author: Per Cijriam.

text:
    Thomas F. Gale, Resp’t, v. George Roll, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 12, 1894.)

    Brokers—Commissions.
    In an action to recover commissions, the burden is upon the broker to establish, by a preponderance of evidence, that he was employed to make the sale, and that he was the procuring cause of the sale.

      Appeal from, a judgment entered upon a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes of the court.

      August Kohn, for app’lt; J. H. K. Blauvelt, for resp’t.
   Per Cijriam.

This action was brought to recover commissions alleged to have been earned in effecting a sale of Ho. 40 West End avenue in August, 1891. In and prior to August, 1891, John Ruck was the owner of a block of 64 houses, bounded by Tenth avenue, Eleventh avenue, Sixty-Sixth street, and Sixty-Seventh street. He had an office in Sixty-Sixth street, near Tenth avenue, at which he rented his property, collected rents, and made sales, when advantageous terms were offered. The plaintiff had been in the employ of Mr. Ruck for a year or more prior to August, 1891, and was engaged in collecting rents, letting rooms and apartments, and showing the houses to intending purchasers. At some time prior to August 1, 1891, (the date not appealing.) Mr. Ruck conveyed Ho. 40 West End avenue, and other houses in the block, to George Roll, as security for a loan. Roll never took possession of the property, or assumed its management ; but it was managed by Mr. Ruck, as before the conveyance, who advertised it for sale, in his own name, in the Herald, Tribpne, Sun, and other newspapers. On the 15th of August, Ruck signed for defendant a contract to sell the house to Samuel H. Denton for $35,000. A day or two afterwards, Roll executed the contract, and, September 1, 1891, the house was conveyed by Roll to Denton, pursuant to the contract. The foregoing facts are conceded. The plaintiff alleged in his complaint, and testified, that the defendant emplojmd him to sell this house, and agreed to pay him a commission of one per cent, if a sale were effected. The defendant denied this, and testified that he never employed the plaintiff to effect a sale of the property, but told him that Mr. Ruck controlled the property, and that, although they wished to sell it, he had no right to pay a commission, because the house belonged to Mr. Ruck. The plaintiff testified that early in August, 1891, he met vMr. Denton in the street, (never having spoken with him before,) asked him if he wished to buy a house, and after some conversation they examined Ho. 40 West End avenue; that, a few days afterwards, Denton came to John Ruck’s office, in which plaintiff was employed, for the purpose of purchasing the property, and that he referred Mr. Denton to Mr. John M. Ruck, the attorney for the defendant; and that a contract was entered into. Mr. Denton testified that lie had no such interview with the plaintiff; that he learned that the house was for sale through an advertisement in the Herald ; that be went to Roll’s office, where he saw Gale, and was by him shown the property ; that when he next went to the office the plaintiff introduced him to John M. Ruck, who went with him to see the defendant; and thatt he plaintiff had no other connection with the sale of the propery.

The undisputed fact in this case are that, at the time of the sale, Ruck was the beneficial owner of the property which was being advertised for sale in his name, and that it was actually sold from his office, in which the plaintiff was then employed; and these facts render the testimony of the plaintiff, that the defendant employed him to sell this property on commission, highly improbable. In addition to this, Denton, the purchaser, testified that his attention was called to the property by the advertisement in the Herald; that he went to Ruck’s office, and there saw the plaintiff for the first time and went with him from the office to examine the property and a few days afterwards returned to the office, and contracted tor the property with John M. Ruck, the attorney for Roll and the son of John Ruck. The burden was on the plaintiff to establish by a preponderance of evidence (1) that he was employed by the defendant to sell the house; and (2) that he was the procuring cause of the sale. We think that be failed to establish either proposition by a fair preponderance of evidence, and that the judgment and order should be reversed, and a new trial granted, with costs to the appellant, to abide the event.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    Charles E. Hadden et al., Resp’ts, v. Metropolitan Elevated Railway Company et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed January 12, 1894.)

    1. Damages—Elevated railway/
    The court or referee, upon proof that the plaintiff had no ownership in the bed of the street, should confine his consideration to the consequential damages resulting from the taking or impairment of the easements.
    8. Evidence—Elevated railway.
    The effect of an elevated road on other property similarly situated in the same neighborhood, is admissible.
    3. Same.
    The price at which adjoining property sold at auction is competent.
    Appeal from a judgment entered on the report of a referee.
    Davies, Short & Townsend (Judien T. Davies and George T Aid-rich, of counsel), for app’lts; Smith, Bowman & Close (Artemus B. Smith and Arthur L. Renthorn, of counsel), for resp’ts.
   O’Brien, J.

