author: Brady, J. Daniels, J.

text:
    Sarah Uransky, Resp’t, v. The Dry Dock, East Broadway and Battery Railroad Company, App’lt

      (Supreme Court, General Term, First Department,

      Filed March 31, 1887.)

    1. Negligence—Damages—Married women—When entitled to sue for loss of business resulting from injury.
    The plaintiff was injured while a passenger on defendant’s car, and brought this action to recover damages therefor. Held., it was only when a married woman does not carry on business on her own account that she cannot recover for them, inasmuch as her husband is then entitled to her services, and may maintain an action for the loss of them
    2 Evidence—When reason for not subpcening witness competent.
    During the cross-examination of the plaintiff she was asked whether a certain doctor who had visited her in her illness, had been subpoenaed as a witness in her behalf, and answered, “No, sir; he told me he would not go ” On the redirect she was asked whether the doctor told her why he he would not come, and what he said She was allowed to answer against the objection of defendant. Held, no error.
    8. Same—When statements as to condition competent.
    On the fourth day after the accident, the plaintiff, who had been continuously ill, was visited by an acquaintance, who was a nurse, though not a professional, and she was permitted to state that the plaintiff complained of a pain in her back and body, thus corroborating the statement of plaintiff that she had such pains. This was objected to, because too long a time had elapsed between the accident and the time it was made.. Held, competent, under Hagenbockerv. Coney Island Bailroad. Company, 99 N.. Y,, 186 The extent of which is questioned by Daniels, J.
    4. Same—Hypothetical question—What is admissible as.
    A doctor, who was called by the plaintiff, stated in answer to questions, that he had heard certain testimony had been given. Held, that it was proper to ask him to express an opinion, assuming what he had heard to be true. That it was equivalent to a hypothetical question, setting out the facts sworn to in detail.
    Appeal from a judgment entered on a verdict in favor of plaintiff.

      J. M. Scribner, for app’lt. J. S. Le Mare, for resp’t.
   Brady, J.

The plaintiff who is a married woman was injured while a passenger on the defendants road, and the jury properly instructed, found that her injuries resulted from the carelessness of the defendant’s driver, and awarded her damages. The defendants sought to relieve themselves from responsibility by proving that the accident was caused by a wagon or truck, which was backed down upon their track and under circumstance which could neither be anticipated, nor their result avoided. The defendants’ car -was as they allege arrested in its progress by other vehicles, and had stopped until an opening presenting itself and giving abundance of room to proceed, it was set in motion. This had hardly occurred however when a wagon or truck which had been an obstacle to its progress and which had moved out of the way, backed very unexpectedly on the track and caused the collision by which the plaintiff was injured. It was not questioned on the trial, that if the plaintiff’s injuries were occasioned by the carelessness of the driver of the wagon or truck, the plaintiff could not recover, but whether such were the fact or not, was a question clearly submitted to the jury on conflicting evidence, and under proper instructions on the subject The defendants complain of many errors, which were urged on the argument, as reasons why there should be a new trial, and by which they insist injustice was done them. Some of these are of sufficient import to demand particular attention. The plaintiff was permitted to show how much she could earn as a dressmaker against the defendants’ objection which was predicated on the case of Filer v. The N. Y. C. R. R. Co., 49 N. Y., 56. The plaintiff however met the de mands of that adjudication by stating that her business was that of a dressmaker, and that she had a fancy store for dry goods and fancy goods and wrappers, and she had alleged in her complaint that she was prevented from attending to her business. This was sufficient to authorize her to give evidence of and to establish her right to damages for such losses. The case referred to does not question the right of a woman to recover for damages arising from a loss of business. It is only when she does not carry on business on her own account, that she cannot recover for them, inasmuch as her husband is then entitled to her services and may maintain an action for the loss of them.

During the cross-examination of the plaintiff, she was asked whether a Dr. Messener who had visited her in her illness had been subpoenaed as a witness on her behalf and answered “ No, sir! he told me he would not go.” On .the re-direct examination she was asked whether the doctor told her why he would not come and what he said. She was allowed to answer against the objection of the defendants’ counsel. Her answer is as follows:

A. He says: “Mrs. Uransky, I have all my friends from the company, and the conductors and the drivers; if I should go against the company, then they will throw out all those people they put on the road for me, and then every one will starve if I should go for you, and I could not do that for you.” He could not go against the company.

The doctor was not shown to be in any way connected with the defendants, and what he said would not have heen competent, unless made so by the cross-examination. This seems to have been the conclusion here, for the question was asked, as we have seen, whether the doctor had been subpoened, and presumably if he had not, for the reason that he could not benefit the plaintiff and might injure her case. This was an argument that might be employed, and ingeniously, and therefore the right to show why he would not come seemed to have arisen as the result,of the cross-examination. The effect of unfortunate questions is often damaging, and this is another to be added to the long fist which already exists.

On the fourth day after the accident the plaintiff, who had been continuously ill, was visited by an acquaintance who was a nurse, though not a professional, and she was permitted to state that the plaintiff complained of a pain in her back and body, thus corroborating the statement of plaintiff that she had such pains, and this is complained of, not because it might not be proper, if the statement had been made at the time the injuries were received, but because too long á time had elapsed since that occurrence. The case of Hagenlocker v. Coney Island R. R. Co. (99 N. Y., 136) contains the latter expression on the propriety of such evidence, but does not favor the proposition that pains felt a few days after an injury, and which were intermittent, if not continuous, from the time of the injury, were not to be considered by the jury in estimating the damages to be given in compensation. It is too late now to question the right of an injured person to indemnity for suffering caused by the injury, even down to the time of the trial. Whether, however, the pains are the result of it, or feigned, as suggested in the case just cited, is for the jury to determine. The plaintiff averred that she was enciente at the time of the accident and that it caused a miscarriage. This was an important feature in the case, and attracted much attention. One of the physicians called on her behalf, said that he had heard- her testimony and that of a boy called on her behalf, and he was then asked : “ Assuming that as true, would you say that the miscarriage of which the plaintiff has testified was the result of the collision?” and he answered, “I would, decidedly.” The question was objected to as incompetent, and exception taken. It was clearly competent to show that the miscarriage asserted was the result of the injuries received, and the objection was not properly taken therefore.

The form of the question might be subject to criticism, although, it was good in substance. The proposition urged in favor of the exception is that when the facts are controverted, or are not entirely clear, a hypothetical question may be put, based upon the facts claimed to be proved, and this is founded upon the case of Guiterman v. The Liverpool S. S. Co., 83 N. Y., 365. In that case the witness was asked for an opinion under the circumstances detailed, involving complications and the consideration of testimony of witnesses, and a marine protest he had heard read, and the court said that in order properly to form an opinion, the witness should have full information as to the ascertained or supposed state of facts upon which his opinion is based, and he could not be called upon to determine the truth of the facts sworn to before giving his opinion. Here, however, the witness was asked to express an opinion, assuming what he had heard to be true, which was equivalent to a hypothetical question setting out the facts sworn to in detail. And this was justified by authority. Matteson v. N. Y. Central R. R. Co., 35 N. Y., 493. And it must be said also, that there was on the part of the plaintiff a clear statement of the facts on which the witness was asked to testify. No testimony had indeed at that time been given on behalf of the defendants. There are no other exceptions prior to the charge which require especial mention. They have been examined, but are considered to be valueless.

The requests to charge seem also to have been properly disposed of. The defendant’s counsel, zealous, watchful, untiring, planted almost with each step an objection and exception, and the record is replete with them; but it is much easier to take than to sustain them. For example, he requested the court to charge as follows :

Fifth. If the wagon with which the defendant’s car collided had, prior to the collision, passed the defendant’s track, leaving room for the defendant’s car to proceed, and the collision was caused by a backward movement on the part of the wagon, which, under the circumstances, could not be anticipated by the driver of the car, then there was no negligence on the part of the car driver, and the defendant is entitled to a verdict."

And excepted to the refusal. The learned justice had charged almost in the language of the request, but added the words “or avoided,” thus properly placing liability upon the defendants, if the driver, notwithstanding that he could not have anticipated the backward movement, if he could have avoided it.

The court was also asked to charge as follows:

Tenth. 'If the jury believe that the miscarriage, of which the plaintiff complains, was neither the necessary or natural result of any injuries sustained by the plaintiff while a passenger in the defendant’s car, but occurred from some other cause or causes, then the jury must discard fjfcn their minds all evidence respecting the miscarriage, and confine their attention to the necessary and natural results of whatever injury the plaintiff did, in fact, receive on the occasion in question.”

This was as a whole objectionable. What is meant by the necessary and natural results of whatever injury the plaintiff did in fact receive on the occasion of the accident? It is difficult to understand this. If the jurors were scientists or experts familiar with the structure of the human frame, the casualties to which it is subjected, and the natural and necessary effect, therefore, of injuries such as the plaintiff received, the question might be tolerated; but the court was dealing with less scientific questions' and called upon to pronounce intelligently a rule of damages, and had done so. The learned justice had said all that the defendants could well demand from him and what he said is an answer to the impropriety of the request made. It was as follows:

If you find there was negligence, then it is your duty to ascertain what are the damages that this plaintiff has sustained. You may take into consideration the physical injury, the anguish and bodily pain she suffered, the expense of being treated for the injury, and all damages necessarily resulting from the injury, such as you can see were tlv: necessary consequences and result of this injury. It is not a case, however, which authorizes anything hut actual damages. It is not a case which authorizes you to inflict upon the defendants what is called exemplary damages. You are under the same duty to look at the question of damages as you are to consider the question of negligence. Ho good is ever accomplished by awarding excessive damages, no good is ever accomplished by doing that which the evidence does not justify. You have a duty in that regard, and your duty is to ascertain whether this lady has suffered this injury, and if the injury was the result of negligence to ascertain what damages she has sustained as the result of this injury.
“ These parties have been careful to bring witnesses before you to testify to this subject to lay it before you. It is not a speculative inquiry, there must be no guesswork about it, it must be actual; matters upon which you can put your finger, matters of which your mind will approve after you have rendered your verdict.”

