text:
    James H. Hummel, App’lt, v. Isaac Stern et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed December 18, 1895.)

    Contract—Performance.
    A contract to erect a machine to operate to the satisfaction of the purchaser is complied with by showing that the machine is erected in a proper manner and in a way that should have satisfied the purchaser.
    Appeal from a judgment dismissing the complaint.
    Root & Clark (B. Winthrop and H. L. Stimson, of counsel), for app’lt;
    Hoadley, Lauterbach & Johnson (F. P. Delafield, of counsel), for resp’ts.
   McADAM, J.

The action is on a contract whereby the plaintiff agreed to put in the defendants’ premises a ventilating machine for $350. The condition thereof affecting the present contention is as follows:

“We guaranty to ventilate receiving room to your satisfaction; otherwise, we will remove wheel and other material without cost to you, and put receiving room in as good order as we found it, without any charge to you.”

The plaintiff proved that the work had been done in a proper manner, and rested. The defendants moved to dismiss the complaint, and the motion was granted. The reason for the dismissal does not clearly appear, though it is evident that the true ground was that the work was not done to the defendants’ satisfaction, as stipulated in the agreement. The plaintiff was not bound to show that the defendants were actually satisfied with the ventilation. He was only bound to show that the work was done in a proper manner, and in a way that ought to have satisfied the defendants, and this was a question for the jury. Logan v. Association (City Ct. N. Y.), 18 N. Y. Supp. 164; Boiler Co. v. Garden, 101 N. Y. 387; 4 N. E. 749; Russell v. Allerton, 108 N. Y. 292; 15 N. E. 391; Doll v. Noble, 116 N. Y., at page 233; 22 N. E. 406. In Logan v. Association, supra, the plaintiffs were to furnish a hot water pressure tank, and the work was to be done “to the entire satisfaction of the defendant.” The complaint was dismissed on the ground that “it has not been shown that it was done to the satisfaction of the defendant.” Held, error. The defendants in Boiler Co. v. Garden, supra, contracted to pay only when they “were satisfied that the boilers, as changed, were a success,” and they claimed that this was a question for them alone to determine. The court said:

“Performance must, of course, accord with the terms of the contract; but if the defendants are at liberty to determine for themselves when they are satisfied, there would be no obligation, and consequently no agreement which could be enforced. It caimot be presumed that the plaintiff entered upon its work with this understanding, nor that the defendants supposed they were to be the sole judge of their own cause.”

In Russell v. Allerton, supra, the court said:

“We do not think that the effect of the words in the charter party, ‘charterers to approve the ventilation,’ was to leave the subject of the ventilation of the ship to the absolute, unreasonable, and wholly arbitrary decision of the charterer.”

The contract under consideration in Doll v. Noble, supra, required the work to be done “in the best workmanlike manner,” “and to the entire satisfaction” of the party for whom it was done. Held that, if done in the best workmanlike manner, such party could not defeat a recovery of the price agreed to be paid by arbitrarily and unreasonably declaring that it was not done to his satisfaction.

Deferring to contracts that the work shall be done to the satisfaction of the recipient partv, Folger, J., in City of Brooklyn v. Brooklyn City R. Co., 47 N. Y., at page 479, says:

“Such satisfaction is not an arbitrary or capricious one. It has its measure by which it can be filled. That which the law shall say a contracting party ought in reason to be satisfied with, that the law will say he is satisfied with.”

See, also, Folliard v. Wallace, 2 Johns. 395; Butler v. Tucker, 24 Wend., at page 449; Miesell v. Insurance Co., 7 N. Y., at page 119.

The rule is different, of course, where the contract involves a question of personal taste or individual preference. Boiler Co. v. Garden, 101 N. Y., at page 390; Gray v. Alabama Nat. Bank, 30 St. Rep. 824; Id., 38 St. Rep. 169. Such cases are: Making a suit of clothes. Brown v. Foster, 113 Mass. 136. Undertaking to fill a particular place as agent. Tyler v. Ames, 6 Lans. 280. Making a bust. Zaliski v. Clark, 44 Conn. 218. Painting a portrait. Hoffman v. Gallaher, 6 Daly, 42; Moore v. Goodwin, 43 Hun, 534; 7 St. Rep. 154. Making a lithographic design. Gray v. Alabama Nat. Bank, 30 St. Rep. 824; Id., 38 St. Rep. 169. Giving lessons in drafting patterns. Johnson v. Bindseil, 28 St. Rep. 881. The work done by the plaintiff was of a mechanical nature, requiring great expense in moving and putting up the machinery, and it would necessitate a like expenditure to take down and remove the same. It is evident, therefore, that the right to reject was not left to the whim or caprice of the defendants, but was to, depend on some objection founded upon reason; and, as this involved a question peculiarly for the jury, it should not have been withdrawn from their consideration. The case is unlike one where a horse, or other thing which may be returned without altering its condition, is given on trial. There the return might be enforced under the contract to take back if the thing proves unsatisfactory.

Having been nonsuited, the plaintiff is entitled to the most favorable inferences deducible from the evidence, and all questions of fact are to be deemed established in his favor. So construed, the record shows error.

Por these reasons, without considering the other questions presented, the judgment appealed from must be reversed, and a new trial ordered, with costs to the appellant to abide the event.


source: Caselaw Access Project

author: OSBORNE, J.

license: Public Domain

text:
    Ellen Swenson, by Guardian, etc., Resp’t. v. Brooklyn Heights Railroad Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed December 23, 1895.)

    Evidence—Expert.
    In an action for personal injuries to a child eight years old, medical testimony as to the various causes of disease alleged to have resulted from plaintiff’s injury, and some of its possible results, without alluding to its probable effect on the plaintiff, is inadmissible, and if admitted, should he stricken out. .
    Appeal from a judgment entered on' a verdict in favor -of plaintiff, and from an order denying a motion for a new trial.
    Moore, Wallace & Dudley, for app’lt;
    Ernest M. Welch, for resp’t.
   OSBORNE, J.

An action to recover damages for injury to plaintiff, a child eight years old, caused through defendant’s negligence. On the trial, defendant’s negligence was admitted, and also plaitiff’s freedom from contributory negligence; so that the only question litigated was the extent of plaintiff’s injuries. Plaintiff had a verdict for $4,000, and from the judgment entered thereon, and the order denyiny a motion for a new trial, defendant apeals.

On the trial, an expert witness, called on behalf of plaintiff to give evidence as to the extent of plaintiff’s injuries, having testified, inter alia, that the plaintiff had chorea, was asked the following question:

“Q. from your examination, state the treatment and the course of chorea in her (plaintiff’s) case—what it will be—the best way you can. Defendants counsel: I object to the question, as irrelevant, immaterial and incompetent, and that there is no .connection shown between the injury in this case and the ‘chorea,’ so called, and your honor will note my exception. The Court: The exception will be noted. Answer the question. Defendant’s counsel: How can he tell the course of something that has not happened? The Court: What will be the course, from his knowledge as an expert, of the disease? Defendant’s counsel: I object to that, on the ground that an expert is incompetent to testify .to the future course of the dicease. The witness: The disease chorea, and the allied diseases, of which there are several .of the same kind, are caused by irritation of the brain. This irritation may be the result of injuries to the head, of shock, of fright, or a poisoned condition of the brain resulting from different fevers, —from the poison of typhoid, or diphtheria, or scarlet fever, or diseases of that kind. When the irritation has reached a certain point, then these motion begin, usually in the bands, and spread to different parts of .the body, and in time may become general, so that all the muscles of the body, the anus, legs, and face, are in a state of motion. The effect of this irritation ialso injures the brain. It is not at all uncommon to see cases of chorea who are stupid, and almost on the verge of idiocy. How, in regard to the ultimate results of the disease,—that is, as to its being able to be cured,—we usually find that simple chorea, not due to any organic injury of the brain, is quite curable, bjit where we have to deal with an organic disease of the brain,— where injuries of the brain have ossurred which cannot be cured by any means,—there the chorea persists and remains with the patient. They cannot get rid of it, and it lasts for life, with a progressive mental degeneration as well as the muscular movements. Defendant’s counsel: I move to strike out in regard to chorea arising from injury to the brain organically, as having no connection with this ease whatever, and because his testimony is not ’confined, to results in. this case. He is giving general lectures.”

The motion was denied, and defendant’s counsel excepted^

We are of the opinion that the motion to strike out should have-been granted, and that the exception to the refusal so to do was. well taken. The question put by plaintiff’s counsel, and as modified or amended by the court, substantially called upon 'the witness to state, from his knowledge ’as an expert, the treatment and what would be the course of chorea in plaintiff’s case. We think that the question itself whs a proper one to put, but we look in vain in the answer for the slightest allusion to the plaintiff’s case to which the question was addressed. The witness, seems to have entered into a general discussion of the disease known as “chorea,”, the various causes producing it, and some of the possible ultimate results thereof. Nowhere does the witness state or intimate or express an opinion as to what the course of the disease would be in plaintiff’s case, or the probability or improbability of her recovery. On the contrary, the witness’ answer was confined to the possible effects attending the progress' of the disease in general, and its probable duration, and the result that might ensue to some other person or other afflicted with the disease, and those results dependent on the producing cause of the disease. We cannot say that this evidence did not' prejudice-the defendant, or influence the amount of the verdict. It improperly placed, before the jury results that might ensue, future consequences that were possible, and it would be most natural that the jury in estimating the damage to plaintiff,- should take .these elements into consideration in fixing the amount of the verdict. Strohm v. Railroad Co., 96 N. Y. 305; Tozer v. N. Y. C. & H. R. R. R. Co., 105 id. 617; 8 St. Rep. 56. This conclusion renders it unnecessary to consider any other exception in the case.