The judgment awards the plaintiffs an injunction unless the defendants shall pay $5,000 fee damage for the conveyance and release of such portion of the easements as is taken by the railroad. The referee finds no past or rental damages.

In Sutro v. Manhattan Railway Co., 137 N. Y., 594; 50 St. Rep., 701, it was said:

“ A very clear case should be presented, we think, on the part of the owner of improved property, to justify an award of fee damages when an award of past damages is denied. The court ought not, we think, to assume that the present condition is not to continue, or to award fee damages on the speculation that by future changes in the operation of the road, or the location of its stations, the benefits which it now receives will be withdrawn.”

It is not claimed that the referee erred in refusing to find upon the evidence that there were no past or rental damages, it appearing that the plaintiffs or their predecessors in title occupied the entire premises for twenty-five years, with the exception of the three years last past, during which a portion was leased to a dealer in old iron, which portion shows an increase, Upon this state of the record, it remains to determine whether, in the language of the . court of appeals, “ a very clear case ” is presented, justifying the award made here, of $5,000, for the fee damage. It will be unnecessary to examine the voluminous record presented, it being sufficient to call attention to certain rulings made by the 'referee,. to show that he misapprehended the rules of law applicable to cases of this character, and thus his decision is intelligible. The plaintiffs alleged ownership in the bed of the street, which was denied; and notwithstanding that no evidence was presented tending to prove ownership, and in the face of a concession that, if such existed, it was’taken away when the street was widened, the referee refused, though so requested, to find non-ownership in the bed of the -street It is true that, irrespective of the ownership of the street, .the deféndants are liable for the damages inflicted on plaintiffs’ premises by their appropriation of some portion of the easements appurtenant. thereto; but as the claim was made that a portion of the property owned by the plaintiff, in addition to the easements, was taken, it was proper that the referee, upon proof showing that plaintiffs had no ownership in the bed of the streeet, should confine his consideration to the consequential damages resulting from the taking or impairment of the easements.’ What abutting owners are entitled to have assessed has been frequently stated, but in no case more clearly than that of American Bank Note Co. v. New York El. R. R. Co., 129 N. Y., 252; 41 St. Rep., 531, wherein it was held (head note):

“ That the railroads are liable only for such consequential damages as result from the invasion of property rights-—that is the taking of their easements in the street These are: The easement of air, which is impaired by smoke and gases, ashes, and cinders; the easement of light, impaired by the structure itself, and the passage of the cars thereon; the easement of access, affected by the dropping of oil and water, and by the frequent columns.”

And And in Messsenger v. Manhattan Railway Co., 129 N. Y., 503 ; 42 St. Rep., 96, it was held that in estimating those damages the evidence must be confined to what the railroad is authorized to take or interfere with, to wit, the easement of light, air. and access.

Notwithstanding the law of these cases, the referee refused to find when requested, that “ the only property in said street appurtenant to said premises consists of the easements of light, air, and access in and over the same,” and that “ the said easements appurtenant to the plaintiffs’ land taken for the said railway uses, aside from any damages to said land from the said taking, have in themselves only a nominal value.” To such refusals, the defendants properly excepted. We must assume, therefore, that in refusing to find that the plaintiffs had no title to the bed of the street, and in refusing to find that the only property therein of the plaintiffs consists of the easements of light, air, and access, the referee was inclined to include as damages elements either of ownership in the bed of the street, or some other element of damage which can only be surmised. And that the referee included and considered items of damage other than those allowable is shown by the twenty-fifth and twenty-ninth findings made at plaintiffs request, to which exceptions were taken. That such findings are erroneous and prejudicial is apparent, not only from the cases already referred to, but also those of Newman v. Met. El. Railway Co., 118 N. Y. 618; 30 St. Rep. 36; Bohm v. Same, 129 N. Y. 576; 42 St. Rep. 247; and Lazarus v. Same, 69 Hun, 190; 53 St. Rep. 31.

We think, too, that the learned referee erred in excluding certain evidence offered by defendant. Thus, a witness who had for-' merly occupied some lofts on the same avenue, and within two blocks of plaintiffs, the construction and operation of the railroad being the same in front of each property, was asked a number of questions as to the effect of the operation of the road in front of the premises formerly occupied by him,—among others, as to whether the road caused any material or substantial interference with the light, air, and access appurtenant to the premises, and as to whether he observed any injury to his stock of goods resulting from the maintainance and operation of the road, and also as to whether the road interfered with his business, or with the use and occupation of the premises; all of which questions were excluded, under plaintiffs’ objection, and we think erroneously, under the decision in the Doyle v. Met. El. R. R. Co., 49 St. Rep. 746; where, in the course of the opinion, the court said:

“Sixth avenue is a broad avenue, of uniform width; and, while the premises occupied by the witnesses were not in their situation exactly like the plaintiff’s, they were similarly situated, and the questions would have elicited facts proper for the guidance and information of the court. It was proper for the defendants to show the general effects of the road upon abutting premises. Much of the damage which the plaintiff claimed was caused to her premises, if it was actually caused to the extent claimed by her, must have been common along the avenue in the vicinity of her premises, and proof of the effects upon premises not too distant from hers should have been received.”