Whether the results injurious to the plaintiffs were necessary or unnecessary, whether natural or unnatural, she was entitled to indemnity. For pain and suffering or injuries to the feelings, there can be no measure of compensation, save the arbitrary judgment of a jury. It is a rule of necessity. Leeds v. Metropolitan Gas Light Co., 90 N Y., 29. No possible utility can spring from the use of complex or metaphysical requests, to charge except in cases which from their nature demand them. A plain straightforward expression of thought is a much greater factor and more likely to succeed than any other form. The courts then understand what they are called upon to do and decide the question presented with ease and certainty. In the" defense of cases kindred to this, it should be said perhaps, that-there seems to be a constant apprehension on the part of the defendant’s counsel that injustice will be done to his clients by the jury whose sympathies will mislead them, and they, therefore, hedge themselves in, and doubtless properly, by every device to which they may resort. This apprehension is not, however, warranted, for juries are rarely carried away by undue influence in civil cases, and are generally right in their conclusions. The judgment for these reasons should be affirmed with costs.

Daniels, J.

During the trial of this action, which was for a personal injury, the witness, Mary A. Fielder, was allowed to relate a conversation had with the plaintiff on the 26th of April, 1885, four days after the occurrence of the accident. By the evidence proposed to be given it was intended to prove complaints which the plaintiff made to this witness, who was not a physician, and which were not made to secure medical or surgical assistance concerning her injury and sufferings. This was objected to as incompetent. The objection was overruled and the defendant’s counsel excepted". And under this ruling the witness testified in answer to questions propounded to her as follows :

Q, Did she complain to you at that time of any pain?
A. Yes, sir.
Q. State what she said? • .
A. She said that she was in pain — was hurt and cut. She said she had a terrible pain on the right side of the lower part of her stomach.
Q. State what she said about pains?
A In her back she was in terrible pain; and her head.

Under the rule of evidence, as it was formerly held and applied,- this testimony could have been legally received upon the trial, for this rule permitted complaints of pain and suffering to be proved in behalf of the plaintiff’s case, although they may have been made in the course of conversations with a person not applied to for either medical or surgical assistance. 1 Ghreenl. on Ev. (7th ed.), § 102; Cadwell v. Murphy, 1 Kern., 416; Matteson v. New York Central, etc, 35 N. Y., 487; Insurance Co. v. Mosley, 8 Wall., 397.

But in the case of Reed v. New York Central, etc. (45 N. Y., 574), it was held by Judge Allen, who delivered the opinion of the court,. that statements and declarations of this description were no longer entitled to be received in evidence, when not made to a physician or surgeon, because of the competency of the party injured to take the stand and testify as a witness concerning the facts. But this opinion, as broadly as it was written, was concurred in only by Judges Grover and Raparlo. Judge Folger agreed to the result, and the two other judges in the court dissented. While this decision, therefore, indicates a strong disposition to abrogate this preceding rule of evidence, it is not entitled to be attended with this effect, for a majority of the court were unwilling to consent to this result. The case of Hagenlocher v. Coney Island, etc., R. R. Co. (99 N. Y., 136) does not include, or consider, this precise point, and for that reason it is not an authority on this subject. Under the rules stated and followed in Waldde v. New York Central, etc. (95 N. Y., 274), this evidence was no part of the res gestee, and it was not entitled to be received under that authority, or the case of Mitchell v. New York Central (25 Hun, 561).

The safe course in view, of what was said in the case of Reed v. New York Central, would be to reject all such evidence, but as the preceding rule relating to it cannot yet be said to have been overthrown by the opinion there announced, and concurred in by two of the other judges of the court, and it has the support of other cases decided in the same court since the provision went into effect allowing the party to be sworn as a witness in his or her own behalf, it should not now be held to have been error for the court to receive this testimony on this occasion. This is all that it is considered necessary to add to the opinion of Mr. Justice Brady, and the judgment in the action, as well as the order denying a new trial, should be affirmed.


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    Bezateel H. Dupignac, Resp’t, v. George W. Van Buskirk, as Ex’r, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1887.)

    1. Motions and orders in actions triable in first district cannot . BE MADE ELSEWHERE—CODE ClV. PRO., § 769.
    By Code Civil Procedure, section 769, the making of a motion in an action triable in the first district, in any other district is prohibited.
    2. Same—Violation of rule.
    There being two actions pending, one in the first district and the other in Kings county: Held, that an order made in Kings county consolidating the action was contrary to the prohibition of the statute.
    Appeal from injunction order made and entered on the 10th of February 1887.

      Anthony R. Dyett, of counsel for def’t and app’lt; Louis C. Wachner, of counsel, for pl’ff and resp’t.
   Van Brunt, P. J.

This action was pending in the county of New York. Another action was pending between this plaintiff and these defendants and others in the county of Kings. A motion was made in the action in the county of Kings to cansolidate the two actions and to direct that the trial should be had in the county of Kings, which motion was heard in the county of Kings and granted. At that time a motion for an injunction was pending in this court which was heard notwithstanding the order which had been made in the action in Brooklyn, and from the order then made, this appeal is taken. As has been said by Mr. Justice Lawrence in his opinion in respect to the validity of the order made in Kings county removing this case to that county, and consolidating it with the action pending in Kings, section 769 of the Code prohibits the making of' any motion in an action triable in the first district in any other district. Therefore the learned justice in the motion in Kings county, was entirely without jurisidiction as far as this section is concerned, and the order made therein was void. If it claimed that the court had jurisdiction to-hear the motion in the action pending in Kings county, it is clear that in that action the court had no power to make an order affecting the rights of the parties in the action pending in this county. Orders can only be made which affect the substantial rights of a party to an action, in the action itself, and, therefore, if these actions were to be consolidated, the motions must be made in both actions.

It is urged that if this rule applies then merely because the venue is laid in different counties, no motion for a consolidation can possibly be made although it may be entirely proper that a consolidation of the action should take place. It is sufficient to say in answer to this suggestion that if it was proper that the actions should be consolidated, it would certainly be proper that they should be tried in the same county; and upon a motion having been made to change the venue, if it was proper that the actions should be consolidated, the venue of one of them should be changed to the county in which the other was pending, in order that such motion for consolidation might be heard. Certainly as far as the action pending in the county of New York was concerned, no motion could be heard affecting such action outside of the county unless the express prohibition of the Code is violated.

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

Brady and Daniels, JJ., concur.


author: Brady, J.

text:
    Louise S. Cowen, Resp’t, v. Arthur C. Ferguson et al., and D. Rogers Noble, Appl’ts.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1887.)

    1. Practice—Order to examine a witness before trial—On whom served—Code Civ. Pro., §§ 871, 875.
    Where an order requiring a witness to appear under the provisions of Code Civil Procedure, § 871, is obtained, a copy of the order, and affidavit upon which it is granted, must be served upon the attorney of the opposite party. If this is not done, the witness is not bound to appear and cannot be examined. He cannot be punished for contempt for disobeying the order,
    2. Same—How to correct an order—Motion for re-settlement.
    Where the order as entered differs from that proposed, application should be made to the judge who decided the motion for a re-settlement of the order, and a re-settlement only, and not to have it set aside on the ground of irregularity.
    Appeal from order adjudging D. Rogers Noble, a witness in contempt, and from an order dismissing motion made to set aside the order adjudging the witness in contempt.

      Edward F. Bullard, for app’lts; Sidney J. Cowen, for resp’t.
   Brady, J.

An application was made for an order mider section 871, of the Code requiring D. Rogers Noble, as a witness, after issue joined, and before trial in this case to appear before a referee, and it was granted by Judge Bocices. The time appointed for his examination being the 23d of September, 1886, at 2 p.m. A copy of the order was duly served upon the witness, but it was not served upon the attorney for the defendants. The witness did not appear before the referee, and an order was obtained requiring him to show cause before one of the justices of this court, why he should not be punished for contempt. On the return day of that order Mr. Bullard appeared and presented an affidavit in which it was stated that no copy of the order had been served upon him, and that for that reason, he had advised the witness that the plaintiff had no right to examine him, and that he was not bound to submit to an examination under the order served upon him. It is conceded that no copy of the order was served by the plaintiff’s attorney upon Mr. Bullard, who was the defendant’s attorney. The motion to punish was granted and an order entered requiring the witness to pay the plaintiff’s attorney within four days after the personal service of the order upon him, the sum of $18, as, and for the motion costs, ■ referee’s fees and disbursements necessarily incurred, which sum was imposed upon him as a fine. The order provided, also, that upon his failure to make the payment at the time and manner mentioned, application might be made to the court for a commitment This order is appealed from.