¡For the reasons stated, we think that the judgment and order denying motion for a new trial should be reversed, and a new trial ordered, with costs to abide the event. =


author: CLEMENT, C. J.

text:
    Silverman, App’lt, v. Simon et al., Resp’ts.

      (Brooklyn City Court, General Term,

      Filed December 23, 1895.)

    Trial—Restricting- evidence—Purpose on -offer.
    Where a case is reopened in order to offer certain evidence for a certain purpose, the party will be held to the offer made at the trial as to the ground on which he seeks to reopen the case and put in testimony, and the court will not accept the reason set forth in the brief on motion for a re-argument.
    Motion for reargument.
   CLEMENT, C. J.

learned counsel for the plaintiff, in his brief used on this motion, states as follows:

“The general term opinion reasons that the evidence in the bank book would not have been legitimate corroboration of plaintiff’s testimony, if offered in his original case. Ho one ever claimed that it would be, and it was admitted solely because it was competent to meet a new and independent issue raised in defendant’s proof, which was that plaintiff had never had the money in the bank which he claimed to have loaned, and never withdrew any such money, and hence that his testimony was fabricated.”

The plaintiff, on his cross-examination, testified that he deposited the sum of $1,000, which he' received from the uncle of his wife, in the State Bank, and that he drew on that bank the check for $500. On his redirect examination, he made a correction, and said that the $1,000 was deposited in the East Side Bank. Subsequently, the defendants put in evidence a correct copy of the ledger of the State Bank, showing the account of Silverman, and proving that his account in that bank was not opened until December 19, 1892, at least two months after the time when the check of $500 was claimed by plaintiff to have been drawn. The plaintiff was then recalled, and his testimony is to be found on page 99 of the case. At the foot of the page, his testimony is correctly summed up.

• “By Mr. Patterson: Q. Wasn’t this the way that you first spoke about your account in the State Bank, and said you deposited in the State Bank, and, while you were on the stand yesterday, you corrected it, and said it was in the East Side Bank it was? A. That is what I said. Q. That is the way it occurred yesterday? A. Yes, sir.”

The testimony was then closed, and a recess taken. After recess, counsel for plaintiff asked to reopen the case, and recall Mr. Silverman, and said:

“I want to put in evidence this bank book of the East Side Bank, showing the deposit of one thousand dollars and the draft of this $500 check.

After some discussion and a re-examination of Mr. Silverman, five pages of the bank book were admitted, under objection and exception as incompetent. Thé bank book does not show any deposit omf the exact sum of' $1,000, and is no evidence whatever of “the draft of this $500 check.” It may or may not have been competent testimony to show that Mr. Silverman had a bank account in the East Side Bank as early as September 29, 1892. We have not, in our previous opinion, passed on the point, and it is not necessary so to do. To prove the opening of the account, it was only necessary to read the first entry. We think it is right to hold the learned counsel to the offer made at the trial as to the ground on which he sought to reopen the case, and put in the testimony, and not to accept the reason now set forth in his brief on the motion for reargument.

The motion for reargument is denied, with $10 costs.


author: BOOKSTAVER, J.

text:
    Ada F. Parsons Smith, App’lt, v. William Hildenbrand, Resp’t.

      (New York Common Pleas, General Term,

      Filed December 23, 1895)

    1. Pleadings—District court.
    District courts are not bound to the same strictness in the matter of pleadings as courts of record are. It is sufficient if they can find any allegations which, under any view, may constitute defenses.
    3. Same—Fraud.
    An answer, which admits the execution and delivery of the instrument substantially as set out in the complaint, but alleges that the'contract was ,,. obtained by false and fraudúleát representations made by plaintiff’s agent ' ■ to defendant at the time defendant signed the same, and that the books delivered under the contract were not such as were represented by the agent, and alleges a prompt return of the books to the plaintiff, is sufficient.
    3. Same—Remedy.
    If the averments in the answer are defective, plaintiff’s remedy is by motion to make the answer more definite and certain.
    4. Evidence—Parol.
    Where a written agreement is signed by one party only, parol evidence may be given of an agreement made by the other party as a consideration of the written contract.
    6. Principal and agent—Liability,
    A provision, in a contract procured by the agent of one of the parties, that the principal will not be held responsible for any agreement not expressed in this contract in writing, does not relieve such principal from j liability from the fraudulent representations of his agent made within the ■ scope of his apparent authority.
    Appeal from a judgment entered on a verdict in favor of defendant. ...
    I. Newton Williams, for app’lt;
    Charles C. Keeler, for resp’t.
   BOOKSTAVER, J.

This action was brought to recover upon the following writen instrument:

“It is agreed that the publishers will not be held responsible for any agreement, promisepf cuts, etc., not expressed on this contract in writing.-
“The A. F. Parsons Publishing Company. “$10.00. New York, Aug. 14, 1894.
“You are hereby authorized • to deliver 10 copies of ‘New York, 1894,’ bound in embossed pamphlet covers, for which I will pay you, or order, the sum of ten dollars upon delivery of same. An editorial review of our business to appear in the publication. ' Name, W. Hildenbrand,
“Address, 1 Broadway.
“Remarks: To prevent errors,o fill this out in ink, and write name and address plainly.”

“It is agreed,” etc., was printed in nonpariel type in one line, at the Head of the instrument; “The A. F. Parsons Publishing Company” following immediately after in two-line pica or heroic type; while the body of the instrument was in geometric italic pica. The answer admitted the execution and delivery of the instrument substantialy as set out in the complaint, but alleged that the contract was obtained by falge and fraudulent representations made by plaintiff’s agent to defendant at the time defendant signed the same, and that the books delivered under the contract were not such as were represented by the agent, and alleged a prompt return of the booke to the plaintiff.

The question raised on the appeal is by plaintiff’s objection to the admissability of defendant’s evidence as to the alleged false representations made by plaintiff’s agent, on the ground that by the instrument in suit the agent’s authority was limited and restricted to the obtaining of subscriptions with such conditions and terms as the subscriber should write on the contract only, and that the plaintiff is not bound by any condition or representation not contained in the contract itself, and also on the ground that fraud had not been sufficiently pleaded in the answer. We think the fraudulent acts complained of were sufficiently set forth in the answer. District courts are not bound to the same strictness in the matter of pleadings as courts of record are, if they can find any allegations which, under any view, may constitute defenses. Crane v. Hardman, 4 E. D. Smith, 448; Blackmar v. Thomas, 28 N. Y. 67. A pleading which informs the plaintiff of the nature of defendant’s defense, and of the character of the evidence by which it is to be sustained, is sufficient. Cohen v. Dupont, 1 Sandf. 260. An answer need only be so expressed as to enable a person of common understanding to know what is intended. Code Civ. Proc. § 2940. If the averments in the answer were defective, plaintiff’s remedy would have been by making it more definite and certain.

In Estelle v. Dinsbeer, 9 Misc. Rep. 485; 61 St. Rep. 96, we said:

“The defense óf fraud in inducing a contract may always be set up and proved in these (district) 'courts for the purpose of defeating a claim founded in fraud. This is too well settled to need the citation of any authority.”

But the plaintiff relies principally upon, the limitation of the agent’s authority contained in the clause at the head of the written instrument, as follows:

“It is agreed that the publishers will not be held responsible for any agreement, promise of cuts, etc., not expressed in this contract in writing.”

Buttheinstrument, if it could properly be called a“contraet”at all, clearly contained all the undertaking of the defendant, for it bound the plaintiff to do nothing. Were it a complete contract, it does not subject the plaintiff to any penalty if she never published the book; and in such case the defendant could have had no remedy had it never been published and he had been injured therebv. There was no agreement as to the form, size, or contents of the publication, nor as to the number of the copies t.o be issued. It is inconceivable that the defendant should have entered into a contract without knowing something about all these matters, and having some assurance in regard thereto. Had the plaintiff published a list of the supposed disorderly resorts in the city of New Yofk, together with an editorial review of the defendant’s business, it would have been a complete compliance with the cóntract, if this instrument contained the whole of the contract, and he would have been compelled to pay the alleged contract price, although such a publication would have submitted him to the ridicule of his friends and the reprobation of those who did not know him. It is clear, therefore, that the instrument did not embrace plaintiff’s part of the contract; and the rule which rejects parol evidence when offered with respect to a contract between parties, and put in writing, has no application to a case where a part only is in writing, and the rest verbal, Routledge v. Worthington Co., 119 N. Y. 597; 30 St. Rep. 195; Weeks v. Binn, 85 Hun, 70; 66 St. Rep. 26; and the law does not exclude parol evidence to show a further agreement of the one party because that of the other has been reduced to writing. A written agreement having been signed by one party, parol evidence may be given of an agreement made by the other as a consideration of the written contract. Unger v. Jacobs, 7 Hun, 221. This case differs widely from Lamson Consolidated Service Co. v. Hartung, 45 St. Rep. 50; 46 id. 191, where the contract was complete in itself.

