintiff’s mortgage was not recorded until the 2nd day of December, 1890.

It is claimed on behalf of the plaintiff that the defendant knew of the existence of the plaintiff’s mortgage at the time she purchased the premises; that Morgan informed her of the mortgage and agreed with her to take care of it and save her harmless therefrom. Whilst on behalf of the defendant it is claimed that she had no knowledge of .the existence of the mortgage1 or of any other lien upon the premises. The trial court found as facts “ That at the time of-the said purchase of said land and premises by the defendant, Lillie E. Lord, and the delivery of the said deed of conveyance thereof to her, she had no knowledge of the mortgage referred to and set forth in the complaint herein; that the said Lillie E. Lord purchased said lands and premises as aforesaid subject only to the three thousand dollar mortgage before mentioned; in good faith and for a valuable consideration.”

If the plaintiff is correct in reference to her contention she is entitled to recover. If, however, the facts are as claimed by the defendant the judgment is correct.

The rule is that where a person has knowledge of facts sufficient to put him upon inquiry as to the existence of a prior unrecorded mortgage or other lien upon the premises that he is about' to purchase, he is presumed either to .have made the inquiry and. ascertained the facts of such prior right, or to have been guilty of a degree of negligence fatal to his claim as a bona fide purchaser. The circumstances, however, must be such as not only to lead to, but to direct the course of inquiry which would, if pursued, end in a discovery of the defect. The presumption is a mere inference of fact, and may be repelled by proof that the purchaser failed to discover the prior right notwithstanding the exercise of due diligence on his part. Williamson v. Brown, 15 N. Y., 354; Birdsall v. Russell, 29 id., 220; Stearns v. Gage, 79 id., 102-107; Acer v. Westcot, 46 id., 384-389; The Belmont Branch of the State Bank of Ohio v. Iloge, 35 id., 65-68.

The question is therefore purely one of fact. The plaintiff’s case chiefly rests upon the testimony of her attorney as to an admission made to him by the defendant on the 2nd day of December, 1890, the occasion of his visit to her after the mortgage had been placed in his hands by the plaintiff. It appears that he had a conversation with Morgan in reference to the matter and that they had arranged to meet at the defendant’s house; that Mr. Morgan preceded him; that when he reached the house he met the defendant in ■ the sitting room in company with Morgan, and told her that he had come there by appointment with Mr. Morgan, and that he supposed she knew the nature of his business; she replied she thought she did; that he then had some conversation with her in which she told him that Mr. Morgan bad told her before her, purchase of the property that Mrs. Wheat had a mortgage upon the property; that he then asked her if she would be willing to make a statement to that effect and she said that she would; that he then read to her an affidavit that he had previously prepared for Morgan to sign, which is as follows :

“State, of New York, “County of Erie.
“ Grifford A. Morgan, being duly sworn, says, that he is the person by that name who, about October 3, 1889, bought of Mrs. Sarah E. Wheat the premises Mo. 285 Fifteenth street, Buffalo, M. Y., being thirty feet front by one hundred and twenty feet deep, and thirty feet north of Massachusetts street on the east side of Fifteenth street; that in said purchase deponent assumed a $3,000 bond and mortgage upon said premises and gave Mrs. Wheat in payment for her interest in said land a second bond and mortgage for $1,300; that in December, 1889, deponent sold said premises to Mrs. Lillie E. Lord, she assuming said $3,000 mortgage; that at the time of selling said premises to Mrs. Lord deponent knew that the mortgage he gave to Mrs. Wheat was on said premises, had not been recorded, and told Mrs. Lord so, and tried to find Mrs. Wheat and give her some other security, but could not find her. Deponent told Mrs. Lord of the existence of the mortgage given on these premises to Mrs. Wheat, and told her he would take care of it himself and save Mrs. Lord harmless therefrom, and Mrs. Lord then took the property assuming the first mortgage, and gave deponent other property in trade. Deponent wrote to Mrs. Wheat in Orange to make some arrangement about this mortgage. Mrs. Lillie E. Lord had refused to take this property unless deponent gave it to her subject only to the $3,000 mortgage, and that is why deponent told her he would give Mrs. Wheat other security for her mortgage.
“ Sworn to before me, December 2, 1890.”