It is only necessary to say in regard to it that when an order requiring a witness to appear under the provisions of the section mentioned is obtained, it is required by section 875 not only that á copy of the order shall be served upon the attorney for the opposite party, but also- the affidavit upon which it was granted in like manner as a paper in the action; and by section 876 it is declared that upon proof by affidavit that service of a copy of the order and affidavit has been duly made as directed, in the order the judge Or referee must proceed to take the deposition of the witness at the time and place specified in the order. The order for the examination of the witness did not require that service should be made upon any person other than the witness himself, and perhaps that was a compliance with section 876. But taken in connection with section 875, it is quite clear that service upon the defendants’ attorney was an absolute prerequisite to the right to examine the witness; and that being so, the advice which was given to the witness by Mr. Bullard was quite justifiable. For these reasons we think that the order adjudging the party to be in contempt was erroneously made. It may be said in addition that there was clearly no intention to defeat in any way the administration of justice by the witness himself, for the reason that his absence from the place where he would have been, if he had obeyed the order of the court, was in consequence of the advice of the defendants’ attorney; advice which, as already stated, was quite justifiable. If the course adopted by the plaintiff’s attorney should be sanctioned, the witness might be examined, notwithstanding that the defendants had appeared, during their absence and statements extracted which, without explanation such as would result from a cross-examination, be secured to the prejudice of the parties if not to the prejudice of the witness himself. Such a ' practice is not contemplated, and is expressly prohibited by the requirement that the order and affidavits shall be served upon the adverse party.

In regard to the second order the disposition made of. that was correct.

The motion seems to have been predicated of a difference between the order as proposed and the order as entered, and the application should have been made to the justice who decided the motion for a re-settlement of the order, and a re-settlement only, and not to have it set aside on the ground of irregularity. So that it would seem that not only the plaintiff’s, but also the defendants’ attorney has erred in his practice in this case.

The result is that the order of Andrews, J., should be reversed, and the order of Van Brunt, J., affirmed, without costs to either party.

Daniels, J., concurs.


author: Bartlett, J.

text:
    Nathaniel Hooper et al., Resp’t,s v. C. McCulloch Beecher et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1887.)

    1. Re-argument—Ground for granting motion.
    An appeal was taken from a judgment to the general term, and the judgment reversed, upon the mistaken supposition that an objection had been interposed to the reception of evidence which in that case should have been excluded. Meld, that this mistake furnished grounds for a re-argument.
    3. Judgment—Rendered according to proofs—In absence of objection TO EVIDENCE WITHOUT THE PLEADINGS.
    Where facts proved beyond the allegations of the complaint, make out a good cause of action in favor of a plaintiff, and the evidence is received without objection and is admissible only with reference to that particular cause of action, the case should be disposed on the appeal, as if the pleadings had been so amended as to properly allow such proof.
    Béargument of appeal from judgment declaring assignment void.

      C. E. Tracy, for app’lts; Franklin Bien, for resp’ts.
   Bartlett, J.

This action was brought to invalidate an assignment made by the firm of Charles McCulloch Beecher & Co.

The question principally litigated upon the trial was whether all the co-partners assented to the assignment. The trial court held that they did not; and on appeal from the judgment in favor of the plaintiffs, the general term of this department, in December, 1886, delivered an opinion in favor of reversal. That opinion was evidently based upon a misapprehension of the facts presented by the record. The form of the pleadings was such as not to leave the plaintiffs at liberty to introduce evidence to disprove the due execution of the assignment if objection had been made to such proof. The former opinion assumed that objection was duly made by the defendants to the introduction of such evidence, and concluded that its admission was an error for which the judgment ought to be reversed. It turns out that no objection was in fact made, but, on the contrary, all the evidence tending to show that the assignment was not executed with the assent or ratification of all the members of the firm, came into the case without any intimation from anybody that it was improper. For this reason the present reargument of the appeal was directed.

No doubt there is a variance between the p.eadings and the proof in regard to the assent of the several parties in whose firm name the assignment was executed, and if objection had been made to the proof on the ground that it was inconsistent with the pleadings, and exception had been taken to its admission, a reversal of the judgment would be necessary. Where, however, the facts proved make out a good cause of action in favor of a plaintiff, and the evidence comes in without objection, and is admissible only with reference to that particular cause of action, the case should be disposed of on the appeal as if the pleadings had been properly. amended. Tinsdale v. Morgan, 7 Hun, 583.

The respondent urges that this testimony in. respect to non-assent was technically admissible upon the issue of fraud, so that no objection could properly have been interposed; but in this view we think his learned counsel is mistaken. The only tendency of the evidence was to establish the fact that no assignment at all had been made, and it is impossible to see how proof of this fact could tend ■to show the making of an assignment, the intent of which was to hinder and defraud creditors.

• The proof fully sustains the finding of the trial court that a foreign partner and one of the resident partners neither assented to the assignment nor ratified its execution; and as the defendants made no objection at the time to trying this question, they must abide by the result.

The judgment should therefore be affirmed, with costs.

Van Brunt, J., concurs.

Landon, J.—I concur on the authority of Tindale v. Morgan cited in Judge Bartlett’s opinion.


text:
    National Park Bank, App’lt, v. The Seaboard Bank, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1887.)

    1. Bills—Notes and checks—Raised check—When collecting agent LIABLE.
    The Eldred Bank received a certain check for collection in the usual course of its business, and forwarded the same to the defendants, its correspondent, for collection, without any special agreement in reference thereto. The established course of business 1 etween the defendant and said bank was that the defendant did not become responsible for any draft or check forwarded to it for collection by said bank, but in case of nonpayment, if the defendant had made any credits or remittances in anticipation of the collection of the same, or on account thereof, it was entitled to be reimbursed. The check in question had been raised when received by the Eldred Bank, and the raised amount was paid to the defendant by the plaintiff. At the time of payment of said check the change in its amount was unknown to the drawee and all three banks. About a month after its payment the plaintiffs were informed, for the first time, of the raising of the check. Meanwhile, defendant had paid the money received from plaintiff on this check, and all other money it then had to the Eldred Bank, though it had during all the time funds belonging to said bank, received later. Reid, that the defendant acquired no title or property in the check in question, or in the proceeds thereof, after its collection, but that the same was the property of the Eldred Bank.
    2. Same—Principal and aqbnt—When the relation of agent exists.
    The mere giving of credit in an account, or even remitting in anticipation of collection, does not change the relations between the party remitting paper and the party receiving paper for collection; the latter is simply agent.
    3. Same—When agent not liable for money mispaid to him.
    If money be mispaid to an agent expressly for the use of his principal, and the agent has paid it over, he is not liable in an action by the person who mispaid it, but the remedy is against the principal.
    4. Accounts—Order in which payments must be applied.
    In cases of running accounts, where debts and credits are constantly accruing, payments must be applied to extinguish the debts according to the priority of time.
    Appeal from a judgment dismissing the complaint.
    In July 1885, the Wallingford Bank which then kept an account with the plaintiff drew on the plaintiff a draft or check for the sum of eight dollars in the usual form to the order of one Frank Saxton and delivered the same to him. On the 15th of July 1885, Saxton requested the Eldred Bank to collect the said draft or check, and thereupon endorsed the same for collection and delivered the same to the Eldred Bank. The amount of the check at the time of such delivery had been raised from $8.00 to $1,800. On the said 15th of July the Eldred Bank endorsed the check, below the endorsement of Saxton as follows: “Pay S. Q-. Nelson, cashier or order for collection, for account of the Eldred Bank, Eldred, Pa., P. O. Heasley, cashier; and forwarded the same to the defendant who was then the New York correspondent of the Eldred Bank. The defendant received it on the morning of July 16, 1885, and credited the same in their account current with the Eldred Bank on that day. On the 17th of July the draft was presented to the plaintiff by the defendant through the New York clearing house and paid on that day as a draft of $1,800 and said draft was then and there delivered and surrendered by the defendant to the plaintiff. On the day of its receipt, July 16, 1885, the defendant notified the Eldred Bank by postal card of its receipt and of its credit by the defendant to the Eldred Bank which postal card was received by the latter bank on July 17, 1885. The Eldred Bank in order to make sure that the draft was all right intentionally refrained from paying over the proceeds to Saxton until the 25th of July 1885. Not having heard that there was any-, thing wrong about the draft, it being the uniform custom of the defendant to notify the Eldred Bank of its failure to collect any of its checks or drafts or of anything wrong in regard to them, it paid the proceeds of the draft to Saxton. The Eldred Bank received the check for collection in the usual course of its business and forwarded the same to the defendants its correspondent for collection without any special agreement in reference thereto. The established course of business between the defendant and the Eldred Bank was that the defendant did not become responsible for the draft or check or for any draft or check forwarded to it for collection by the Eldred Bank, but in case of nonpayment, if the defendant had made any credits, payments or remittances in anticipation of the collection of the same or on account thereof, it was entitled to be reimbursed. At the time of the payment of the draft the change in its amount was unknown to the drawers and to said three banks and all said three banks acted in good faith and in ignorance of the raising of the check. Subsequent to the sixteenth of July the date of the receipt of the draft by the defendant and prior to the fifteenth of August, the date of the discovery that the draft was altered, payments were made by the defendant to the Eldred Bank largely exceeding in amount the balance in hand on the sixteenth of July, including the draft of $1,800. But during all this time, a balance remained in the hands of the defendants of more than $1,800 belonging to the Eldred Bank. On the fifteenth of August, the plaintiffs were for the first time informed of the raising of the draft, and on the same day gave notice to the defendant, and requested the defendant to repay to it, the plaintiff, the difference in the sum of $8.00 and the sum of $1,800 which it had paid upon the draft. The defendant refused to comply with this demand and the plaintiff brought this action to recover the said amount. The case was tried before the court without a jury, and upon the court finding the foregoing facts, the complaint was dismissed, and from the judgment thereupon entered this appeal is taken. ■

      Francis C. Barlow, of counsel, for app’lt; Alfred Taylor, of counsel, for resp’t.
   Van Brunt, P. J.