But the evidence objected to did not show, or attempt to show, plaintiff’s part of the agreement. It only tended to show what representations were made to the defendant by the agent for the purpose of securing the order, and that such representations were untrue and misleading, and deceived the defendant. It is not claimed that the agent promised any cuts, etc., or made any •agreement whatever. He simply described the book for which he was soliciting subscriptions, and stated what its contents were to be, and we think the court below was clearly right in admitting such evidence. Fraud vitiates all contracts, and no one can, by a limitation such as contained in this instrument, escape from the penalty of the fraudulent representations of his agent made in the scope of his apparent authority. From all the facts in the case, it was necessary that the agent should make some representations as to the character of the work to be published, or else he could get no subscribers, and he was deputed for that purpose. In other words, the plaintiff cannot avail herself of the contract procured by her agent without also subjecting herself to the penalty of any false and fraudulent representation such agent might have made.

This case is very similar to Fashion Co. v. Skinner, 19. N. Y. Supp. 62, where there was a similar clause, and the defendant answered by setting up fraud on the part of the plaintiff’s agent. This part of the answer was demurred to, on the ground that it did not state facts sufficient to constitute a defense, and the demurrer was overruled by a judgment for defendant, ordered at special term. On appeal to the general term, the decision was affirmed by a divided court, two being in favor of the affirmance, and one against it. The fact that this was decided upon demurrer, we think, makes no difference in the rule of law applicable to such cases. It is true that the presiding justice who delivered the prevailing opinion did in its course state: “Whether, upon the trial, the.proof will sustain the averments, is one question; but the demurrer admits that the defendants were induced to enter into the contracts by false and fraudulent representations.” This, however, in our judgment, only means that in that particular case, in the opinion of the judge, there may have been difficulty in finding proof of the allegations, not that they would be inadmissible under such contract. ' .

We therefore find no error in the rulings of the court below upon these questions, and that the case was properly submitted to the jury under a very clear statement of the law by the court, and that the verdict-of the jury was not only right, but righteous.

The judgment entered thereon should be affirmed, with costs.


author: DALY, C. J.

text:
    David B. Sickels, as Temporary Receiver, etc., Resp’t, v. George Herold, App’lt.

      (New York Common Pleas, General Term,

      Filed December 27, 1895.)

    1. Contract—Consideration.
    Where notes are delivered by the directors to a bank to make up an impairment of its assets, in order to satisfy the superintendent of banking and secure his sanction to continue the business of the bank and to give it credit with the public for the receiving of deposits and doing its general business, the makers of the notes are estopped, as against the receiver who represents the creditors of the bank, from alleging want of consideration.
    •2. Same—Estoppel.
    They are also estopped from contesting their liability, in case there exists an alleged agreement between them and the cashier of the bank that ■ the notes are not to be enforceable until the deficiency on the rejected securities shall be ascertained.
    3. Subrogation—When exists.
    A director of a bank who gives a note to secure questionable assets of the bank, is not entitled to subrogation with respect to such assets until he pays the note.
    ■4. Bank and banking—Set-off.
    A depositor in an insolvent bank may set off his deposit against a note given by him to the bank, to the amount of said deposit, upon application to the court.
    S. Samf.
    Such application may be deemed to have been made at the time of the service of the answer setting up the counterclaim.
    <6. Same—Interest. .
    Where a deposit in the bank does not bear interest, the receiver is not required to pay interest in the absence of proof that he has earned any while the money remains in his hands.

      Appeal from a judgment in favor of plaintiff, entered on the decision of the court without a jury.
    Charles E. Hughes and Seward Baker, for app’lt;
    George M. Mackellar and Lexow, Mackellar & Wells, for resp’t.
   DALY, C. J.

At the time defendant made the note in suit he was a director of the Harlem Biver Bank, the payee, and the note was one of several aggregating $50,000, made by the directors, secured by collateral, and delivered to the bank to make good an impairment of its capital, which had been found by the state superintendent of banking, acting under the provision of the general banking law, which provides that, whenever he shall have reason to believe that the capital stock of any corporation or individual banker, subject to the provisions of the act, is reduced by impairment, or otherwise, below the amount required by law, or-by its articles of association, he shall require the corporation or banker to make good the deficiency. Laws 1892, chap. 689,. § 17. Acting under this statute, the superintendent, in November, 1893, caused the chief engineer of the banking department to investigate the condition of the Harlem Biver Bank. The examiner objected to certain securities, to the nominal value of $65,000, which he found among the assets of the bank, and which he deemed impaired the capital of the bank to the extent of $50,000. He announced that he would have to close the bank, unless the directors’ made the impairment good by cash, or by their notes secured by mortgages; and thereupon the note in suit, with others, were given by the directors, in order that the bank might continue business, which it did until April 26, 1894, when it was closed by the superintendent of banldng. The plaintiff was appointed temporary receiver of the bank in May, 1894, and received the notes among the other assets of the bank. It thus appearing that the notes in question were delivered by the directors to the bank to make up an impairment of the assets, in-order to satisfy the superintendent of banking, and to give it credit with the public for the receiving of deposits and doing its general business, the makers of the notes are estopped, as against the receiver, who represents the creditors of the bank,, from alleging want of consideration. They are also estopped from contesting their liability, on the ground of the alleged agreement between them and the cashier of the bank that the notes were not to be enforceable until the deficiency upon the rejected securities should be ascertained. Hurd v. Kelly, 78 N. Y. 588; Best v. Shiel, 79 id. 15. In the case first cited the defendant executed a bond to a bank whose assets were impaired, to enable it to continue business, with the request, on the part of the obligors, that it should do so, and with the knowledge of the bank department. The defenses of the want of consideration, that the transaction was in violation of rniblic policy, that there was a fraudulent suppression and concealment by the bank officials of its true condition, and that the bond was delivered upon condition that others should execute it, who failed to do so, were all overruled; and it was not only held that the instrument was made upon good consideration, but that the obligor was es-topped from setting up those defenses; the court saying that the dealings between him and the officials of the bank ought not in justice to be allowed to affect the security given by him for the protection of those dealing with the bank, and who must be presumed to have relied thereon in their dealings, and that, having allowed the note to be treated as an asset, and the public to deal with the bank, on this assumption, until the bank had become insolvent, he was estopped from setting up the defenses. Hurd v. Kelly, above. In the second case a mortgage had been given to the bank, upon requirement of the bank department, to make up a deficiency in the assets, and enable the bank to continue business; and it was held that, as it was in consequence of this and other securities given by the trustees that the superintendent of the banking department, acting officially for the public and all the creditors of the bank, permitted it to continue its business, and that, in reliance upon this and other securities, depositors were induced to make and leave deposits in the bank, it was upon the clearest principles of justice and morality that the defendant should be estopped from attacking the validity of the mortgage. Best v. Shiel, above; citing Farrar v. Walker, 3 Dill. 506, note, Fed. Cas. No. 4,679.

These authorities dispose, not only of the defense of want of consideration, but of an agreement that the notes should not be enforceable until the amount of deficiency upon the rejected assets was ascertained. The creditors and depositors cannot be affected by such an arrangement. But, treating the defendant and the makers of the other notes as sureties entitled to a subrogation with respect to the $65,000 of questionable assets which their notes were intended to secure, the receiver’s right to hold such assets until the whole indebtedness of the sureties is paid cannot be disputed, and, until payment of the whole $50,000 by the sureties, they are not entitled to such assets. Farebrother v. Wodehouse, 23 Beav. 18; Grubbs v. Wysors, 32 Grat. 127; Receivers v. Wortendyke, 27 N. J. Eq. 658; 14 Am. & Eng. Enc. Law, 701, etc.

The defendant was allowed, as an offset or counterclaim, the amount of his deposit in the bank, but without interest. Interest was disallowed, on the ground that, until -demand or actual insolvency of the bank, the deposit was not due and payable, and interest -did not run upon the claim. Set-off may be allowed, as against a temporary receiver, on application to the court, People v. St. Nicholas Bank, 76 Hun, 522; 58 St. Rep. 712; and such application may be deemed to have been made at the time of the service of the answer setting up the counterclaim; but, as the defendant’s deposit in the hank did not hear interest, there seems to be no ground for requiring the receiver to pay interest, in the absence of proof that he had earned any while the money remained in his hands.

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

All concur.


author: SILKMAM, S.

text:
    In the Matter of a Proceeding for the Taxation of the Estate of Sophia L. Cobb, Deceased, under the Transfer Tax Law.

      (Surrogate’s Court, Westchester County,

      Filed October, 1895.)

    1. Wills—Construction—Equitable conversion.
    An equitable conversion of reality into personalty only arises from testator’s intention, expressly or necessarily implied.
    2. Same.
    It is not effected by reason of a naked power of sale given to the executors where the amount oí the legacies does not exceed the value of testator’s personal property.
    3. Tax—Transfer.
    Where the direct devises of reality would be exempt from the transfer tax, a legacy which is payable from the proceeds of such reality will also be exempt.
    Appeal from an order confirming the report of the appraiser.
    James M. Hunt, for app’lt;
    Leonard A. Bradley, for resp’ts.
   SILKMAM, S.

The appraiser in this matter has given the question raised by the appellant careful consideration, and has aided the court with a very well-considered opinion, and the com elusion that there was no equitable conversion intended by decedent is correct.

Appeal dismissed on the opinion of the appraiser, with $10 costs, to be paid by the county treasurer.