The affidavit was not signed or sworn to by Morgan, but the plaintiff’s attorney indorsed thereon the following:

“State of New York,
Erie County,
“Lillie E. Lord, being duly sworn, says: I have read the within statement or affidavit made for Mr. Morgan to sign and know the same to be true in every particular.
“ (Signed)
Lillie E. Lord.
“ Sworn to before me December 2, 1890.
“ Harry D. Williams, Notary Public.
“Witness : Grifford A. Morgan.”

Mr. Morgan was sworn as a witness for the plaintiff and gave a somewhat different version of the interview of December 2, 1890. He says that at the time the plaintiff’s attorney handed to him the affidavit to be signed at his office that he said to him that it was merely an explanation or statement to show Mrs. Wheat that there was no underhand or mean business in the transaction and that there was no intention to defraud; that he asked if Mrs. Lord would probably sign it, and the witness told him that he thought she would, as it was merely a statement to show that there was no fraud or intention to defraud in the matter ; and that at Mrs. Lord’s the plaintiff’s attorney explained why the statement was drawn up for her to sign, that he wanted it to show to Mrs. Wheat as Mrs. Wheat had refused several offers made to her for a settlement ; he wanted to show her that there was no fraud intended, and that Mrs. Lord had bought the place on the terms agreed upon, and that upon that basis Mrs. Lord signed it. Witness further stated that he had no idea that it was an affidavit, but understood it to be merely a statement to show to Mrs. Wheat.

Upon the question as to whether he did in fact tell the defendant of the existence of the mortgage before her purchase, his first response was, “If I remember correctly, I told Mrs. Lord there was a lien on the property in the shape of a mortgage that I would take care of ; the amount I don’t think that I ever stated to her or the'nature of the lien.” Here we have from him a statement to the effect that he told her that the lien was in the shape of a mortgage, and in the next breath that he had not told her the nature of the lien. In reply to the question, “Did you tell Mrs. Lord of the mortgage? ” he answered, “I presume I told her. I cannot remember now, it is so far back. I presume I told her there was a mortgage on the property but it did not show on the search.” And again, in answer to a question to tell the conversation that he had with Mrs. Lord, he stated, “ I merely told her there is nothing on record against this property, but there is a mortgage against it and I will take care of it.” Upon his cross-examination he speaks of its being a mortgage and of its being a lien, and thinks that he mentioned it both ways to the defendant. The defendant tells us that she knew nothing about the existence of the mortgage; that Morgan told her that the title was all right; that he had examined the search; that there was nothing upon the premises aside from the $3,000 mortgage; that there was another small matter that he would take care of, and that that was all that was said in reference to the title before she purchased the property; that nothing was said about there being a mortgage or lien upon the premises aside from the $3,000 mortgage; that on the interview of December 2, 1890, Mr. Morgan came to her house and said that “ ‘ There will be a gentleman here this afternoon who.would like to have you sign some papers.’ I said, 1 What are they, Mr. Morgan ?’ He says, ‘ That you are knowing to the fact that there was a second mortgage on this place.’ I said I knew nothing whatever of it. He said, ‘ Well, Mrs. Wheat, the woman who owns this second mortgage is crowding me for her money, for the $1,300;’ he told me the amount; he said, ‘ I am in no place to pay that, and if you sign this paper it will give her to understand that you are knowing to the fact and it will ease me; it will relieve me,’ he says, 1 from paying her the money at present.”

That Mr. Williams, the plaintiff's attorney, then came and read the paper to her and she signed it without realizing what it contained; that her husband was in the house at the time very sick, and her thoughts were chiefly upon him. This is the evidence bearing upon the question. The findings of the trial court are in accordance with the testimony of the defendant. That court had the advantage of having the witnesses present and of seeing them when they were delivering their testimony.

Under the circumstances we do not consider the findings so clearly against the weight of evidence as to justify this court in reversing the judgment.

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

Dwight, P. J., and Lewis, J., concur.


text:
    Charles F. Ackerson, Supervisor, Resp’t, v. The Board of Supervisors of Niagara County et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    1. Town bonds—Sinking fund.
    In an action by a township against a county and its treasurer for failure to apply, íailroad. taxes as required by cliap. 907, Laws of 1869, Held, that it is no defense for the county to show that the taxes in question were raised to defray the expenses of the township, and were paid directly by the collector of the township for such purpose to the township officers, who delivered to the county treasurer receipts therefor, which were accepted by him in place of money.
    2. Same—Statutes.
    Chap. 907, Laws of 1869, as amended by Laws of 1870 and 1871, is not repealed by chap. 286, Laws of 1880. '
    Appeal from a judgment entered in Niagara county upon a decision made upon a trial at the Niagara equity term.