So, too, the referee, under objection, excluded the testimony of defendants’ expert as to a sale at auction of a piece of property adjoining the premises in suit, at which the plaintiff was present and one of the bidder’s, who testified that lie heard the price at which the property was knocked down. Notwithstanding such testimony, he was denied the right to state what the property sold for. The same ruling was also made with respect to another piece of property á few doors from plaintiffs’ premises, which the same witness testified he had seen sold at auction, and heard the property knocked down at the sale. Although such testimony is by no means conclusive, we think, as tending to show the course of values, it is as competent and strong as experts’ opinions as to the value of particular pieces of property in the neighborhood or adjoining the ones in suit. Such testimony called for facts within the personal knowledge of the witness as to two actual sales occuring in the immediate vicinity. We think that if, in these actions, the course of values could be shown by actual sales, it would furnish a more certain basis than the speculations of experts of their mere expressions of opinion as to the rise and fall of values in particular localities. We think that such evidence, at all events, was competent, and shouid have been admitted, and given such weight as the referee thought it entitled to.

There are other exceptions to which we might advert, but we think sufficient has been shown to make it appear that where no past damages have been awarded, and where a substantial sum has been given for the fee damage, the views entertained by the referee, as shown by his rulings upon evidence and his findings, were prejudicial to the defendants, and account in the absence of other certain basis, for his conclusion. We think, therefore, that the judgment should be reversed, and a new trial ordered before another referee to be appointed by this court, with costs to appellants to abide the event. All concur.


author: Per Curiam.

text:
    Eliza M. Harrison et al., Executors, etc., App’lts, v. William H. Harrison et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed January, 12, 1894.)

    Damages—Injunction.
    The defendant, on recovering judgment in an action in winch an injunction was granted, can recover only the damages sustained by reason of the injunction.
    Appeal from an order confirming the report of the referee.

      Daniel Daly, for app’lts; Michael A. Quinlan, for resp’ts.
   Per Curiam.

This proceeding was conducted on the erroneous theory that because an injunction was granted pending the action, which resulted in favor of the defendants, therefore they were entitle to recover as damages all the costs and expenses incurred in defending the action; whereas they were only entitled to recover the damages sustained by reason of the granting of the injunction, which, so far as the evidence discloses, consisted of the expenses incurred in attempting to have it dissolved. But, as no objection was taken to the admission of the evidence offered, a refusal for that reason will not be had.

The referee has found that the total cost to the defendants of the action and of this proceeding, including the expense of the motion to vacate the injunction, was $200; but it appears that the defendants were awarded by the judgment, and their attorney has received from the plaintiffs, $115, which sum the referee should have deducted from the total amount which he found had been incurred by the defendants in the action. Howell v. Miller, 5 N. Y. Law Bul. 88.

The order appealed from should be so modified as to direct that the plaintiffs pay to the defendants the sum of $85, and, as so modified, affirmed, without costs.


author: O’Bbien, J.

text:
    Nathaniel Jarvis, Jr., Resp’t, v. Manhattan Beach Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January, 12, 1894.)

    Corporations—Stock issued without authority.
    0 A corporation is liable for damages sustained by a broker who guarantees, upon sale, the genuineness of a false stock certificate, as required by a rule of the stock exchange, after inquiry at its office and information that it is genuine.
    Appeal from a judgment entered upon a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      William J. Kelly, for app’lt; Charles Steele, for resp’t.
   O’Bbien, J.