The opinion of Mr. Middlebrook, the appraiser, is as follows: This proceeding to determine the question of the amount of the transfer tax to be assessed upon the legacies under Mrs. Cobb’s will involves a construction of the will by the appraiser. It therefore seems proper to submit the reasons for the findings contained in the report filed herewith. It is claimed by the county treasurer that the will works an equitable conversion, and that therefore the entire estate is subject to taxation. While ■ there might be questions raised as to whether, under the will, the legacies are charged upon the testatrix’s real estate (Lupton v. Lupton, 2 Johns. Ch. 623; Hoyt. v. Hoyt, 85 N. Y. 142,149,150; Briggs v. Carroll, 117 N. Y. 288-292; 27 St. Rep. 468; Morris v. Sickly, 133 N. Y. 456; 45 St. Rep. 735; Hogan v. Kavanaugh, 138 N. Y. 417; 52 St. Rep. 884), that question may be eliminated as not being necessary to the determination sought. The questions then remaining are: (1) Did the will work an equitable conversion? And (2) if there be an equitable conversion, does the tax attach? Taking these in order:

.1- “Conversion arises only from an express, clear, and imperative direction, or from a necessary implication of such express direction. The question of conversion is one of intention, and the question is, did the testator intend to have his real estate converted into personalty immediately upon his death? If he did, a court must give such intent effect, and treat the realty as personal property from that time. If, however, he intended to give the executor or trustee under his will a power to convert, leaving it discretionary with him to convert or not, the conversion will depend on the will or discretion of the executor or trustee, and will not be regarded as consummated in law until it is consummated in fact.” Clift v. Moses, 116 N. Y. 144,157; 26 St. Rep. 405. The cases fall into two classes in accordance with the above definition. Those of the first class, where the will contains “an express, clear and imperative direction,” are fairly instanced by Moncrief v. Ross, 50 N. Y. 431, and McDonald v. O’Hara, 144 N. Y. 566; 64 St. Rep. 236, and need no comment. The other class, where the intent to convert is implied, is illustrated by Dodge v. Pond, 23 N. Y. 69; Power v. Cassidy, 79 id. 602; Lent v. Howard, 89 id. 169; and Delafield v. Barlow, 107 id. 535; 12 St. Rep. 494. An examination of these cases show that in each instance the conversion is predicated upon the intent of the testator, as evidencing an imperative direction, implied as necessary to carry out the scheme of the will. It is the intent that governs, and not the practical convenience of treating the decedent’s estate in one form rather than another. "While inquiry into the conditions existing at the time of the making of the will is permitted, it is solely for the purpose of aiding the court in arriving 'at the intent, and convenience and expedience have nothing to do with the solution of the question. 27o express provision being made in the will for a conversion of the realty into personalty, every intendment is antagonistic to such an intention. If such had been the intention, it is to be presumed that apt and appropriate language would have been used to convey it, commanding and directing that this should be done. It would not have been left to be inferred by the use of ambiguous terms or doubtful phraseology, but the will would have contained positive provisions indicating the testator’s intention. In White v. Howard, 46 N. Y. 144, 162, it was laid down by G-rover, J., that, “to constitute a conversion of real estate into personal, in the absence of an actual sale, it must be made the duty of and obligatory upon the trustees to sell it in any ., event. Such conversion rests upon the principle that equity con-'' siders that as done which ought to have been done.” Hobson v. Hale, 95 N. Y. 588, 605. “While the will should be supported if it can be done upon any fair construction of its provisions, this rule has never been carried to such an extent as to hold that an out and out conversion is to be inferred in the absence of imperative directions, expressed or necessarily implied, to the executors to sell the real estate.” Id. 608, 609. The will of Mrs. Cobb is simple, and presents no ambiguity. It contains (1) certain legacies of specific sums, aggregating $3,500 in money; (2) provisions for two trust funds, aggregating $7,000, both of which lapsed by reason of the death of the beneficiaries before the testatrix; (3) a general bequest and devise of the rest, residue, and remainder of her estate, real, personal, and mixed, to four children; (4) a power of sale by the executors. This will was executed November 14, 1885. By codicils executed in 1,890 and 1891 she made a further'bequest of $1,500 and revoked one of $500, so that the total of the legacies and trust funds provided for was $11,500. The legacies amounted at her death to only $4,500, the trusts being eliminated, supra. The inventory of the personal estate shows a total of $5,100. Upon these facts, that the will provides for the distribution of $11,500 as personalty, and that it contains a naked power of sále, and that the inventory shows only $5,100 of personalty, it is-urged in behalf of the county treasurer that there is an equitable conversion. It is difficult to see how this contention can be supported. The language of the will would equally apply to realty and personalty. Id. 598. And, moreover, it seems to recognize the distinction between them by the words employed. The facts are not such as to disclose such an intent to convert on the part of the testatrix An examination of the inventory shows that the par value of the personal estate would be $10,000, and that the depreciation in the securities shown herein has occurred since the making of the will and codicil. It may very well be that testatrix did not change her will in view of the depreciation and consequent shrinking of her personal estate by reason of the fact that the death of the beneficiaries of the $7,000 had produced a lapse of her bequests to that extent. Outside of the will itself there is little evidence to show what was in her mind as pvidencing her intent. There is nothing to indicate but that, at the time of makinh her will, testatrix’s personal estate fully equaled or exceeded $11,500. The rule which might be deduced from McCorn v. McCorn, 100 N. Y. 511, would, therefore,' not apply. The reasoning in Briggs v. Carroll, 117 id.-"288, 292; 27 St. Bep. 468, on the question as to whether a legacy was charged on real estate, would seem to be equally applicable to this case. In that case Judge Binch says: “We are very for from saying that a residuary clause, blending in its form of disposition both real and personal estate, will produce a charge upon the former for the payment of legacies wherever the personal estate proves insufficient. No such doctrine can be justified. The deficiency must exist when the will is executed, and be so great and so obvious as to preclude any possible inference that the testator did not realize it, or that he may have expected and intended before his death to remove the difficulty.” This is especially pertinent in view of the fact that the questions involved herein do not arise independently of the question whether the legacies are charged upon the real estate. Ho such deficiency is shown to have existed at the time of the making of the will as, coupled with the will, would warrant the conclusion that the testatrix intended that her real estate should be converted into personalty, and the consequent implications of an imperative direction to convert. There was, therefore, no conversion as of the date of testatrix’s death. If the executors did sell under the power, the conversion should not be “regarded as consummated in law until it is consummated in fact” (Clift v. Moses, supra), and such sale does not make the proceeds taxable as personalty, the taxation being of the date of the death.

2. It is also our opinion that the estate would not be taxable even if the will did work an equitable conversion of the real estate into personalty. It must be borne in mind that this proceeding is under a statute imposing a tax. That statute must be reasonably strictly construed against the state. It might be seriously doubted if this equitable theory could be recognized at all in a statutory proceeding such as this. But it has been by a surrogate of a remote western county (In re Wheeler’s Estate, 1 Misc. Rep. 450; 51 St. Rep. 513), who says (at pages 455, 456, 1 Misc. Rep., and 51 St. Rep. 513): “It is evident that, if decedent makes such a testamentary disposition of his real estate as to convert it into personalty, the shares of the legatees under such a will are liable.” Satisfactory as his reasons for so holding may have been to him, although they are not disclosed in his opinion, diligent search does not disclose that they have been followed by any other court. Since the publication of that decision the question seems to be necessarily decided by the decision of the court of appeals in Matter of Hoffman, 143 N. Y. 327; 62 St. Rep. 245. This last case calls our attention very sharply to section 22 of the act (Laws 1892, chap. 399), which reads: “The words ‘estate’ and ‘property,’ as used in this act, shall be taken to mean the property or interest therein of the testator * * * specifically exempted from the provisions of this act, and not as the property or interest therein passing or transferred to individual legatees.” The property of the testatrix sought to be reached was real estate, which by section 2 is exempt, in this case. Even if it be converted and be distributed as personalty, “the property or interest therein of the testator” was realty. The conversion does not occur until after the death, and until after the decc- * dent parts with all “estate” ond “property.” It might also be remarked that grave doubt would exists if it ever entered the minds of the legislators by whom this act was passed, vdien they sought to exempt real estate from the operation of the act, that such things as equitable conversions existed; still less, that the courts.would attempt to insert them in the act. The purposes and theory of the exemption of real estate from the tax are apparent. Personality is ordinarily easily converted, and can, therefore, easily respond to such a tax without special hardship. On the other hand, real estate generally is slow of sale, and its conversion is a matter of time and opportunity. A tax on real estate would inevitably work hardships and sacrifice. For it must be borne in mind that the act applies to the remotest rural district as well as to the metropolitan centers. While it might be an easy matter to raise money in the latter on real estate, it is frequently and almost invariably a matter of difficulty, and not infrequently an impossibility, to do so in the former. The fact that probably ninety per cent, of the devises of real estate are to the classes exempt by section 2 of the act would make it all the more evident that the intent of the legislature was to altogether exempt real estate, except as to collaterals, conversion or no conversion.


author: SMITH, J.

text:
    C. Lavern Ludlow, Pl’ff, v. Groton Bridge Company, Def't.

      (Supreme Court, Tompkins Circuit,

      Filed November, 1895.)

    Master and servant—Co-servant.
    Where a master has furnished competent service and safe machinery, the use of that machinery, however negligent and by whomsoever used, is not attributable to the master.
    Action by C. Lavern Ludlow against the Groton Bridge Company for injury received by plaintiff, while in defendant’s employ, through the alleged negligence of Mr. Hemmingway, foreman of defendant’s shop.
   SMITH, J.