      John E. Pound, for app’lts; Cassius C. Davy, for resp’t.

       Affirming 45 St. Rep., 173.

   Haight, J.

This action was brought to recover the amount, of the taxes collected by the defendants from the Rome, Watertown & Ogdensburgh Railroad Company in the Town of Somerset, and is" based upon the provisions of § 4, chap. 907 of the Laws of 1869 as amended by chap. 789 of the Laws of 1870 and chaps. 283 and. 925 of the Laws of 1871.

In the year 1872 the town of Somerset issued bonds to the amount of $90,000, bearing interest at the rate of seven per cent, per annum, to aid in the construction of the The Lake Ontario Shore Railroad, then about to be built through the town. These bonds were issued to the railroad company in exchange for the company’s stock, and the proceeds were used in the construction of the road. In 1874 the property of the railroad company was sold under foreclosure, and the purchasers reorganized under the name of The Lake Ontario Railroad Company, which company was in January, 1875, consolidated with the Rome, Watertown & Ogdensburgh Railroad Company under the latter name. The interest maturing upon the bonds, was not paid by the town, and several actions were brought by some of the holders of the bonds which resulted m judgments against the town for the amount due and unpaid. In 1880 the legislature, upon the request of the officers of the town, enacted chap. 286 of the Laws of that year, whereby the supervisors and justices of the peace of the town made an agreement with the holders of the bonds by which their judgments were settled and their bonds surrendered up and cancelled, they receiving therefor new bonds issued by the town bearing interest at five per cent per annum, and payable within thirty-three years from the date thereof. No part of the moneys collected from the railroad company by the county has ever been used by the county treasurer in the purchase of the bonds issued by the town to the railroad company, or has ever been invested as a sinking fund for the redemption of such bonds, as required by the provisions of the statute. The trial court awarded judgment for the amount of such taxes, excepting school and road taxes, collected within six years prior to the commencement of the action.

It is now contended that the recovery should not have included the town taxes, for the reason that the town had had the benefit of the amounts collected for that purpose.

The trial court has found as facts “ That all of said railroad taxes in each of said years was by direction of the defendant, the board of supervisors of Niagara county, converted and appropriated to the payment of the liabilities of the county of Niagara; that all of such taxes in each of said years was by the respective county treasurers of said county, immediately after the receipt thereof, mingled with the general funds of the said county of Niagara, and thence paid out upon orders drawn by the respective county treasurers of said county, being thereto authorized and directed by the said board of supervisors, and not otherwise.” It is claimed that these findings are against the weight of evidence; that in one or two of the years for which a recovery was had the taxes were collected from the railroad company by the'town collector, who first paid therefrom the town orders authorized by the board of supervisors, and then turned the balance with the orders paid by him over to the county treasurer. Assume that this was done. It does not necessarily show that the findings are erroneous. We do not understand that it changes the situation of the parties. For the town orders turned in by the collector to the treasurer represented so much cash, and the orders were payable out of the other funds set apart by the board of supervisors for that purpose. If we have the question presented as to whether the town can recover from the county the amount of the town taxes collected from the railroad company, we do not propose to discuss it, for it has already been considered in the court of appeals in the case of Clark v. Sheldon, 106 N. Y., 104; 8 St. Rep., 537; and again in the same case in 134 N. Y., 333; 48 St. Rep., 279, and if this question is to be again opened for discussion it should be in that court. It is true that in that case the question arose in. a proceeding instituted by a taxpayer to compel the treasurer to invest the moneys received from the railroad company as taxes, but it was for taxes that had been theretofore collected, and the proceeding was instituted on behalf of a taxpayer of the town, and if a taxpayer of the town had the right to have the money collected for town purposes invested as a sinking fund, we fail to see why the supervisor, acting for the town, would not be entitled to the same relief. It is said that the town has had the , benefit of the fund. So it has of the state and county taxes as well; for it was the duty of the town to pay its proportionate part of the state and county taxes, and the amount that the county has collected of the railroad company was a part of the town’s proportion that it was required to pay.