The ground upon which the learned justice founded his judgment was that the plaintiffs could not recover from the defendants, because the latter held the draft merely for collection and as agents of the Eldred Bank, and had paid over the proceeds to the Eldred Bank, before they, the defendants, had received any notice of the alteration. There is no claim that there was any neglect upon the part of either the plaintiffs or the defendants in. relation to the payment and collection of this draft.

The two questions then which are presented upon this appeal are:

First, Whether the learned court was correct in holding, that the defendants were merely the agents of the Eldred Bank; and,

Second, Whether they had paid over to the Eldred Bank the proceeds collected upon the draft, and were thus absolved from liability.

There would seem to be no question as to the first proposition were it not for the fact that the defendants upon the receipt of the draft before its collection, had credited the same to the Eldred Bank in the account current between the two banks. If the defendants had kept this draft collected it, and remitted the identical proceeds to the Eldred Bank, then it is admitted in view of the nature of the endorsement that the defendants would be simply the agents for collection of the Eldred Bank. The case of Dickerson v. Wason (47 N. Y., 439), seems to set at rest the proposition that the mere giving of credit in account, or even remitting in anticipation of collection changes the relations between the party remitting paper and the party receiving paper for collection. In that case paper had been deposited by the plaintiff with the firm of Van Sann & Son in New York city for collection. Van Sann & Son sent the paper in a letter to the defendants, stating: “ Enclosed we hand you for collection * * * and when paid remit proceeds in draft on New York, etc. Protest if not paid.”

The note in question was endorsed by Van Sann & Son as follows: Pay Wason, Everett & Co., or order for collection.” It was received by the defendants July twenty-fourth and collected at maturity August twenty-seventh, on which day defendants heard that Van Sann & Son had stopped payment. In anticipation of the collection of the note in question, the defendants had remitted various sums of money to Van Sann & Son prior to their failure. These remittances were made as a general remittance on account current. The plaintiffs thereupon commenced an action to recover from Wason, Everett & Co. the amount collected upon this note. It was held that the plaintiffs never had in fact parted with the ownership of the note to Van Sann & Son, and that as the defendants had not remitted the money after the collection of the note, the plaintiff’s were ■entitled to recover the same as their property. Applying the case cited to the case at bar, it would, therefore, appear that the defendant acquired no title or property in the check or draft in question or in the proceeds of such draft after its collection, but that the same was the property of the Eldred Bank and could have been recovered from the Seaboard Bank had the same become insolvent immediately after its collection.

, The next question to be considered is whether under these circumstances the payment over of the money to the Eldred Bank discharged the defendants from all claim or liability to the plaintiffs. This qestion is not entirely free from doubt. The cases of Butter v. Harrison (1 Cowp., 566), Mowatt v. McLelan (1 Wend., 174), Lafarge v. Kneeland (7 Cow., 460), and Herrick v. Gallagher (60 Barb., 566), seem to sustain the principle that if money be mispaid to an agent expressly for the use of his principal, and the agent has paid it over, he is not hable in an action by the person who mispaid it, but the remedy is against the principal. And this rule seems to 'be recognized in the case of the National Bank of Commerce v. The National Mechanics Banking Association (55 N. Y., 216). There are various cases, however, beginning with the Bank of Commerce v. The Union Bank (3 Comst., 236), where recoveries have been had for money paid on raised commercial paper through mistake, some of which seemed to militate against this rule, although the question is not discussed, nor are the facts sufficiently distinctly stated, in order to form an intelligent opinion. Marine National Bank v. National City Bank, 59 N. Y., 67; White v. Continental National Bank, 64 N. Y., 320, and cases there cited. And, therefore, the distinct expression of opinion in the case of the National Bank of Commerce v. The National Mechanics Banking Association, (supra), should govern.

It seems clear that it must be held that the Seaboard Bank has paid over the proceeds of this draft to the Eldred Bank. It is true that they have not paid the distinct money received in payment of the check, but they have credited it in account and have remitted very much more than sufficient to exhaust this amount and any credit which might have existed at the time the same was made, long before the discovery of the raising of the amount of the check. Applying the well settled rule that in cases of running accounts where debts and credits are constantly occurring, payments must be applied to extinguish the debts according to the priority of time, the amount received upon the check in question had been paid over by the defendants to the Eldred Bank. The rule above stated is sustained by the cases of Sheppard v. Steele (43 N. Y., 52), Waldon v. Davidson (11 Wend., 65), Allen v. Culver (3 Denio, 293), United States v. Kirkpatrick (9 Wheat., 720), Bixby v. Drexel (56 How., 478), Clayton's case (1 Mer., 572), in re Hallett (13 L. R. Ch. D., 696).

It is no answer to this rule that its application turns the plaintiffs out of court and puts them to the trouble, expense and delay of a suit against the Eldred Bank, because the plaintiffs in this action are entitled to no greater consideration at the hands of the court than is the Seaboard Bank, neither having been guilty of negligence and both having acted in the utmost good faith. The rules of law in reference to the application of payments should not be warped unless some great injustice is done thereby, which does not appear to be the effect of the application of the rule to the case at bar.

Under the circumstances, therefore, it does not appear ■ that any error was committed in the progress of the trial and the judgment appealed from should be affirmed with costs.

Brady and Daniels, JJ., concur.


author: Macomber, J.

text:
    Harlin James Woodward, by Frank E. Smith, his Guardian, App’lt, v. Julia L. James, individually and as Ex’x, et al. Resp’ts and App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1887.)
    1. Trusts—Ho particular words necessary to create.
    The will of a testator, among other provisions, contained the following, viz.: I give my "x" wife * for her sole use * during her life, etc., first, one-half the income of all his property; second, the use, rental and occupation of residences therein designated. By a subsequent provision, the testator gave the remainder of the income from his property during the life of his wife, after certain payments to his legal heirs, and also gave to his legal heirs the reversion of his property after his wife’s death, directing that any one of them making any attempt to interfere with the enjoyment and management of his estate by his wife should be excluded from sharing in the same. Held, that no particular words were necessary to create a trust by will, so long'as the provisions thereof were of such a character as that, in order to carry them out, the ordinary powers and duties within the Revised Statutes were required.
    ¡3. Same—What will create.

      Held, that the will by necessary implication, created a trust in the wife of the testator.
    3. Will—Interpretation of—Construction.

      Held, that the collateral relatives were the persons referred to in the will as legal heirs, and took not individually, but in families, or per stirpes, because the testator had not named any of his collateral relatives anywhere in the will, and referred to them in this position in the will in the same way that they would be considered when applying to their rights the statute of descent of this state.
    4. Same—Who not entitled to partition.

      Held, that a grand nephew of the testator was not entitled to a partition of the real estate, but was entitled to a share therein as remainder man.
    5. Same—Who not entitled to distributive partition.

      Held, that he was not entitled to a share in the personal property, because, though a legal heir, he "was not of the next of kin within the statute of distributions, which prohibits representations among collaterals further removed than the children of brothers and sisters of the decedent.
    6. Same—Prohibition from -interference with enjoyment of estate —What is not within.

      He d. that the plaintiff had not by bringing this action, debarred himself from sharing in the property under the prohibitory clause of the will.

      Appeal by the plaintiff Harlin James Woodward, and by the defendants Henry A. James, Honorah 0. James,
    Howard ,L. James, Horace E. James, Julia W. Phillips • and Virginia P. Kean, from that portion of the judgment of the special term which decided,

      First. That the defendant Julia C. James is entitled to one-half the gross income of the estate.

      Second. And that the devisees take per stirpes and not per capita, and,

      Third. That the will creates a valid trust in the executrix.
    The testator/left surviving him only his widow, Julia L. James, one brother and two sisters, five nephews, four nieces and the plaintiff herein, who is his grandnephew.
    He left neither father, mother nor descendants.
    The material parts of the will are as follows: “I give and bequeath to my beloved wife, Julia, for her sole use, enjoyment and benefit during her life, without restraint, deduction or interference in any manner whatever, as follows:
    • First. One behalf of the income of all my prqperty of every kind of which I may die possessed.