(orally).—I have taken some pains to examine this question. There is a case where a foreman had charge of removing a hatchway. He had the sole right to employ and discharge men. The hatchway could be safely removed only by two or three persons acting together. The foreman ordered one person to remove the hatchway, and, although he was foreman in charge of the work, Ms act was held to be the act of a fellow servant. There is another case where there had been some blasting of rocks, and a foreman was in charge of the blasting, and one of the fuses did not go off, and the foreman directed his men to proceed, nevertheless, to work near where this fuse was. After-wards the fuse did go off, and injured the parties. Although they were working directly under' the charge of the foreman, and he had the sole charge of the work, and although the master’s duty to furnish a safe place to work, it was held that, where the'place was rendered unsafe by the negligent act of a fellow servant, that was not the act of the master, for wMch he could be held responsible; and it was held that the foreman was a fellow servant. There is another case where a foreman who had charge of men, and of placing them and directing them, had pnt "a man under an embankment to work, which embankment xvas unsafe, and which the foreman had reason to believe was unsafe, because it had been made unsafe by the acts of the foreman himself; and it was held that notwithstanding the act of the foreman and his having charge of the location of the men, and its being the duty of the master to furnish a safe place to work, his act was not the act of the master, but was the act of a felloxv servant. The later cases have all established the rule that it matters not what may be the position of the servant, whether high or loxv, whether a foreman or a mere day laborer, his act is not to be judged by the position as representing the master or representing a coservant, but whether he be the master or a coservant; xxdiether he be the alter ego of the master or a coservant is to be determined by the acts done. So far as furnishing safe apparatus is concerned, the act of the humblest mechanic who furnishes the apparatús is the act of the master. In the Cortland Case the engine had become unsafe, and it réquired to be repaired, and a mechanic was employed to repair it; and his negligence I held there to be the negligence of the master, because it was in the performance of a. duty xvhich the master owed, and that duty was to furnish safe machinery, and asafe place to work. It has become settled, hoxvever, noxv, that if a master has furnished competent servants and safe machinery, the use of that machinery, hoxvexur negligent, and by xvhomsoever used, is not attributable to the master. I think the same case practically establishes that. But, xvhether it does or not, there are cases, and many cases, which hold that very conclusively. In this case the master had furnished two cars,—:two different kinds of cars or trucks,—the high truck and the loxv truck. It does not appear x\7hy one xvas used in preference to the other. He had alse furnished the proper stakes or side bars to those trucks, but they xvere not used. It is impossible that a master himself can control the detail work of any corporation or any private business of any size. This injury arose "from negligence which was connected with the detail work, and I am frank to say that, while this morning I was in some doubt, from the examination I have made my" doubt has been removed, and I think there is no possible question, and that this case cannot be sustained, even if Mr. Hemming-way was negligent, which we xvill assume for the argument; for these cases hold that his negligence is not the negligence of the master, but is purely the negligence of a co-servant. This is one of those unfortunate accidents which no one can be made to pay for; at least, no employer. ' Whatever liability there may be on the part of Mr. Hemmingway to this man I do not discuss, but, so far as the liability of this defendant to this plaintiff, I can find no such liability in the facts here proven. I assume that there is no proof in this case whatever to go to the jury upon the question of the competency of Mr. Hemmingway. I cannot see any proof'that will make that an issuable fact, and the motion for nonsuit must therefore be granted.


text:
    James Dunning, App’lt, v. Henry R. Jacobs, Resp’t.

      (New York Common Pleas, General Term,

      Filed December 23, 1895.)

    1. Negligence—Theater.
    The proprietor of a theater is not bound to insure the attendants against any accident or injury whatever, but only such as a prudent man would have foreseen as a likely result of the condition of the theater.
    2. Same—Similar accident-
    That it never happened before, and is in its character such as not to naturally occur to prudent men to guard against its happening, cannot, if in the course of years, it does happen, furnish good grounds for a charge of negligence -in not foreseeing its possible happening and guarding against that remote contingency.
    8. Same.
    A person having knowledge of a defect or obstruction is bound to use care, according to the circumstances, to avoid injury to himself or property.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.
    Gilbert D. Lamb, for pl’ff;
    Samuel J. Goldsmith, for def’t.
   BOOKSTAVER, J.

This action is brought to recover damages for injuries resulting from an accident occurring in defendant’s theater. On the evening of May 2, 1892, the plaintiff purchased a ticket entitling him to a seat in any unoccupied part of the upper gallery of defendant’s Third Avenue Theater. On first entering the gallery, he seated himself in the last or fourth row of seats. Not being able to see well from this place, he went around to the north side. There the first two rows of seats, or benches rather, were filled with people. The third row, however, was free, or nealy so. Plaintiff walked down the aisle to the third row, turned into that row, and had advanced some three or four feet when he stepped on something slippery, or stumbled, and fell, either sideways or partially forward, over the two intervening rows of seats, filled with people, and the guard rail on the parapet into the body of the house, some forty feet below, sustaining severe injuries. The point at which he stood immediately prior to the fall, to the guard rail, was at least five feet six inches distant, and the guard rail was one foot two inches above the parapet, which was two feet high. The gallery floor was built at an angle of fifty-five degrees from a horizontal line. It was also shown that in a few places the guard rail was somewhat loose the day after the accident, but was in position everywhere. Upon this state of facts, the complaint was dismissed at the close of the plaintiff’s case, with directions that the exceptions be heard at the general term in the first instance.

To entitle a plaintiff to go to the jury in an action of this kind, he must establish affirmatively that he was without fault, and that the defendant was guilty of some negligence. It is clear from the evidénce that the primary cause of the accident was the slipping or stumbling of the plaintiff on the floor of the third row of seats. He says: “My foot slipped under me; for what I cannot say, but over I went, and I knew no more until I found myself in Bellevue, the next morning.” He further testified he did not know whether he slipped or stumbled, and then continues: “There was something slippery on the floor. I do not know what tripped me; something slippery on the floor; I cannot say what it was. * * * I do not know what made me fall; only some: thing slippery under my feet.” There is not a particle of evidence that the defendant was in any way guilty of negligence which caused this slipping or stumbling. O the other hand, it was either the plaintiff’s- heedlessness in not looking where he stepped, or the result .of an unavoidable accident, in neither of which cases would the defendant be liable. The result of this slipping or falling was to precipitate the plaintiff on or over the persons sitting in the first and second rows, and over the guard rail, into the orchestra. As the distance from where he stood when he fell, to the guard rail, was five and one-half feet, it is inconceivable that he would have fallen over the parapet had the seats been empty. His falling upon the persons sitting in those seats naturally caused an involuntary recoil on their part, which probably gave him an impetus over the guard rail, and surely this involuntary act on the part of the guests in the theater cannot be charged as negligence on the part of the defendant, provided he was not responsible for the situation giving rise to the fall.

But it is claimed on behalf of the plaintiff that the defendant was negligent in that he did not have a second guard rail on the parapet, high enough to prevent such an accident;' and that the one that was there was not firm. The only proof as to the looseness of the guard rail was its condition the day after the accident happened, when several of the stanchions supporting the rail were found to be loose. But it was not shown that they were loose before the accident at the point where the plaintiff struck the rail, if he struck at all; and it is difficult to understand how this in any way contributed to the accident, as the stanchons were fastened to the floor, and were all in position on the morning that some of them were discovered to be loose. Mor can we see why the defendant was guilty of negligence in not having a second guard rail higher up, to prevent such an accident. The guard rail, as we understand’ it, was not originally erected for the purpose of preventing such a accident, but as a provision for safety to those sitting in and missing along the front row. Although this theatre had been used for many years previously, no such accident had ever occurred; and the question then comes down to this, should such an accident have been reasonably foreseen and provided against? The rule must be applied with reference to-the situation of the property and its apparent arrangement for the conduct of the business, and in such cases the line must be drawn between suggestions and possible precautions and evidence of actual negligence, such as ought reasonably to be left to a jury. Larkin v. O’Neill, 119 N. Y. 225; 29 St. Rep. 34. Of course,, the possibility of slipping would be apparent to any one; but that such a slip would cause a fall over the space of five and one-half feet between the step and the guard rail, we think, is scarcely to-be apprehended.

It may be conceded in this case that the plaintiff was not a mere licensee, but was invited to the theater for the benefit of the defendant. In that case the rule of law is that the defendant must exercise reasonable care and diligence to malee and keep the place to which the plaintiff was invited in a reasonably safe condition. Camp v. Wood, 76 N. Y. 92. The defendant was not. bound to insure the plaintiff against any accident or injury whatever, but only sueh/as a prudent man would have foreseen as a likely result of the condition of his theater; and his duty when he-made the place as little dangerous as such a place could reasonably be, having regard to the contrivances necessarily used in carrying'on the business. Bigelow, Lead. Cas. Torts, 682; Hart v. Grennell, 122 N. Y. 371; 33 St. Rep. 553; Larkin v. O’Neill,, 119 N. Y. 221; 29 St. Rep. 34; Dubois v. City of Kingston, 102 N. Y. 219; Loftus v. Ferry Co., 84 id. 460; Heath v. Met. Exhibition Co., 11 N. Y. Supp. 357. A second guard rail might- or might not have prevented the accident. It would certainly have materially interfered with the use of the gallery for the-purposes for which it was intended, preventing a view to a considerable extent of the stage. With equal force it might have been urged that the defendant was bound to supply strong netting in front of the parapet to catch any one who unwarily fell over the parapet that was actually there.