It is further contended that chapter 286 of the laws of 1880 covers the entire subject matter embraced in this action, and by necessary implication repeals the provisions of § 4, chapter 907 of the Laws of 1869, as amended by chapter 283 of the Laws of 1871. The provisions of the act under which this action is, brought are as follows : “All taxes except school and road taxes collected for the next thirty years, or so much thereof as may be necessary, in any town, village or city, on the assessed valuation of any railroad in said town, village or city for which said town, village or city has issued, or shall issue bonds to aid in the construction of said railroad, shall be paid over to the treasurer of the county in which said town, city or village lies. It shall be the duty of said treasurer, with the moneys arising from taxes levied and collected as aforesaid which has heretofore been or shall hereafter be paid to him, including interest thereon, to purchase the bonds of said town, issued by said town to aid in the construction of any railroad or railroads, when the same can be purchased at or below par; the bonds so purchased to be immediately cancelled by said treasurer and the county judge and deposited with the board of supervisors. In case said bonds so issued cannot be purchased at or below the par value thereof, then it shall be the duty of said treasurer, and he is hereby directed, to invest said money so paid to him as above mentioned, with the accumulated interest thereon, in the bonds of this state, or of any city, county, town or village thereof, issued pursuant to the laws of this state, or in the bonds of the limited States. The bonds so purchased,with the accumulated interest thereon, shall be held by said county treasurer as a sinking fund for the redemption and payment of the bonds issued or to be issued by said town, village or city in aid of the construction of said railroad or railroads.”

The section of the statute from which the above is quoted contains other provisions pertaining to the duties of the railroad commissioner in reference to the issuing of bonds, etc. Chapter 286 of the Laws of 1880 is entitled, “An act for the relief of the town of Somerset, to abolish the office of railroad commissioner of said town, and to enable it to adjust its indebtedness and issue bonds therefor.” Section one provides: “ The supervisor of the town of Somerset, together with the justices of the peace of said town, or any three of such officers, are hereby authorized to execute under their hands and seal and to issue new bonds with interest bearing coupons in the name of the town of Somerset, for the purpose of redeeming, taking up and retiring the bonds issued by George H. Bradley, William H. Hyde and Stephen Meade, railroad commissioners of said town, in aid of The Lake Ontario-Shore Railroad Company, such other bonds to bear interest, annually at the rate of five per centum per annum, and to be made payable at such times that the principal thereof shall become due and payable in thirty-three annual payments and such payments substantially equal, and said interest and principal to be payable at some place that shall be designated in said bonds and coupons. Said new bonds may be issued to the holders of said old bonds or coupons, or the owner of any judgment recovered thereon, in sufficient amount to take up the old bonds and due or past due coupons and judgments recovered thereon owned by them respectively, or in the discretion of said supervisor and justices of the peace, they may sell said new bonds at a price not less than par, and with the proceeds thereof take up said old bonds and due or past due coupons and judgments recovered thereon, but no greater amount of such bonds shall be issued than is sufficient to take up and retire said old bonds and coujDons, including judgments thereon which have been recovered against said town, and they shall be used for no other purpose. * * * Said supervisor and justices are hereby authorized to-settle and adjust said indebtedness and nothing herein shall be construed as compelling them to issue said bonds until a satisfactory adjustment is made.”

Other provisions of the act require the supervisor to report at each annual session of the board of supervisors the amount of bonds and coupons issued and falling due within the year and the amount that would be required tp pay the same, and it is made the duty of the board of supervisors to assess and collect from the taxable property of the town an amount sufficient to pay the same.

Section 5 of the act abolishes the office of railroad commissioners, and the powers and duties devolved upon them are vested and imposed upon the supervisor of the town. There is no clause in the act expressly repealing the provisions of the former act, except that pertaining to railroad commissioners. Is there anything in its provisions which is repugnant to, or which by implication operates to repeal the provisions of the former act? The subject of the repeal of statutes has been recently considered by us in the case of Reinhardt v. Fritzsche, 69 Hun, 565 ; 53 St. Rep., 251, and the rule as we there stated is: “ That where there is no repealing clause in a statute, and that and the former one can stand together and both have effect, they will generally both be held to be in> force; but where a revising statute covers the whole subject matter of the prior statute, and such plainly appears to have been the legislative intent, the revised act is deemed to contain the entire law on the subject and virtually repeals the former enactment.” Matter of N. Y. Inst. for Deaf & Dumb, 121 N. Y., 234; 30 St. Rep., 921; People v. Gold & Stock Tel. Co., 98 N. Y., 67-78; Heck mann v. Pinkney, 81 id., 211-215; Ellis v. Paige, 1 Pick., 43; Bartlett v. King , 12 Mass., 537.