      “Second. The use, enjoyment, rental and occupation of my two residences, one known as Craig Side, in Cold Spring and Phillipstown, New York, and the other known as No. 400 Fifth avenue, New York city.
    “ Third. I give, devise and bequeath absolutely to my said wife all the household furniture, pictures, plate, books, ornaments, horses, carriages, farm implements and property of every description in or upon or pertaining in any manner to the two houses and residences aforesaid. The said devises and bequests to my said wife to be in lieu of dower and right of dower.
    “ I give, devise and bequeath to my legal heirs the remainder of the income from my property during the life of my wife, after the payment and discharge of all taxes and assessments and charges and interest and obligations against my said estate, except as hereinafter provided, in case of interference. I give, devise and bequeath to my legal heirs, except as herein provided otherwise, the reversion and ownership of all my estate and property after the death of my wife, with the reservation, exception and direction that in the event of any of my legal heirs making any attempt, directly or indirectly, in any manner or form to interfere with, or restrain in any manner, my beloved wife from the full enjoyment, use, management, direction and disposition of the property and income of my estate as herein devised, then and and in that event, such one of my legal heirs as shall do or perform or aid or abet the performance of such an act, or cause the same to be done, shall be forever debarred from any part, parcel, interest or ownership or inheritance to any of my property, and be excluded from sharing the same, and the share that would otherwise have gone to him or her shall be divided among the remaining heirs according to law.
    “ I authorize and direct my executrix, in her discretion, to sell and convey such portion of my property as may be requisite or necessary to pay and discharge my just debts and obligations. I constitute and appoint _my_ wife, Julia L. James, my sole executrix, and direct that no bond, obligation or surety be required from her. j

      Frank E. Smith, guardian ad litem, for the pl’ff; Robert Mazet, Charles S. Clark and William C. Holbrook, for sundry defendants; Franklin Bartlett, for the defendant Julia L. James.
   Macomber, J.

The principal question is whether or not a trust was created by the will of Frederick P. James. It is observable that no distinct words imposing a trust in the language of the Revised Statutes are used, yet we think the learned judge at the special term was correct in holding that the intention of the testator, as derived from the whole will, and the situation of his property and the relation of his heirs-at-law and next of kin to him, was to create a trust by necessary implication. It is apparent that the prime motive of the testator was to make ample provision for the support and maintainance of his wife.

She was the immediate subject of his bounty. He had no father or mother living and no descendants. His collateral relatives are not shown to have had any particular claim upon his bounty which was not in his mind subordinated to the interest and protection of his wife. He gave one-half of the whole income of his property to her, without restraint, deduction or interference in any manner whatever. He gave her the use and occupation of a city residence and of a country residence, together with the household furniture, plate, books and ornaments, horses and carriages and implements and property of every discription pertaining to such residences which were necessary to a proper maintenance thereof, and, in fine, the testator appears to have had the purpose clearly defined in his mind, as disclosed by the will, to sustain the property, both real and personal, in the hands and under the control and management of his wife, and that there should not be any division thereof among his next of kin, or heirs-at-law until her death. She was authorized to receive the rents, issues and profits of the estate, and, as has already been pointed out, was personally entitled to retain for her own use and purposes, one-half of the gross income. Under these circumstances, there was imparted into the will, by necesary implication, a duty upon the wife as executrix or trustee, to hold the property, collect the income thereof and properly to distribute, after paying all expenses, the other portion, in accordance with the third clause of the will.

It cannot now be successfully contended in this state, that particular words are necessary to create a trust by will, so long as the provisions thereof are of such a character as that in order to carry them out, the ordinary powers and duties of a trustee, within the Revised Statutes, are required. Brewster v. Striker, 2 N. Y., 19; Vernon v. Vernon, 53 id., 351; Morse v. Morse, 85 id., 60.

Another question raised by the appellants relates to the term legal heirs ” as used in the will, and whether the persons answering to that description take under the will per stirpes or per capita. The special term has, we think properly construed the will to mean that the collateral relatives should take, not individually, but in families or per stirpes. This result is mainly arrived at in this particular instance, for the reason that the testator has not named any of his collateral relatives anywhere in the will, and refers to them in this position of the will in the same way that they would be considered when applying to their right the statute of descents of this state. See, Ferrer v. Pyne, 81 N. Y., 281; Kelly v. Vigas, 20 Reporter, 103.

The trial judge, while denying to the plaintiff his prayer for partition of the real estate, gives certain relief to him by way of a judicial construction of the will, and holds that he, with other parties to the suit, is entitled to share in the property, both real and personal, as a remainderman. So far as the decision relates to the real estate, it is correct, but the plaintiff is not entitled to share in any of the personal property. Though a legal heir, he is not the next of kin, within the statute of distributions, which prohibits representation among collaterals, after brothers and sisters children.

The plaintiff, being a grandnephew, is not entitled to share in the personal property, unless the expression “ legal heirs ” is to be construed broadly enough to include next of kin. A careful reading of the will leads irresistibly to the conclusion that the testator intended, as has been intimated above, that after the full enjoyment by his wife of his estate, at her death the property should go to his collateral relatives as in case of intestacy. The expression in this clause of the will means, that the property after the death of his wife, should be distributed according to law. It would do violence to the whole will and to the situation of the beneficiaries in their relationship to the testator, to say that he intended that the plaintiff should have greater rights or interest in his property than he would have had, had there been no will. It is noticeable that the expression is not “ heirs” alone, but “legal heirs,” thus imparting into it a distinct intimation that the property should be distributed and descend according to law.

The only remaining question is, whether or not the plaintiff, by bringing this action,, has debarred himself from sharing in the property under the prohibitory clauses of the will. Although this position is taken in the printed briefs, yet we do not understand counsel to have insisted, upon the oral argument, that a declaration of this court to that effect should be made. Indeed, were the position insisted upon, we should feel constrained, under the circumstances, to overrule it, not only upon the ground stated by the learned trial judge, namely, that the plaintiff is an infant, but upon the further ground that the action itself was not, in its scope and purpose, intended to defeat the known and established intention of the testator, but to obtain an adjudication as to what that intention was. This is not an interference with the legal rights of the executor and trustee.

Had the action been based upon an allegation of undue influence in procuring the will or of the mental incapacity in the testator, or of duress, and the plaintiff had been defeated upon the issues, a different question would probably arise. Indeed, the fact that we feel constrained to differ from the trial judge in relation to the extent of the interest of the infant in the estate, is sufficient to show that the action was not brought without a semblance of a just claim.

It follows that the judgment should be affirmed, except as modified in the particular above mentioned, the costs to be paid out of the estate.

van Brunt, J, concurs.


author: Per Curiam.

text:
    People ex rel. Walter Delmar App’lt, v. The St. Louis and San Francisco Railroad Company, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed April 25, 1887.)

    1. Foreign corporations—Duty of transfer agent to exhibit transfer book.
    The transfer agent of any corporation existing beyond the jurisdiction of this state is required at all reasonable times, during the usual business hours, to exhibit to any stockholder, when required, the transfer book of such corporation, and also a list of the stockholders thereof, if in his power to do so.
    2. Mandamus—Reference may be ordered before granting—Code Civ. Pro. , § 2070.
    Before proceeding to decide a motion for a mandamus, made under Code Civil Procedure, section 2070, the court has the right to order a reference to take proofs on matters upon which fuller information is desired.

      John E. Burrill, of counsel, for resp’t; John JR. Dos Passos, of counsel, for relators.
   Per Curiam.

The transfer agent of any corporation existing beyond the jurisdiction of this state is required at all reasonable times during the usual business hours to exhibit to any stockholder, when required, the transfer-book of such corporation, and also a list of the stockholders thereof if in his power to do so.

It does not appear herein that the transfer agent of the corporation proceeded against has not the power to exhibit the book and list mentioned.

In a proceeding of this character, which is expressly provided for by the Code, § 2070, we have no doubt of the right of the court, without regard to the provisions of the Code, to order a reference to take proofs on matters upon which it desired fuller information before proceeding. See Dwight v. St. John, 25 N. Y., 203.

This citation is made only because it recognizes a power which has never been challenged in any case to which our attention has been called herein or heretofore.

The object of the reference was to make more certain and reliable the unsatisfactory" denials contained in the answering affidavits, and thus to secure such information as would enable the court better to understand and dispose of the motion.

It may be that upon the coming in of the referee’s report of the evidence taken before him that there will be no dispute as to any material question of fact, in which case the learned judge presiding might consider himself bound to grant the' writ, or to deny it, if any material fact was put in issue.

Motion for stay denied, with ten dollars costs to abide event of motion.


author: Daniels, J.— Bartlett, J.

text:
    James Ahern, Adm’r, etc., App’lt, v. Rosalie M. Steele et al., as Ex’s of Thomas McCarty, dec’d, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1887.)

    Negligence — Evidence — Wharfs and piers — Condition of —What COMPETENT TO SHOW.
    The plaintiff’s intestate fell through a decayed part of the surface of a certain pier in New York, while rightfully thereon, and was drowned. The defendants had leased that part of said pier to a third party before the accident, and said third party was in possession thereof at the time. This action was brought against the defendants on the ground that the pier was in an unsafe condition when they leased it, and that, therefore, they were guilty of negligence and liable. To show the condition of the pier at the time it was leased, the plaintiff offered to show by a competent person, who examined it after the accident, what the thickness of the plank thereon was, their condition at the time he made the examination, and how long it would take plank of the description and material then on said pier to become rotten or dilapidated. Held, it was error to exclude the evidence.
    Appeal from judgment recovered on the dismissal of the complaint at the close of plaintiff’s case at the circuit.