Plaintiff , also claims that the gallery was improperly constructed, in that its floor was at an angle of fifty-five degrees; and a. witness, an architect, was called on behalf of the plaintiff to prove this fact; but he did not testify that this was a dangerous angle, or greater than necessary to afford an unobstructed view of the stage, or greater than any other theaters similarly constructed. On the other hand, he testified: “In order for the theater to be used for the purposes of its business, the second row of the. gallery must be higher than the first, and so on until you come to the top of the gallery.” And that it was safe under ordinary circumstances is confirmed by the.fact that it had been used for many years without anv such accident happening. Lafflin v. Buffalo & S. W: Railroad Co., 106 N. Y. 136; 8 St. Rep. 596. That which never happened before, and which in its character is such as not to actually occur to prudent men to guard against its happening," cannot, if, in the course of years, it does happen, furnish good grounds for a charge^ of negligence in not foreseeing its possible happening, and guarding against that remote contingency. Hubbell v. City of Yonkers, 104 N. Y. 434, 439; 5 St. Rep. 730.

But, if the accident occurred through the defective construction of the gallery, the plaintiff was fully aware of the defect. He was forty years old, had been accustomed to attend the theater for six or seven years, had been in the gallery at least half a dozen times, and once in the very part from which he fell. He himself says: “There was nothing to prevent me from seeing the construction of the gallery to the right or left. * * " The seat and the parapet and the guard on it were the same then (speaking of a previous visit) as on the night I was injured.” It is a familiar principle that a person having knowledge of a defect or obstruction is bound to use care, according to the circum-’ stances, to avoid injury to himself or property. The arrangement of this gallery was just as obvious to the plaintiff as it was to the defendant. He had ample opportunity for observing it, and cannot plead in his own behalf his neglect to do so.

W e therefore think the complaint was properly dismissed, and that the exceptions should be overruled, and judgment ordered for the defendant, with costs.

All concur.


author: HERRICK, J.

text:
    In the Matter of John M. Batterman.

      (Supreme Court, Albany Special Term,

      Filed November 1, 1895.)

    Election—Residence in charitable institution.
    Section 3, article 3 of the Revised Constitution does not affect the right to vote of any person, who acquired a residence in a charitable institution before the Constitution was adopted.
    Application to compel the board of registry of the second election district of the town of Colonie to place the petitioner’s name on the registry list of said district.
    Robert H. McCormack, Jr., for petitioner;
    Stedman, Thompson & Andrews, opposed.
   HERRICK, J.

The petitioner asks for an order directed to the board of registry of the second election district of the town of Colonie, Albany county, directing such board of registry to place his name upon the registry list of said election district.

The board of registry has refused to register the petitioner, and basis its refusal upon section 3, article 2 of the Constitution of the state, which reads as follows: “For the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his presence or absence while employed in the service of the United States, nor while engaged in the navigation of the waters of this state, or of the United States, or of the high seas; nor while a student of any seminary of learning; nor while kept at any almshouse or other asylum, or institution wholly or partly supported at public expense or by charity, nor while confined in any public prison.”

With great hesitation I have arrived at the conclusion that the order prayed for should be granted.

The petitioner is, and has been since April, 1893, an inmate of what is known as the “Home for Agfed Hen,” an institution, situate in said second election district of the town of Colonie.

The object of the existence of this institution is stated to be “The relief, care, culture and support of needy or distressed old men.” And it is provided by the by-laws of such institution that “Eespectable aged, indigent men, born in the United States of America, may, by vote of the trastees, be placed on the list of beneficiaries, and may be received into" the home and be supported therein by relatives .or friends, in whole or in part, or at the sole expense of the society, as the circumstances or necessities of the the case may seem to require.” And it is further provided, that in no case whatever, except by the vote of three-fourths of all the members elected to the board of trustees, shall any one be put on the list of beneficiaries but those who are natives of the United States of America, are at least sixty years of age, and have resided in the county of Albany during the ten years next preceding their application for relief. And. it is further provided by the by-laws that “As a general rule, those received who are to be supported entirely by the society will be required to pay two hundred and fifty dollars entrance money.”

The society is supported entirely by private charity, except the entrance fee of $250 above referred to, receiving no assistance from the state or local authorities, except relief from taxation upon its property.

The petitioner’s entrance fee to the institution was made up from private subscriptions by former business acquaintances.

The institution, as I have described it, is one that plainly comes within the provisions of section 3, article 2, of the Constitution, and as to those inmates, at least those who have become such since the 1st of January, 1895 (the time when the present Constitution took effect), it must be held that their being domiciled there does not give them a residence within the election district which entitles them to register or vote there. But it is contended upon the behalf of the petitioner that he had acquired a residence in such election district prior to January 1, 1895, and that at that time the Constitution made no reference to inmates of institutions like the one in question, section 3, article 2, of the Constitution then reading as follows: “Bor the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his presence or absence, while employed in the service of the United States, nor while engaged in the navigation of the waters of this state or of the United States; or of the high seas; nor while a student of any seminary of learning; nor while kept at any almshouse, or other asylum, at public expense; nor while confined in any public prison.”

•It appears from the papers before me upon this application that the petitioner both registered and voted in this same election district at the election held in November, 1893.

There is nothing in the language of section 3, article 2, of the Constitution, as it now exists, which indicates that it was intended to be retroactive; it must, therefore, be held to be prospective in its operation and effect, and if a residence had been already acquired in any institution of the kind described in the section, it will not be held to have been taken away by this provision of the Constitution.

It has been said of this section of the Constitution, as it was before the charge made in it by the present Constitution, that “The provision (art." 2, section 3) disqualifies no one; confers no right upon any one. It simply eliminates from those circum* stances the fact of presence in the institution named or included within its terms. It settles the law as to the effect of such presence.” Silvey v. Lindsay, 107 N. Y. 55-61; 11 St. Rep. 185.

That is to say, the presence of one in such an institution in and of itself neither gives him a right to vote in the election district where such institution is situated, nor deprives him of his right to3vote in the election district where he resided and voted before becoming an inmate of such institution. ■

So, when the new Constitution came into force January 1, 1895, this provision (section 3, art. 2) disqualified no one, conferred no rights upon any one.

Under the Constitution as it existed prior to January 1, 1895, it seems to me there was no prohibition to a person acquiring a new residence by becoming an inmate of an institution of the kind in question here; it was not one of the institutions mentioned in the Constitution as it then existed. Whether a person by becoming an inmate of it changed his residence was largely a question of fact and intention, as in all other cases of change of residence.

The nature of the institution itself, as indicated by its name, and the statement of its object, show an intention to provide what should be the last earthly home for the objects of its charity who should become inmates.

The petitioner gave evidence of an election upon his part to make it his legal voting residence, by registering and voting therefrom at the first election after he became an inmate. It seems to me, therefore, that at the time there being nothing in the law to prevent his gaining a new residence by becoming an inmate of the “Home for Aged Men,” the nature of his occupancy of such, institution giving evidence of his intention to permanently remain there, his registering and voting, all, I think, indicate that he had established and acquired a residence for voting purposes prior to January 1, 1895, and such being the case, it-seems to me that the change in the Constitution, taking effect at that time, cannot be held to have deprived him of the right that he then possessed; not that there is no power by constitutional provision to deprive one of such right to vote in a particular locality, or of a right to vote at all, but that the language used is not effectual for that purpose, and was not used with such intent.

Let an order be entered as prayed for in the petition.

Application granted.


author: LEWIS, J.

text:
    Mary Griffith, Resp’t, v. Charles E. Dickinson et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    Appeal—Reversal.
    Where, in an action to determine the location of the dividing line be tween plaintiff's and the adjoining lot, conveyed by him to defendant, the trial justice was misled as to the time plaintiff’s house, which encroached on defendant’s land, was actually built by an error in the stenographer’s minutes of the testimony, it was held that, as the time was important in determining the question of estoppel, a new trial should be ordered to eliminate the mistake.
    Appeal from a judgment in favor of plaintiff.
    George F. Yeoman, for app’lts;
    William B. Hale, for resp’t.
   LEWIS, J.

The parties own adjoining lots, situated upon the westerly side of Lake avenue, in the city of Rochester. Both lots formerly belonged to the plaintiff, and she conveyed to the defendant the lot he now owns and occupies. The negotiations leading to the sale were conducted on the part of the plaintiff by her husband, who died prior to the commencement of this action. A controversy arose between the parties as to the true location of the line between their lots, a strip of land about nine inches in width being claimed by each of the parties. The defendant’s lot was fenced upon both" sides at the time he purchased it of the plaintiff. The defendant testified, upon the trial, that the plaintiff’s husband, while negotiating the sale, represented to him that the lot consisted of the land lying between these fences, and that the lot was fifty feet wide. He further testified that he relied upon these representations, and made the purchase without having the lot surveyed or measured. Soon after the defendant purchased his lot, by an arrangement between him and the plaintiff, the front portion of the fence between their lots was removed, and the ground sodded over.