It will be observed that there is nothing in the act which purports to be a revision of the former act, nor do we find anything in its provisions that is repugnant thereto. It is entitled as an act for the relief of the town of Somerset, and to enable it to adjust its indebtedness and to issue bonds therefor.

If we were to adopt the construction contended for by the-appellants, it would have been more properly entitled an Act to relieve the county of its obligations to the town, and to deprive the town of its cause of action-against the county. The purpose of the act is apparent. The town had been bonded to aid the railroad company in building its road. Litigation had followed and several judgments had been obtained against the town. The interest upon the bonds for several years had matured, and the town had been called upon to pay. The bonds that had been issued bore interest at the rate of seven per cent. The officers of the town had discovered that the holders of the bonds were willing to compromise with them and receive new bonds "bearing interest at the rate of five per cent. It was under these circumstances that application was made to the legislature for relief, which resulted in the passage of the act in question. As we view it, the new bonds were issued to take the place of the old. • The new were in effect renewals of the old bonds, and stand in their place. The county treasurer can perform his duty under the former act by taking the money that is collected as taxes from the railroad company and with it buying in new bonds of the town if they can be purchased at par, or if not, to invest the money as a sinking fund for their redemption when due. The-provision requiring the supervisor to report the number of bonds and coupons issued, and the amount that will fall due and that will be required to be raised by taxes in order to meet the same, is not inconsistent, for he is only to report “ the amount required to pay the same.” If any part has been paid by the treasurer, or if any of the bonds have become due or any part thereof, so that the fund reserved may be applied in the payment thereof, to that extent it will relieve the town from its annual obligation to pay. The new act does not cover the entire subject embraced in the former act, and it expressly preserves some of its provisions. It. abolishes the office of railroad commissioners, but their powers and duties are preserved and cast upon the supervisor of the town.

The judgment should be affirmed, with costs.

Dwight, P. J., and Lewis, J., concur.


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    Frederick Jeffery, Resp’t, v. James T. Walker, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    Contract—Statute of frauds.
    Where plaintiff contracted to work for defendant for a year beginning-in the future at a certain sum, payable weekly, and by mutual agreement the contract was terminated, Held, that the contract had become executed and plaintiff may recover the balance due him on the weekly payments.

      Appeal from a judgment entered upon a verdict of the Wayne county court.

      H. R. Durfee, for app’lt; Hopkins & Converse, for resp’t.
   Haight, J.

This action was originally brought in a justice court to recover a balance claimed by the plaintiff to be due him for services rendered to the defendant. The complaint was upon a quantum meruit. The defense was that the services were rendered under a special contract and had been fully paid for, except the sum of $14.50, which the defendant had tendered to the plaintiff before the commencement of this action and which sum he had brought into court and delivered to the justice of the peace for the plaintiff. The trial before the justice resulted in a verdict for the plaintiff for $46.50. An appeal was taken to the county court, in which court a new trial was demanded. The trial in that court resulted in a verdict for the plaintiff for $48.25, being the amount of the recovery before the justice of the peace, with the interest that had accrued thereon. A motion was made by the' defendant for a new trial upon the minutes of the county' court, which was denied, and thereupon he took an appeal to this court.

It appears that the plaintiff entered the employment of the defendant the latter part of January, 1891, and continued in his service until the 23rd day of January, 1892. On behalf of the plaintiff it is claimed that at the time he entered such employment it was agreed that he should receive for wages $5 a week until the 1st day of April; that a few days before the 1st day of April they "further orally agreed that he should continue his services for one year from the 1st day of April, and that he should receive there- ' for $1 per day, or $7 a week. On behalf of the defendant it is claimed that at the time the plaintiff entered his employment it was agreed that he should be paid $5 a week for his services until April 1st, and $7 a week from April 1st to October 1st, and thereafter $5 a week during the winter months, and that either party •should be at liberty to terminate the contract upon giving a week’s notice.