      Edward McCarthy, for app’lt; J. A. Whiting and Jackson A. Ingraham, for resp’ts.
   Daniels, J.—

The object of the action was the recovery of damages for the decease of the son of the plaintiff, in October, 1882. The plaintiff was passing from a steamer on pier 54, East river, and on his way was met by the intestate, who was then a bright, promising boy of about six years old. While they were passing along the pier to the street the boy disappeared through a decayed part of the surface of the wharf and was drowned, and it is as his administrator that the plaintiff has brought this action against the defendants as the owners of the easterly part of the pier, which included the spot where the deceased passed through. It was charged as a ground of the action that the pier was in an unsafe condition at the time they leased it, as they did, on or about the 1st of May, 1880, to a tenant who continued in its possession up to the time of the accident, and that they were negligent in leasing the pier in its decayed condition, and as the result of such negligence this accident was produced. There was no direct evidence on the trial that the easterly half of the pier, was as a matter of fact, in an unsafe or decayed condition at the time when the leasing took place. But the plaintiff proposed to supply proof of that fact by questions put to his witnesses on the trial, which were not permitted to be answered. The Surveyor, who, in April, after the accident, made an examination and survey of the place, was asked whether he observed that any of the planks were rotten or dilapidated. This was objected to and the objection was sustained, to which an exception was taken by the counsel for the plaintiff. He was then asked, “What were the dimensions, generally, of the plank upon this pier ? ” and the answer was in like manner excluded and an exception taken. Then the witness was asked, “Do you know about what length of time it would take planks of three or four inches in thickness, exposed upon that pier, to become rotten or dilapidated ? ” This was also objected to, the objection sustained and an exception taken.

Another witness sworn on behalf of the plaintiff who appears to have been acquainted with the pier in October, 1882, stated that it was generally in bad condition. He further answered that at the outer end of the pier the timbers and planks were rotten. The planking of the pier was shown by the same witness to have been spruce about four inches in thickness. The witness was then asked: ‘ ‘ About how long if you know would four inch spruce plank, be there upon that pier before they would become rotten?” This was in like manner objected to, the objection sustained and an exception taken to the exclusion of the answer. He was further asked “How long had this pier been a bad one?” And this question was disposed of in the same manner as the others had been, by which it was proposed to show the probable length of time that the plank would have continued in exposure and use before it would have reached a rotten existence. If these questions had been allowed to be answered it is quite probable that the answers would have supplied evidence upon which the jury might have found that the pier was in a decayed condition at and before the time when it was leased to the tenant. There might have been grounds supplied in that manner, from which it could reasonably have been argued, that there was negligence on the part of the defendants in leasing and placing this property in the possession of the tenants in a, dilapidated and unsafe condition.

The questions which were put to the witnesses were not objected to because of their supposed incompetency to-answer them. If that had been the form of the objection, then by further questions it might have been removed by answers obtained from the witnesses exhibiting their knowledge or experience concerning the probable length of time that timber of this quality might be used, as this timber had been, before it would reach the unsafe condition in which it appears to haye been when the accident took place. For that reason no question of competency of the witnesses is included in the case. But the point presented is whether from competent witnesses the evidence proposed to be obtained was admissible. And that it should haye been received is reasonably free from doubt. The investigation which it was proposed, to make through the intervention of these questions was reasonable and direct and might very well have resulted in evidence which would have logically satisfied the jury that the planking on the pier must have been in a dilapidated and unsafe condition, at and before the time when the letting took place in the year 1880. But whether the evidence obtained would have been as satisfactory as that, it is not necessary to decide, for as long as the questions had a tendency to produce such evidence they should have been allowed to be answered by the witnesses.

It was error to exclude the answers, and for this error without considering the effect of the evidence actually produced upon the trial, the judgment should be reversed, and a new trial ordered with costs to abide the event.

Van Brunt, P. J., concurs.

Bartlett, J.

Two of the respondents are sued as part owners, and two as executors of another part owner of pier 54, East river, in the city of New York. On May 1, 1880, it was leased to Frank Phelan for a term of five years. On October 8, 1882, while the pier was occupied by the lessee, the plaintiff’s son, a lad of six years of age, fell through a hole in the structure and was drowned. This action is brought by the father as administrator to recover damages for the boy’s death.

The lessee, Frank Phelan, was impleaded as a defendant, but made default upon the trial. As to the other defendants, the present respondents, the question is whether there was sufficient evidence in the case to have warranted a jury in finding that the pier when leased was in so bad and dangerous a condition as to occasion the defect which caused the accident. If there was sufficient evidence, and the respondents stand in the position of lessors, it was error to dismiss the complaint.

The proof as to the title of the defendants is referred to, but not set out in the record, and it is impossible for us to tell what it was. In the brief for the defendants Steele and Hulton it is argued that they are not liable as lessors, because they did not acquire any interest in the property until after a year after the pier was leased, but the evidence on this subject is too obscurely stated in the case to enable us to say what the fact is in that respect. At all events the motion to dismiss was distinctly based on the assumption of ownership by the defendants at the time of the lease, and they should not be permitted to deny such ownership for the purposes of this appeal.

The principal testimony tending to show the state of the pier when the lease was made was given by William L. McConkey, who was corporation wharfinger at the time of the accident. It was as follows:

“ Q. How long have you known that pier to be a bad one ? A. From the 16th June, 1881.
“ Q. Had you any knowlege of its dangerous condition before that time ? A. Yes, sir; I went the rounds for my father when he was sick.
“ The Court.—Did you know anything about the pier prior to your appointment as wharfinger from your examination ? A. Only when I went to the rounds for my father—examining it.
“ By Counsel.—Q. When did you go the rounds for him ? A. In 1880.
“ Q. How often did you go ? A. Every day; because he was sick.
“ Q. Was not the pier then about as bad as it was in 1882 ? A. Yes, sir.
“Q. What was the trouble ? A The spiles were gone; the timbers were rotten; the crib-work was gone with the tide.
“ Q. That applies as well to 1880 as 1882 ? A. Yes, sir.”

This evidence points to a condition of the pier in 1880 so bad that, if not actually dangerous then,, it must have been presently liable to become dangerous in the course of ordinary use. It is true the testimony of the wharfinger relates only generally to the year 1880, without specifying any particular month, so that his observation of the condition of the pier may have been made subsequent to the execution of the lease; but, on the other hand, it may well be said that the witness intended to cover the whole year, and we think such is the fair import of his testimony in the absence of any limitation.

Three special defects are noted as existing in 1880: The spiles were gone, the timbers were rotten, and the crib-work was gone with the tide. Could the holes which existed in the pier in 1882, including the hole through which the plaintiff’s boy fell, have been formed in consequence of these defects or any of them ? Whether the hole which occasioned the accident was produced by the rottenness of the planking rather than by the giving way of timbers or piles or crib-work underneath, does not appear; but the evidence will fairly sustain the inference that the latter may have been the operative cause, and, if so, the lessors could be held liable, in view of the wharfinger’s testimony to the effect that these under-portions of the structure were in a defective condition at the time of the demise.

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


author: Daniels, J.—

text:
    Thomas J. Hoyt et al., Resp’ts, v. William D. Mann, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1887.)

    1. Supplementary proceedings—Receiver when appointed—Code Civ. Pro., §2464.
    The books of a certain company showed that certain shares of stock stood in the name of the judgment debtor He denied that he owned the stock, and stated that he had previously sold and disposed of it. Held, that the judgment creditor was not concluded by this statement, but could have a receiver appointed in proceedings supplementary to execution, who would be empowered to contest the fact as to the debtor having parted with his interest in said shares. That the appointment of such receiver in no way prejudiced the company.
    2. Practice—Ex parte orders—How appealed from:—Code Civ. Pro., §§ 1301, 1353
    An ex parte order cannot be appealed from, where no application to the special term or the judge making the order to vacate it has been made. Until that is done, there is nothing to review under Code Civil Procedure, sections 1301 and 1353.
    Appeal by the defendant from an order appointing a receiver of his property in supplementary proceedings, and by the Mann Boudoir Car Company from the same order, and also from an order restraining the company from transferring or making any disposition of the property belonging to the judgment debtor, standing in his name on the books of the company.

      John L. Hill and S. F. Prentiss, for app’lt; Morrison & Kennedy, for resp’ts.
   Daniels, J.—

The order appointing the receiver was founded upon the fact that 993 shares of stock appear by the books of the company to stand in the name of the judgment debtor, and while he denied the fact of owning the stock, and stated that he had previously sold and disposed of it, the judgment creditor was not concluded by this statement, but was still at liberty to obtain the appointment of a receiver, who would be empowered to contest the fact that the debtor had parted with his interest in this property. Where the creditor may be disposed to do that, a receiver will be appointed very much as a matter of course to permit him to do it, under the authority of section 2464 of the Code of Civil Procedure. The circumstance, therefore, that the debtor denied having any interest in these shares was not conclusive against the application which resulted in the appointment, and the order appointing a receiver in no way prejudiced the company. For it imposed no restraint upon it. Neither did it require the company to issue certificates of stock to, or in favor of, the receiver. It, on the contrary, entitled him to a transfer of the shares only when he should present proper evidence entitling him, as a matter of right, to such transfer. That evidence could only consist ordinarily in a return of the certificates of the shares themselves, accompanied with power to make the transfer on the books of the company. Until that shall be obtained, or the receiver’s right to the stock maintained in other legal proceedings, he will not be entitled to a transfer of these shares on the books of the company, and the company, consequently, has been in no way injured by the order for his appointment. The order enjoining the transfer of the stock by the company was made ex parte before it was made to appear that the debtor had sold and disposed of his shares in the stock of the company, and no application on the part of the company has at any time been made upon this evidence to the special term, or the judge making the order, to vacate so much of it as contains this restraint. Until that shall be done no adjudication will exist, including this subject-matter, which can be reviewed by appeal under sections 1301 and 1358 of the Code of Civil Procedure. If it shall be important for the company to be relieved from this restraint, it should first apply for that relief upon the evidence, from which it appears that the debtor had no interest whatever in the stock of the company. In the absence of such application, no adjudication can exist which can be made the subject of such an appeal as has been taken in this case.