The precise location of this piece of fence at the time the dex fendant purchased the lot was a matter litigated upon the trial, and the evidence was somewhat conflicting. The defendant’s lot, between his northerly fence and the line now as claimed by the plaintiff, is bnt forty-nine feet and three inches in width, and the plaintiff’s lot is a foot or more wider than her title deed calls for. The preponderance. of evidence, as it impresses us, was rather with the defendant’s contention, but not so much so, perhaps, as to justify a reversal of the judgment for that reason. The plaintiff, a short time before she conveyed to the defendant his premises, had constructed a house upon her portion of the land not conveyed to the defendant, which very slightly encroaches upon the defendant’s lot, as the line is claimed by him. The encroachment consists of_the eaves of her house extending over the line very slightly.

It appears from the opinion of the trial judge, which is printed .in, the case, that he understood, when considering and deciding the case, that it was established by the evidence that the plaintiff Jouilt her house after she had conveyed the lot to the defendant, and that the defendant, while the house was being built, resided in the house upon his lot, and must have been aware of the location of plaintiff’s house, and made no objection or complaint that it was encroaching upon his land. This fact, if true, was very important evidence against the defendant, and justified the trial •court in holding that the defendant was estopped from thereafter claiming that the plaintiff’s house encroached upon his land. It is a conceded fact that plaintiff’s house was built before the defendant purchased his place, and the defendant was entirely ignorant, so far as it appeared upon the trial, of the fact, when he purchased his premises, that any portion of plaintiff’s house extended over the line as now claimed by him. The trial justice was misled as to the time the house was actually built by an error in the stenographer’s minutes of the testimony; the stenographer having erroneously written the word “after” when it should have been “before,” and thus made it appear that the house was constructed after the defendant purchased his lot. This, as stated, was an important piece of evidence, if true. How much it influenced the mind of the trial justice we cannot know. Had the plaintiff brought an action of ejectment to recover possession of the strip of land, the defendant would have been entitled to a new trial under the statute. Justice demands, we think, that the case should be retried, so that this important and significant error in the evidence can be eliminated from the case.

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

DWIGHT, P. J., and WARD, J., concur. BRADLEY, J., not voting.


text:
    In the Matter of the Erie Malleable Iron Company, Limited. In the Matter of the Gould Coupler Company.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    1. Deposition—Examination of party.
    An order for the examination of the defendant, to aid plaintiff in framing his complaint, will not be denied on the ground that he has failed to perform his part of the contract on which he is about to sue.
    8. Same—Relief by another action.
    Nor will such order be denied for the reason that he can, by an action for an accounting, elict the information sought.
    Appeal from an order, denying a motion to vacate the order ■ granting the application for defendant’s examination.
    B. F. Dake, for app’lt;
    Charles A. Pooley, for resp’t.
   LEWIS, J.

The order requiring the Gould Coupler Com* pany and its officers to appear before a referee with its books, and submit to an examination, was made upon the affidavit of Mr. Benjamin J. Walker, setting forth that a written contract was entered into between the two companies named in the above title, on the 26th day of January, 1891, by the terms of which contract the Erie Company granted the Gould Company the right to use all the processes which the Erie Company was using, or might thereafter use, jn the manufacture of malleable iron, and furnish the services of Mr. Yralker to superintend the construction of a malleable iron plant, which was to be erected by the Gould Company, and to furnish to said Gould Company all patterns for furnaces, plates, etc., required in said construction; in consideration whereof, the Gould Company agreed to pay, in quarter-yearly payments, to said Erie Company certain royalties mentioned and provided for in said contract, for the use of the processes mentioned, upon all the material which the" Gould Company should manufacture and ship, after the completion of the plant. It was further stated in said affidavit that the plant was constructed and completed under the supervision of Mr. Walker, and that the Gould Company had manufactured and shipped, under said contract, large quantities of such material, amounting to many thousand tons, and that, although the said Erie Company had in all respects performed the agreement upon its part, the Gould Company had neglected and refused to furnish to the Erie Company statements of the tonnage of metal produced, manufactured and shipped within the terms of said contract, and had failed and refused to pay the royalties, or any part thereof, and is indebted to the Erie Company for the amount of said royalties; that the Erie Company was about to commence an action against the Gould Company to recover said royalties, but was ignorant of the amount of material which had been manufactured under the contract, and had no means of obtaining the facts, but from the examination of said company and of its officers, whom it was alleged had the desired information, but had repeatedly refused to furnish it to the Erie Company; and that such examination was desired in order to enable the Erie Company to frame its complaint, which would be for a sum of money only. The affidavit contained proper allegations as to the residence of the two compa-nies and their officers. A motion was made by the Gould Company, at the Erie special term, to set aside said order. The motion was founded upon the affidavits of the president and the treasurer of the Gould Company, and upon the affidavit of Mr. Walker, upon which the original order was granted. • This appeal was taken from an order denying the motion.

The affidavits of the president and treasurer contained allegations tending to show that the Erie Company had failed to perform the contract upon its part, and that the Gould Company had not used, to any extent, the processes mentioned in the contract. The contract referred to was made in the city of Buffalo, ■ and the alleged cause of action arose in the state of Hew York. We are satisfied, after an examination of this case, and the authorities to which our attention has been called, that there is very little, if any, merit in the appeal. The facts present a case coming peculiarly within the provisions of sections 870-874 of the-Code, which provide for such an examination of a person about to become a party to an action. While it is stated, in the affidavits of the officers of the Gould Company, that the Erie Company has failed to perform its contracts, and hence has no claim upon the Gould Company, that question should be litigated upon the trial of the action, and not upon the hearing of such a motion as this. The information sought is presumably within the exclusive knowledge of the Gould Company, and presumably is contained in its books. It was its duty to furnish to the Erie Company statements of the tonnage of metal produced, manufactured, and shipped under said contract. It is claimed by the appellant that an action in equity for an accounting might be instituted, and the facts set forth elicited upon the trial of such action. The respondent is not compelled to resort to that form of action. In order to intelligently frame a complaint in an action at law, it is entitled to the examination provided for by the order.

The order appealed from should be affirmed, with ten dollars costs and disbursements of the appeal.

Order affirmed, with ten dollars costs and disbursements.

BRADLEY, WARD and DAVY, JJ., concur.


author: BISCHOFF, J.

text:
    John Murphy, Resp’t, v. Robert McWilliam et al., App’lts.

      (New York Common Pleas, General Term,

      Filed December 27, 1895.)

    Trial—Objections to evidence.
    In an action to recover for injuries caused by the fall of a derrick, evidence of the weight of a certain stone whose position and dimensions were shon won the diagram of the premises, and that the derrick was insufficient to support a stone of that weight, is erroneously received, where the stone in question had not been proven to be the one actually in process of hoisting at the time of the accident, and is ground for reversal where the error in the reception of the testimony was not cured nor the jury instructed to disregard such testimony.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    Abm. J. Elkus, for app’lts;
    Thos. M. North, for resp’t.
   BISCHOFF, J.

For error in the reception of certain evidence, which might very clearly have prejudiced the appellants, we are constrained to reverse this judgment. The plaintiff sought to charge the defendants with an injury sustained by him through the fall of a derrick used by them in hoisting and placing stone for a certain building, upon the erection of which building plaintiff was employed, but by another contractor, and in a different class of work. In support of his case the plaintiff offered in evidence a diagram, made a few days after the accident, showing the position of a certain stone upon the scene of operations, in the course of the hoisting of which it was claimed that the derrick gave way, and the dimensions of this stone, as it appeared upon the diagram, were shown. Under objection and exception taken by the appellants upon the ground that the stone in question had not been proven to be that actually in process of hoisting at the time of the accident, a witness was permitted to testify that such a stone weighed eight and one-balf tons; and thereupon an expert was called by the plaintiff, who gave evidence—still under like objection and exception—that a derrick such as that used by the defendant was insufficient in strength to support at stone of that weight. At' no time, although counsel had promised to connect it, was any foundation for this evidence given during the trial; and while it may be as claimed, that, apart from the plaintiff’s proof, the jury might have found an inference of negligence from the defendants’ own evidence, they were certainly not bound to do so, since the matter was quite open to-question; and we cannot say that this unauthorized form of proof, as given by the plaintiff, did not have an effect upon the verdict. The point was fully raised by the defendants when the plaintiff rested, and, although a nonsuit could not, upon the evidence, have well been directed at the close of the whole case, the error in the reception of the testimony noted was at no time cured, nor were the jury instructed to disregard such testimony.

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

All concur.


author: VAN BRUNT, P. J.

text:
    The People, Resp’t, v. James Hughes, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 18, 1895)

    1. Larceny—False pretenses.
    If the owner of property, by trick or device, has been induced to part with the possession thereof, intending to transfer an interest therein or title thereto, a criminal appropriation of such property will not be a common law larceny, but the crime of obtaining goods by false pretenses.
    8. Same.
    To constitute a common law larceny, it is not necessary that the prop- . erty stolen should be taken from the possession of the owner by a trespass; but, if a person obtains possession of the property from the owner for "a special purpose, by some trick, device, artifice, fraud or false pretense, intending to appropriate it to his own use and not to the special purpose for which he received it, he is guilty of larceny.
    - 3. Evidence—Larceny—Similar frauds.
    Proof of similar frauds, which have been perpetrated by defendant on other persons whom he has succeeded in making his victims, is competent upon the question of intent.
    4. Appeal—Exception.
    The court, in the interests of justice, even where no exception is taken has the right to reverse for errors in the conduct of the trial; but, will not reverse, even though such errors appear, where the court is satisfied of the guilt of the defendant.
    5. Trial—Charge.
    A refusal to charge the request that, if the court find that the plaintiff and the defendant were legal partners in business, it would not be a crime even though there was an intention to steal upon the part of the defendant, is not error.
    Appeal from a judgment convicting defendant of grand larceny in the second degree.
    Hugh O. Pentecost, for app’lts;
    John D. Lindsay, for resp’t.
   VAN BRUNT, P. J.