It was conceded that the plaintiff had been paid in full to October 3, 1891, and that thereafter he had been paid the sum of $65.50. If the agreement was that he was to be paid but $5 per week after the 1st of October, the balance his due would be the sum of $14.50, the amount tendered and paid into court. If this agreement was that he was to receive $7 per week, then the amount his due wonld be the sum of $46.50, the amount of the verdict, with the interest accrued thereon.

Upon the trial .the court in substance charged the jury that the amount that the plaintiff was entitled to recover depended upon their determination as to what the contract was in reference to the amount of wages to be paid. The defendant complains of this charge, and it presents the only question requiring special attention.

We have stated that the employment was terminated on the 23d day of January, 1892. Under the contract as testified to by the defendant either party could terminate the contract upon giving a week’s notice. Under the agreement as testified to by the plaintiff the employment was for the term of one year, commencing on the first day of April,1891, and continuing until the first day of April, 1892. If such was the agreement it was not to be executed within one year from the time it was made, and was therefore void under the statute of frauds. But whether the agreement was to run for a year or was to run until the parties terminated the same by giving a week’s notice is unimportant, for it is conceded in the testimony of both of the parties that it was terminated on the 23d day of January, 1892, by the defendant’s giving the plaintiff such a notice, and the plaintiff’s accepting the same and quitting thereunder. The plaintiff testified that the defendant gave him a week’s notice and that he replied thereto “ I am perfectly willing.” The defendant testified that he said to the plaintiff “Now, Fred, you must not talk in that kind of a way to me. You recollect if there was any dissatisfaction we were to give each other notice. Now, if that is the way you are going to talk to me when I simply asked you if you had not made'a mistake in your figures, I will do as we agreed and now give you your notice, and he said ‘All right, sir’and off he marched.” It thus" appears that the employment was terminated at that time by the mutual consent of the parties.

We have no means of knowing what the determination of the jury was as to the provisions of the contract in this respect. The jury evidently found that the agreement was that the defendant should pay the plaintiff seven dollars per week during the continuance of the employment. Whether they found that the employment was to continue a year from the first day of April, or was to continue until terminated by one of the parties giving the notice mentioned, we have no means of'ascertaining.

It is conceded that the parties terminated the agreement under a notice, thus in a measure tending to corroborate the defendant in this regard. Under the evidence the jury was at liberty to find that the employment was to be terminated by notice. But whether it was so found or not, it appears that the contract was terminated, both parties consenting thereto. And under the circumstances in this case it appears to us that their situation is the .same as it would have been had the contract been fully executed by continuing the services until the end of the year. Under the agreement the plaintiff was to be paid weekly. At the end of each week he was entitled to his wages as agreed upon, either seven or five dollars, whichever it was. In this respect it was an executed agreement at the end of each week, and their contract fixed the value of the services. When, therefore, the parties mutually terminated the contract of employment the agreement became fully executed.

The case is distinguishable from those where the agreement was to pay a gross sum at the end of the term, such as Shute v. Dorr, 5 Wend., 204, for in such a case where a party ceases work before the expiration of the term he has not fully earned the sum agreed upon, and the services contracted to be rendered, not performed, may be of greater value to the employer than the services rendered. A child sixteen years of -age may not be able to earn much during the first two or three years, but the fourth or fifth year, when nineteen or twenty years of age, he may earn a considerable amount. In such a case an agreement to pay a gross-sum when the child arrives at the age of twenty-one years would afford us no evidence as to the value of the services rendered during the first year of his employment. Galvin v. Prentice, 45 N. Y., 162. .

In Lisk v. Sherman, 25 Barb., 433-438, Wells, J., in delivering-the opinion of the court, says: “It is the value of the services or property which the party receiving agreed to pay for them. In such cases it is said the contract furnishes the measure of damages -r and it makes no difference that the contract is declared void by the statute provided it might be enforced except for the statute. In Abbott v. Draper, 4 Denio, 51, Judge Bronson says: ‘Although the statute declares a parol contract for the sale of lands void, it does not make it illegal. It is not a corrupt or wicked agreement, nor does it violate any principle of public policy.’ And I confess I can see no reason for any distinction between such a contract and one which is binding upon the parties in respect to the propriety of resorting to it for the purpose of fixing the measure of damages. In neither case is the contract sought to be enforced-according to its terms. In the case of a contract void, though not illegal, it cannot be enforced and of course no action can be maintained upon it. In a case where the plaintiff is at liberty to rescind a valid contract, and brings his action for services or property rendered or delivered under it, such action is no more upon the contract than in the other case. In both the contract is laid out of view for the purpose of sustaining the action, and in each it may be resorted to in order to determine the value of the services-rendered or property delivered or conveyed as estimated by the parties themselves.”