The order appointing the receiver should, therefore, be affirmed, and the appeal of the company should be dismissed so far as it has been made to include the ex parte order for the examination of the judgment debtor.

But as the probability is so decided that the debtor has no interest whatever in this property, it should be with costs to abide the final event of the proceeding, and without prejudice to a motion to vacate the injunction order.

Van Bbunt and Beady, JJ., concur.


text:
    The People ex rel. Matthew Tuck, App’lt, v. Stephen B. French et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1887.)

    1. Police force—Retirement and pension—Consolidation act, § 307 as AMENDED BY LAWS 1885, CHAP. 364, § 2.

    By Laws 1885, chapter 364, section 3, amending section 307 of the consolidation act, it is provided that any member of the police force, who has or shall have performed duty therein for a period of twenty years or upward, upon his own application * * * shall by resolution adopted by a majority vote of the full board, be relieved and dismissed from said force and service and placed on the roll of the police pension fund, and awarded and granted to be paid from said pension fund an annual pension. * * * Held, that to place an applicant upon the pension roll required action on the part of the police board. That it was necessary that they should determine whether he was entitled to a pension and the amount of it and that for that purpose they had a reasonable time and after the lapse of that, if he was entitled thereto they must pass the resolution as provided by law.

      2. Same—Continuance in service—Effect of.

      Held, that after the length of service required, a member of the force had the option to make the demand or continue in the service, and that until the passage of a resolution entitling him to retirement he remained a member of the force and subject to the rules and regulations applicable to that body.
    3. Same—Application fob retirement does not exempt member from OPERATION OF RULES.

      Held, that a member of the force who had served the length of time requisite to entitle him to make the application for retirement and pension could not avoid the effect of a violation of duty by making such application.
    Appeal from order denying relator’s motion for peremptory writ of mandamus and dismisssing the alternative writ.

      Samuel Untermeyer, for relator; David J. Dean, for resp’ts.
   Van Brunt, P. J.

On November 8, 1865, the relator, who is now 56 years of age, became a member of the police force, and continued to be a member of the force until October, 1886, nearly twenty-one years. On the 2d of October, 1886, the relator had been guilty of conduct unbecoming an officer, in that he had divested himself of his uniform and put on citizens clothing during his tour of duty, and had absented himself from his precinct without permission, that he went to Mount Morris Park, and was there arrested by officers of the park department, for disorderly conduct. On the next day, the 3d of October, he was suspended from duty by his captain, and informed that charges had been preferred against him, and his suspension entered on the blotter of his precinct. On the 4th of October, 1886, the relator filed an application in due form with the board of police, asking to be retired from the force, and to be placed on the pension roll, in pursuance of section 18, chapter 410, of the Laws of 1882, as amended. On the same day written notice was given to the relator, that charges had been preferred against him and a copy of the charges and specifications served upon him and he was notified that a public examination in relation to such charges would be made-on the 16th of October. On the day fixed for the trial before the commissioners, the relator appeared with counsel, and before any testimony was taken in support of the charges, objected to the jurisdiction of the board to try him, and demanded that the board then assemble and pass upon the application which had been filed by him for a pension. This application was refused, and testimony was thereupon introduced in support of the charges. The examination was adjourned, and upon the adjourned day the relator made the same demand, which being refused, the relator left the court room and the trial was proceeded with in his absence, resulting in a decision that the relator was guilty of the charges preferred againt him. At the time that the alternative writ of mandamus was served, the trial- was still in progress and the board refused to comply with the writ and proceeded with the trial, and on the 8tn of October, dismissed the relator from the police department. Upon the return of the alternative writ of mandamus the motion was denied, and the writ dismissed, and from the order thereupon entered this appeal is taken.

The relator claims that, from the moment that he filed his application for a pension, that he was no longer a member of the police force, nor was he any longer subject to the jurisdiction of the police commissioner, and that the only action which they could take was to pass upon his application for a pension, and that as they had no discretion in reference to that matter, they were bound to pension him, and could not discipline him for any act which had been done prior to the filing of his application. The provision upon which the relator relies is to be found in section 2, of chapter 364, of the Laws of 1885, 613, amending section 307, of the Consolidation Act, so as to read as follows:

“ Any member of the police force who has or shall have performed duty therein for a period of twenty years or upward, upon his own application in writing, * * * shall by resolution adopted by a majority vote of the full board, be relieved and dismissed from said force and service and placed on the roll of the police pension fund, and awarded and granted to be paid from said pension fund an annual pension during his life time of a sum not less than one-half the full salary or compensation of such member so retired * * * . Pensions granted under this section shall be for the natural life of the petitioner, and shall not be revoked, repealed or diminished.”

It is to be observed that the placing of the relator upon, the pension roll requires action upon the part of the police-board. The board had to determine the question as to whether he was éntitled to a pension under the law, and also the amount of the pension. They had a reasonable-time in which to determine these questions; and after that reasonable time had elapsed, if the relator was under the law entitled to a pension, they were bound to pass the resolution, relieving and dismissing him from the force and service. But until that was done he was a member of the-police force as much as he had ever been and subject to the rules and regulations governing that force. The relator after he had served such time and under such circumstances as entitled him to be relieved and dismissed from the force for his services, and placed on the pension roll, had the option to make the application and be relieved and dismissed or continued as -a member of the force. In the case-at the bar the relator elected to continue a member of the force, and while a member of the force, he committed a. breach of discipline which justified his dismissal. It cannot be that he can escape the effect of such breach of discipline-by simply filing his application for a pension. As long as. he elected to remain a member of the force he was amenable to the discipline of the board for dereliction of duty; and the board had the right to inflict the punishment provided for by law for such dereliction until he was removed, from his membership in the force by a resolution passed by the board.

As has been observed by the opinion of the learned justice who heard the motion in the court below, it cannot 'be that a man accused and convicted of the gravest crime known to the law, committed while a member of the-police force, is entitled to a pension irrespective of any discipline or supervision of the board merely because he has served for twenty years on the police force and has filed his application before the board has had an opportunity to act upon the charges made against him.

In view of the fact that it was optional with the person entitled to a pension to apply after he had become entitled thereto, it certainly was not the intention of the legislature to relieve him from the rights of discipline which the board-had over the members of the force. The construction contended for would virtually place every member of the police force who had served the requisite time to entitle him to a pension beyond all discipline; for all that would be necessary for such an officer to do in order to escape after having committed the most gross breach of discipline would be to file his application for a pension.

For these reasons as well as those contained in the opinion of the learned judge who heard the motion below, the order should be affirmed with costs.

Brady and Daniels, JJ., concur.


text:
    Alphonso Garofalo, Resp’t, v. Joseph A. Errico et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March, 31, 1887.)

    1. Partnership—Evidence op—What competent.
    Evidence of declarations of one man that another is his partner, is no evidence of the fact, and is not binding upon the other, and is incompetent to prove that fact.
    2. Trial practice—Direction to jury to disregard evidence.
    A direction to a jury to disregard evidence improperly admitted, does not cure the error of admitting it, unless it is manifest that it did not affect the result.
    Appeal from a judgment entered upon the verdict of a jury.

      Joseph A. Showdy, for app’lts; Edward S. Hubbe, for resp’t.
   Van Brunt, P. J.

— This action was brought to recover the price of certain maccaroni alleged to have been sold to the defendants as copartners, and one of the issues tried was as to the copartnership of the defendants, Joseph A. Errico, Louis J. Errico and Francesca A. Errico, with the other defendants.

The deposition of the plaintiff was taken before trial, and ■ plaintiff’s counsel read from it the following question :

In selling the maccaroni and other groceries, with whom of the defendants did you have dealings personally ?

The record shows that this question was objected to by counsel, and the court ruled that the jury would have to discriminate as to how much it bound each.

This question in itself was perfectly proper, and the objection was properly overruled, and what the court meant by the jury discriminating can only be gathered by what follows:

The record shows that the question was repeated and defendants’ counsel, objected to the second branch of the answer to the question, on the ground that it was not evidence against the three defendants in this action, and is hearsay as to them.

The court ruled as before and the defendants excepted.

The answer was then read as follows :

In 1876, Gabriele and his son Vincenzo they came to my factory in Gragnano and proposed to me to do business in maccaroni for use in New York, where they told me they had two houses, one in jewelry and one in grocery.

At that time I began to do business with them, and at the same time they told me they had in New York other sons and brothers who belonged to the same partnership ; that at the same time they mentioned to me the names of Francis A. and Joseph A., who at that time had the direction of business in New York.

The evidence in this last part of the answer was clearly incompetent as to the defendants Francis, Joseph and Louis, who were defending this action. Evidence of declarations of one man that another is his partner is no evidence of the fact, and is not binding upon the other, and it was specifically objected to.