The defendant, was charged with stealing $275 from one Frederick Ohallacomb. It appeared upon the'trial that the complainant answered an advertisement which appeared in the Hew York "World, stating that he was looking for a place of business to go in of the ldnd referred to in the advertisement, and that he had $300 which he was willing to put up with an honest man. On the 20th of February the defendant called upon the complainant at his house in Elizabethport, H. J., introducing himself as the writer of the advertisement, and explaining that he had called in answer to the complainant’s letter. The defendant told the complainant that he was in the produce business, and that he was making from $25 to $50 a week, and that he wanted an honest man for a partner, who would put up $300; that he wanted a working man, who was not afraid of work. After talking the matter over, and learning that the complainant had the necessary amount in the bank, it was arranged that the complainant should meet the defendant at the foot of Liberty street the following morning at half past nine o’clock, and the defendant told complainant to have his bank book with him, in case they should find a place suited to them, so that they would have the necessary funds to go on with the business. They met as agreed, and at the defendant’s suggestion they went to look at stores. After looking at places in the neighborhood of Gansevoort Market, which the defendant said did not suit him, they went down to a man on the dock, and bargained about some potatoes, but the defendant pretended to find the price too dear. The defendant then told the complainant that he must have some References, and took him to his home at No. 365 West Thirty-fifth street, where he introduced him to his mother, who told the complainant that her son was an industrious boy, and had formerly been in business with his father, that she would like to see him go into business with an honest man, and that she liked the com■plainant’s appearance well. At the defendant’s suggestion, the complainant then went over to Williamsburgh, drew out his $300 in cash from the bank, and, returning to the city, met the defendant in the World Building at two o’clock. He found him there in company with a man named Anhalt. The three went together to the office of a lawyer, where a copartnership agreement in the usual form was drawn up, by which the defendant and the complainant agreed to become copartners in business as produce commission merchants under the firm name of Hughes & Challacomb, and that each should contribute the sum of $300 to the business. The defendant told the complainant then that he had been buying and selling potatoes, and that he had lots of customers, and said that he must have two hundred barrels of potatoes that night, to be delivered the next morning. He said, “Let us go down to the docks, and see how we can buy some potatoes, because I must have them to-night. This was about three o’clock in the afternoon. They went down to the dock, and found the market closed. The defendant then-said: “I must have those potatoes to-night. Come along Washington street.” They went along Washington street, and into Kelly & Powers’ store, and asked for potatoes. After bargaining there for some timej they left the store, the defendant saying he would go along further, and see if he could not do better. From there the parties went to a saloon, where the defendant said he wanted to buy oranges and apples, as well as potatoes, and figured up the cost at about $475. The defendant said he had no readv money, but he produced a chéck on the West Side Bank for $325, which he placed on the desk, and said to the complainant, “You have three hundred dollars, haven’t you? ” The complainant said he had. The defendant said he thought they could not do better than buy the potatoes at Kelly’s, and that they would'go right back and buy them. Thereupon, at defendant’s request, the complainant gave him his $300 in hills, and the defendant gave the complainant $25 in small hills for “necessaries,” and they went back to Kelly & Powers’ place together. They saw the salesman, and endeavored to induce him to take a lower price, hut, not succeeding, agreed to purchase twenty-five barrels at $2 a barrel. The defendant tendered in payment one of the complainant’s $100 bills, but no change could be obtained, so it was agreed that the purchase should stand over until the morning, and the complainant deposited a $5 bill to bind the bargain. Upon leaving the place, the defendant said to complainant, “We will go down, and see if we can get some oranges.” The complainant agreed to this, whereupon the defendant said, “I guess it is too late to do any business now to-night.” The complainant then said to the defendant: “You have got two hundred and seventy-five dollars in your pocket, and ain’t going to do any business? You haven’t paid anything. I shall not trust you. You haven’t put up any money.” The defendant replied, “Why, here is my check on the West Side Bank. You must trust me, because I am trusting you. I am trusting my name to you.” The complainant answered that his name didn’t amount to that, and that he wanted his money back. The defendant told him he couldn’t get it back. The complainant said: “I don’t want to trust you at all. I don’t intend to trust you.” The defendant said he would have to trust him until the next morning, when he would meet him at Kelly & Powers’ to complete the bargain, and that meanwhile he would keep the money. ¡Naturally, the defendant failed to appear the next morning, and, after waiting for three hours, the complainant went home, where he found a telegram from the defendant, saying that he would be at the appointed place at two o’clock on the 23d. He did not appear on the 23d; and on the 24th, when the complainant was at the same place, he saw the defendant passing by. He stopped him, and said: “¡Now, look here, where is my money? You are a swindler. I found out you swindled a man eight days before this out of two hundred and fifty dollars. Give me my money back, or go in there and buy that stuff.” ' The defendant said: “I will do neither. I am going home.” _ The complainant followed him to the corner of Thirty-fifth street and ¡Ninth avenuq, where he saw a police officer, to whom he said in the defendant’s presence: “Officer, I want this man arrested. He swindled me out of two hundred and seventy-five dollars.” The defendant started away, and was going up the stoop of his house, when the complainant overtook him, and seized him by the coat tails. Thereupon the defendant’s father and two other men set upon the complainant, and the defendant escaped. When the officer arrived, there was no trace of him, and the complainant never saw him again till after his arrest upon a charge of swindling another man in a similar transaction. Upon this state of the evidence the jury very properly convicted the defendant of larceny as charged in the indictment. From the judgment thereupon entered this appeal is taken.

The principal ground of the appeal seems to be that the evidence did not justify the conviction of the defendant of larceny at common law, although he might have been convicted of obtaining money by false pretenses, which, under our statute, has been made larceny, but which requires a special count in order to sustain a conviction. It has been held, and the rule undoubtedly obtains, that if the owner of property, by trick or device, has been induced to part with the possession thereof, intending to transfer an interest therein or the title thereto, then a criminal appropriation of such property will not be a common-law larceny, but the crime of obtaining goods by false pretenses. People v. Dumar, 106 N. Y. 502; 11 St. Rep. 19. It. is also equally well settled that to constitute a common-law larceny it is not necessary that the property stolen should be taken from the possession of the owner by a trespass; but, if a person obtains possession of the property from the owner for a special purpose, by some trick, device, artifice, fraud, or false pretense, intending to appropriate it to his own use, and not to the special purpose for which he received it, he is gu-ilty of larceny, and so it has been repeatedly held, People v. Laurence, 137 N. Y. 517, 522; 51 St. Rep. 286; the distinction between the two cases being that the owner of the property stolen in the case last cited did not part with the possession of it with the intent of conferring a title to the property upon the party charged with the larceny. In the first case the intent of the owner was to clothe the party with the title; in the second, the owner only gave him possession, not intending to clothe him with the title, but to use for a specific purpose. It is urged upon the part of the defendant that the evidence established as matter of law the fact that the complainant intended to contribute the money in question as his share of the copartnership fund, and to clothe the defendant with the title thereto as his copartner. It seems to us, upon a consideration of this evidence that the jury had a right to find, and did properly find, that there was no intention upon the part of the complainant to clothe the defendant with the title to this property, but that it was given to him for the purpose of purchasing merchandise, and that it was obtained from the complainant for that purpose, and that there was no intention whatever to contribute this money as part of the copartnership capital until the defendant had paid in his promised contribution. It is clear that his check wasi not accepted as such, and that after the refusal of the defendant to purchase the merchandise which he had been talking about, he was viewed with suspicion,' and there was no intention whatever upon the part of the complainant to make an absolute contribution of this monev as co-partnership capital until the defendant complied with his part of the agreement. The money was handed over to the defendant for him to invest in merchandise. Instead of that, he ran away with it; and it would appear, under áll the rules applicable to eases of this description, that his conviction was entirely proper.

It is further urged that error was committed in admitting evidence in regard to similar frauds which had been perpetrated upon other persons whom he had succeeded in making his victims. This evidence seems to have been entirely competent upon the question of intent, which was a necessary ingredient of the crime with which he had been charged.

Various criticisms are also passed upon the charge of the learned judge who presided at the trial, most of which were not brought to the attention of the court in any respect at the trial. It is undoubtedly true that the court, in the interests of justice, even where no exception is taken, has the fight to reverse for errors in the conduct of the trial. But the court will not encourage the practice of counsel not calling the attention of the trial court to alleged errors committed during the progress of the trial when they could be corrected; and will not reverse, even if such errors appear, where they are satisfied of the guilt of the defendant. There seems to be ,no reason to doubt that the verdict of the jury in the case at bar was entirely in harmony with the interests of justice. The court was requested to charge that, if the jury found that Challacomb and the defendant were legal partners in business, even if there was an intention to steal upon the part of the defendant, it would not be a crime. The court refused to charge this proposition, and an exception was taken. It seems to be a novel proposition that, because two men are partners, neither of them has any rights of property in his individual 'possessions,—which is the logical application of the proposition requested to be charged. This illustration shows the fallacy of the request.

The judgment should be affirmed. ° ¡