In Clark v. Gilbert, 32 Barb., 576-584, Allen J., refers to the case of Lisk v. Sherman, and says in reference thereto, that “ The contract of services had been fully performed by the plaintiff, but the agreement as to compensation was void by the statute of frauds. It is well settled, however, that in such cases the contract may be resorted to as evidence of the value of the services and to control the recovery.”

In Day v. N. Y. C. R. R. Co., 51 N. Y., 583-590, Earl, 0., says: “If one pays money or renders services, or delivers property upon an agreement condemned by the statute of frauds, he may recover the money paid in an action for money had and received, and he may recover the value of his services and of his property upon an implied assumpsit to pay, provided he can show that he lias been ready and willing to perform the agreement and the other party has repudiated or refused to perform it * * * While the law in such case will not sustain an action based upon the agreement, it still recognizes its existence and treats it as morally binding, and for that reason will not give relief against a party not in default nor in favor of a party who is in default in the performance of the agreement.” Burlingame v. Burlingame, 7 Cowen, 92; Fort v. Gooding, 9 Barb., 371; Thomas v. Dickinson, 2 Kern., 364; Van Valkenburg v. Croffut, 15 Hun, 147; Fells v. Vestvali, 2 Keyes, 152; King v. Brown, 2 Hill, 485 ; Ludlow v. Dole, 62 N. Y., 617.

The judgment should be affirmed.

Dwight, P. J., and Lewis, J., concur.


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    Frederick Dieboldt, an infant, by guardian, Resp’t, v. The United States Baking Company, App’lt.

      (Supreme Court; General Term, Fifth Department,

      Filed October 20, 1893.)

    ISTegligence—Contributory.
    In an action brought to recover for personal injuries, it appeared that plaintiff, a boy of seventeen, had been in defendant’s employ eig'ht months and at the time of receiving the injury was engaged in operating a freight elevator, at half past five in a June afternoon. He ran the elevator up to the fourth floor, got out, left the door slightly open, and as lie testified, went about ten feet to get his lunch basket and returned immediately, the door being as he left it, looked in the elevator well but could not see on account of darkness, turned to say “good night ” to a girl standing near, stepped backwards into the elevator well, falling to the lower story and receiving the injuries complained of. It further appeared that after plaintiff left the elevator defendant’s engineer entered it, closed the door, and ran it down to the first floor where it belonged, as it was time to quit work and it was his duty to put the machinery in its proper place. Other evidence was given tending to show that plaintiff was gone from the elevator from four to ten minu’es and was fifty feet away engaged in conversation, and that when he returned the door was closed. It also appeared that the day was bright and the shaft well lighted. The elevator doors were not provided with automatic fasteners as required by law, but plaintiff knew of this fact. Seld, that plaintiff was guilty of negligence and could not recover.
    Appeal from a judgment entered upon a verdict at the Erie -circuit and from an order denying defendant’s motion for a new trial made upon the minutes.

      C. S. Crosser, for app’lt; Wallace Thayer, for resp’t.
   Haight, J.

This action was brought to recover damages for ■a personal injury. Plaintiff was an infant seventeen years of age; he had been in the employ of the defendant for eight months, and at the time of the receiving of the injury for which this action was brought was engaged in operating an elevator in the defendant’s building. The elevator was located in the centre of the building and ran up through four stories to the roof. The well of the elevator was enclosed. There were double doors upon each floor opening out into the room. Upon the fourth floor the building was divided into two rooms by the elevator well, and there were two sets of doors, one opening into the front room and the other into the rear room. The elevator was used for the hoisting of material and was not used for the carriage of persons. It appears' that there were sky-lights over the top of the elevator well; that on the day in question they had been removed; that in the large room of the fourth story there were fifteen windows and-three sky-lights; that at the time in question the day was bright and the sun was shining. On the 11th day of June, 1892, at about half past five o’clock in the afternoon the plaintiff ran the elevator up to the roof where men were engaged in constructing an addition to the building. He looked at the men and then returned with the elevator to the fourth floor and, as he testified, opened the doors into the front room, left them open about a foot and a half, went about ten feet to get his lunch basket and immediately returned without stopping to talk with anybody, walked towards the elevator doors where they were standing as he had left them, looked into the elevator well, but that it was so dark that he could not see whether the elevator was standing there or not, turned around toward a girl by the name of Sophia, Luse who was standing near by, said good night ” to her, took hold of the doors with his hands and backed into the elevator well, falling to the lower story, receiving the injuries for which this action was brought. He says that he was not gone from the'elevator more than a minute.