This error is not cured by the ruling of the learned judge that the jury should discriminate as to how much it binds each.

There was nothing in that answer which could possibly bind the defendants appearing.

In answer, it is urged that this exeception is unavailing, because in every instance the jury were instructed that the declarations did not bind any one of the various defendants, except the one who had made the declaration, unless the jury first find that there was a partnership.

This is, however, no answer to objection. The only object of the introduction of such evidence, was to prove a partnership, otherwise it had no pertinency, and it clearly was incompetent to do that, and the jury were left to consider this evidence upon the vital issue in the case.

This evidence was never stricken from the record, and it is well settled that a direction to a jury to disregard evidence improperly admitted, does not cure the error, unless it is manifest that it did not affect the result. Erben v. Lorillard, 19 N. Y., 299; Newman v. Goddard, 3 Hun, 70.

I have, however, searched the record in vain, for a direction to the jury to even disregard this incompetent evidence, which, however, if given, would not have cured the error.

It is not necessary to consider the other questions in the case, as the one suggested seems to require a new trial.

The judgment must be reversed, with costs to the appellants to abide the event.

Bartlett and Macomber, JJ., concur.


author: Per Curiam

text:
    Manley N. Cutter, Resp’t, v. Cora Morris, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1887.)

    Practice—Bills of costs—Disbursements when not stricken out—Stenographer’s minutes.
    The item objected to in a bill of costs was described as the “ stenographer’s minutes used in preparing amendments to case.” The disbursement was sworn to as being necessary and actually incurred in the action by the attorney. Held, without any facts being stated tending to disprove the affidavit of disbursements contained in the bill of costs, the item could not be stricken out.
    Appeal from order striking out an item of disbursements contained in the bill of costs as taxed by the clerk.

      C. E. Codclington, for app’lt; John Hy. Hull, for resp’t.
   Per Curiam

The item objected to is described in the bill of costs as the stenographer’s minutes used in preparing amendments to case. The disbursement is sworn to as being necessary and actually incurred in the action by the attorney.

Various grounds are asserted in the respondent’s points assailing the taxation, among others: Because it was not claimed that there was any request made for the plaintiff’s copy of the minutes, or that it was ever refused; and secondly, that the costs have been retaxed and judgment entered.

It does not appear from the record which has been furnished that the plaintiff ever had any copy of the minutes, neither does it appear that any judgment has ever been entered. The only papers before the court are the bill of costs and the affidavit of the necessity of the disbursements without any facts challenging the verity of the affidavit or showing that the disbursement in question was not necessary. Under these circumstances the court cannot strike out a disbursement which may have been necessary, no facts being stated tending to disprove the affidavit of disbursements contained in the bill of costs.

The order striking out the item should be reversed and the taxation of the clerk affirmed, with tén dollars costs and disbursements.


text:
    William H. Hussey, Resp’t, v. Weeks W. Culver et al., App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1887.)

    1. Evidence—Memoranda—Use of to refresh memory of witness.
    A witness may, for the purpose of refreshing his memory, use any memoranda whether made by himself or another, written or printed, and when his memory has thus been refreshed, he must testify to the fact of his own knowledge, the memoranda itself not being evidence.

      2. Same ■— Action on order drawn against funds in hands of ATTORNEYS-ADMISSIBLE IN DEFENSE.
    Where an action is brought against attorneys for a debtor of the plaintiff to recover the amount set forth in an order made by the debtor against funds in the hands of his attorneys, and payable to the plaintiffs, it is competent for the parties on whom the order is drawn to show that the claims in favor of the plaintiff have been liquidated.
    Appeal by the defendants from an interlocutory decree establishing an equitable lien in favor of the plaintiff upon the proceeds of a certain judgment in the hands of the defendants as attorneys for one Alexander Low.

      Noah Davis, of counsel, for def’ts and app’lts: George C. Lay, of counsel, for pl’ff and resp’t.
   Van Brunt, P. J.

In the disposition of this appeal it seems only necessary to consider an exception taken to the exclusion of evidence upon the trial of the action.

The defendants were the attorneys for one Alexander Low, who had recovered judgment against the Brooklyn, Flatbush and Coney Island Railroad Company, and which judgment was subsequently paid to said attorneys. The said Low being indebted to the plaintiff for goods sold and delivered, on the 18th of March, 1880, gave an order upon his attorneys, the defendants, directing them to pay to the plaintiff all moneys collected or received by them upon said judgment after the payment of their costs, charges and fees therein. This order was delivered to the defendants on the day when it was given. On the 23d of October, 1883, Low countermanded his order of March 18, 1880. The plaintiff having, after such countermand and the payment of said judgment, made a demand upon the defendants to carry out the order of March 18, 1880, which they refused, subsequently this action was begun to compel the defendants to account for the proceeds of said judgment after the deduction of their costs, charges and fees therein. The defendants answering, set up the above facts and alléged that the said Alexander Low had been fully paid by them all sums to which he was entitled growing out of the action above mentioned.

Upon the trial of the action it was claimed by the plaintiff that at the time of the giving of this assignment Low owed to him a balance of $3,000 or $4,000. Low was called as a witness and asked the following questions:

‘'Have you taken from your books a statement of the amount that you paid Mr. Hussey between 1880 and 1885? ”

This question was objected to by the plaintiff’s counsel because the books are the best evidence. Objection sustained, exception taken.

Q. Are you able, after looking at this statement, to say how much you have paid ? A. After looking at the paper I could tell.

Q. Look at this paper and state how much has been paid ?

This was also objected to on the same ground; the objection was sustained, and the defendants excepted.

This ruling seems to have been error because the rule appears to be well established, as follows: The law as to the use of memoranda by witnesses while _ testifying is quite well settled in this state A witness may, for the purpose of refreshing his memory, use any memoranda, whether made by himself or another, written or printed, and when his memory has thus been refreshed he must testify to the fact of his own knowledge, the memoranda itself not being evidence. Howard v. McDonough, 77 N. Y., 593.

Therefore, in the case at bar the witness had a right to refresh his recollection by looking at the statement if such statement would refresh his memory, and he would, after such application, be able to testify from his recollection, independently of the paper. It may have been true that if the witness had been cross-examined in reference to this statement, it might have been shown that he had no recollection independent of the statement, and perhaps, under such circumstances, he would not have been allowed to testify from the statement, but as his evidence shows or tends to show, that after looking at the paper, his recollection would have been refreshed, and he would have been able to state how much had been paid by himself to Hussey, on account of the indebtedness existing between them, therefore, if the testimony was material, an error was committed.

It is urged, however, that the exception is untenable, upon the ground that the evidence was immaterial, the claim being that the assignment of March 18 1880, was absolute and irrevocable, and that it was founded upon the indebtedness then existing which is conceded. The concession that the assignment was absolute does not appear in the case, hut the plaintiff has sworn in the petition contained in the case that it was given to him for the purpose of securing to him said Low’s indebtedness, which seems to be inconsistent with the idea that the assignment was absolute and extinguished the debt. In any event, the defendants had a right to show that subsequent to the assignment Low had paid his indebtedness in full, to Hussey, and that therefore, he had a right to revoke the order, and that the plaintiff had no right to the funds in the defendant’s hands.

It might be that if the objection had been taken that as the defendants had not alleged in their answer this payment by Low to the plaintiff, that a ruling sustaining the objection might be upheld. But if that objection had been taken at the trial, there would undoubtedly have been an application to amend the answer, which amendment the court would have been justified in granting and thus the evidence rendered material. But the only objection taken was that • the books were the best evidence, which objection, as has been above shown, was not well taken.

It would appear, therefore, that it was error to reject the evidence upon the ground stated, and that the judgment must be reversed and a new trial ordered, with costs to appellants to abide the event.

Brady and Daniels, JJ . concur.


author: Van Brunt, P. J

text:
    Ralph Schoonmaker, Resp’t, v. The Mayor, etc., of New York, App’lt. Frederick W. Loom, Resp’t, v. Same, App’lt. Thomas J. Powers, Resp’t, v. Same, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1887.)

    Practice—Answer—When stricken out as sham and frivolous.
    If an answer, or any portion thereof, is sham and frivolous, it must be-so plainly so that there can be no controversy or argument on the subject in order to have it stricken out for that cause.
    Appeal from order striking out portions of the defendant’s answer as sham, frivolous, irrelevant and immaterial.
    Gr. L. Sterling, for app’lt; Shipman & Acker, for resp’t.
   Van Brunt, P. J

—The record in this case shows a rather ingenious attempt to get this court to adjudicate upon legal propositions which could only be brought up properly by an appeal from the judgments rendered in the actions. It is the first time, so far as we have been able to ascertain, that the defense of the Statute of Limitations has been stricken out as sham, frivolous, irrelevant and immaterial, particularly where the respondent, for the purpose of showing that it is sham and frivolous, has devoted pages of his points in discussing a difficult question of law. If an answer, or any portion thereof, is sham and frivolous, it-must be so plainly so that there can be no controversy or argument on the subject. It being demonstrated by the arguments which have been submitted upon this appeal that the orders are not so plainly right but that they must be supported, if they can be at all, by elaborate discussion and citation of authority, they seem to be erroneous and should be reversed, with ten dollars costs and disbursements-in each case.

Brady and Daniels, JJ., concur.