It further appeared that after the plaintiff left the elevator to get his lunch basket, as he says, that one Peter Young, an engineer in the employ of the defendant, entered the elevator and ran it down to the first story. He testified that he entered it from the front room, closing the doors after him, and took the elevator down to where it belonged; that the time to quit work had arrived and notice had been given to that effect, and it then became his duty to see that everything pertaining to the machinery was put in its proper place. Other evidence was given tending to show that there were thirty-five girls at work in the room; that the plaintiff had been absent from the elevator from four to ten minutes ; that he was from forty to fifty feet away, and was engaged in talking with the girls ; that wdien he returned to the elevator the doors were closed as testified to by some of the witnesses and controverted by the others; that he opened the doors, turned to the girls, was waving his hand at them bidding them good-bjro, when he backed into the elevator and fell. It further appeared that the doors to the elevator well were not constructed with automatic fasten era in accordance with the provisions of § 8 of chapter 462 of the Laws of 1887. We shall, therefore, for the purposes of this case, assume that the defendant was negligent in not procuring such automatic fasteners, McRickard v. Flint, 114 N. Y., 222; 23 St. Rep., 100, and shall consider only the question of the plaintiff’s contributory negligence. A motion was made for .a nonsuit upon this ground, and the same was denied and an exception taken.

The plaintiff knew of the condition of the doors and of the kind of fastenings that had been provided therefor. It -therefore became his duty to guard against any accident which was liable to occur in consequence of the absence of automatic fasteners. Freeman v. Glens Falls Paper Mill Co., 53 St. Rep., 786 ; Gibson v. Erie R. Co., 63 N. Y., 449 ; DeForest v. Jewett. 88 id., 264; Appel v. B., N. Y. & P. R. R. Co., 111 id., 550 ; 20 St. Rep., 90; Haas v. B.,N. Y.& P.R.R. Co.,40 Hun, 145 ; Powers v. N. Y.,L. E. & W. R. Co., 98 N. Y., 274; Shaw v. Sheldon, 103 id., 667; 3 St. Rep., 679.

The plaintiff says that as he looked into the elevator well it was dark, and that he could not see whether the elevator was there or not. It was, however, at half-past five o’clock in the afternoon of one of the longest days in the year, bright and the sun shining. The top of the elevator well had been removed and there does not appear to have been anything to obstruct the light from, entering the well, and it is quite evident from all the testimony in the case that he could have seen bad he carefully looked. He says that he was gone from the elevator but a minute and but ten feet away, and yet it appears that Peter Young came to the elevator, found it alone with the doors open; that he entered the same and took it down to the lower floor without the plaintiff’s observing it. It is quite possible that he was gone a longer time and a greater distance from the elevator than he admits. He concedes that a week before the accident he was instructed by Mr. Derrick, the superintendent of the defendant, not to leave the elevator alone; that on that occasion he had left it to do an errand for some one, and when he returned Mr. Derrick took him to task about leaving it, and told him never to leave it again, to always stand upon it. Mr. Derrick tells us that his instructions were not to leave the elevator at any place except upon the first floor, and under no circumstances to leave it alone ; that he was particularly careful of this for he feared that some of the other boys might take the elevator to run it for themselves.

He further testified that he should not have regarded it a disobedience of his instructions had the plaintiff simply stepped off to get his lunch basket, but that he should have considered it a breach if the plaintiff staid away long enough for some one else to come and take it. The plaintiff further concedes that as he returned he looked into the well but did not see whether the elevator was standing there or not; that he turned around, bid good-night to the girl that was standing near, and then backed into the well. In this it appears to us he was negligent, and that this negligence was the cause of his injury, and that because of such negligence he cannot recover. Hickey v. Taaffe, 105 N. Y., 26; 6 St. Rep.. 426; Williams v. The D., L. & W. R. R. Co., 116 id., 628; 27 St. Rep., 760.

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

Dwight, P. J., and Lewis, J., concur.