The facts appearing upon the former appear and the decision of this court thereon will be found reported in Jarvis v. Manhattan Beach Co., 53 Hun, 362; 25 St. Rep. 1. So far as the same questions are here involved, that decision is controlling. In accordance with the views expressed in the opinion, the question of fact as to whether or not the representations as to the validity of.the certificate on which Fox & Co., relied were actually made by the defendant was submitted to the jury, and their finding in plaintiff’s favor is conclusive. But the appellant insists that there are some material differences between the testimony adduced at the last and upon this trial, which will be briefly noticed. Upon both trials it appeared that one Fullerton was the clerk in the office of the defendant, to whom was assigned the duty, under the direction of the treasurer of the company, of attending to the transfer of stock. A member of the firm of Fox & Co., testified that he knew that Fullerton was a clerk, and had been introduced to him as an employe of the defendant. It also appeared that Fox & Co., guaranteed Begnell’s signature without knowledge that it was genuine, and that such guaranty was pursuant to a rule of the stock exchange, without compliance with which it would not have been there negotiable; such signature afterwards appearing to have been that of a fictitious person. It further appeared that the firm of Fox & Co., had done considerable business with this clerk, and that he kept an account with them; also that, in addition to this, other certificates of the defendant had been from time to time by him given to Fox & Co., and that in some instances that firm were accustomed to have those shares transferred in the name of a clerk in their employ, thereafter selling the same upon the stock exchange. This evidence brings up the only new question in the case, which was presented by defendant’s request to be allowed to go to the jury upon the question of the good faith of Fox & Co., to whose interests the plaintiff succeeded. The court refused this request upon the ground that there was not evidence enough to carry this question to the jury, to which refusal the defendant excepted.

In addition to the reason assigned by the judge in the court below, we think there is another ground upon which the ruling could be upheld. It was not claimed that these other transactions were in any way connected withe the certificate here involved; nor was it claimed that this certificate wos issued in the name of Fox & Co., or any of their employes; nor did they, as in the instances testified to, have it transferred: They presented it at the office of the registrar, the Central Trust Company, and to the defendant, company itself to ascertain whether it was genuine and valid, and would be accepted for transfer, so that they would be safe in endorsing it for delivery on the stock exchange. It must be remembered that there was no evidence that Fox & Co., were in any way connected with the fraudulent transactions of Fullerton, their relation being simply that of brokers, who, in selling the certificates for Fullerton, receiving only their usual commission. So that, against any slight inference to be drawn from the-evidence to which we have adverted, there were, on the other side, these facts appearing, together with the additional one that it is-hardly to be presumed that they would,have guaranteed the certificate, and thus become liable for its genuiness, when they had no interests whatever in the proceed of sale beyond their regular broker’s commission. Or, if they had been participators in the clerk’s fraudulent acts, it is hardly probable that they would have gone to the pains of making inquires at the office of the trust company and the office of the defendant, which should have broughthprne notice to the defendant of the fraudulent character of the certificate. It will thus be seen that against a very slight presumption of fraud or bad faith there was a great preponderance in favor of the view that Fox & Co. acted with prudence, and followed in the transactions their ordinary methods and course of business. There can be no question that, had the certificate been presented for transfer, and a demand for a new one made, in view of the evidence showing what was done in similar instances, the holder would have obtained such new certificate; and that, as against a person holding such new certificate, the defendant, under the authorities of Beach Co. v. Harned, 27 Fed. 484, and the decision of this court upon the former appeal, would have been estopped. Since these cases were decided it has been held by the court of appeals in Fifth Ave. Bank v. Forty-Second St. & G. St. Ferry R. Co., 137 N. Y. 231; 50 St. Rep., 712, that where a certificate of stock shows apparently all the essentials of genuiness, a bona fide holder thereof is entitled to recognition as a stockholder if a new certificate can be legally issued to him, or to indemnity if "this-cannot be done. That case, together with other cases decided by this court, and handed down herewith, Hanover Nat. Bank v. American Dock & Trust Co., 56 St. Rep., 862, fully discusses the legal principles that underlie the question of a company’s liability upon forged certificates of shares of stock, which need not here be further elaborated. Upon the law determining the rights and liabilities of parties with respect to fraudulent certificates of stock those cases are controlling in this court.

We have examined the exceptions taken to the rulings upon-questions of evidence, but do not regard them of sufficient importance to require any special consideration, or to justify our interfering with the verdict of the jury. We think, therefore, that the judgment should be affirmed, with costs and disbursements. All concur.


text:
    Catharine King, Resp’t, v. The Second Avenue Railroad Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 12, 1894.)

    1. Appeal—Curing error.
    The admission of improper testimony is cured, where the witness gives the same version of the affair and the court strikes out the improper portion of the statement.
    3. Same—Irrelevant.
    The exclusion of irrelevant evidence, on the cross-examination of a party, is not error.
    3. Same —Discretion.
    It is in the discretion of the court to permit a leading question on re-direct examination, to show that the witness was mistaken in his recollection.
    4. Evidence—Opinion.
    A lay witness may, after stating his observations as to the physical condition of a party, characterize it as better or worse than at some previous time.
    5. Same.
    A physician may, where he has stated the facts, give his opimon as to> whether a party will ever recover from an injury.
    Appeal from a judgment entered upon a verdict in favor of the plaintiff, and from an order denying a motion for a new trial made on the minutes of the court.

      Merrill & Rogers (.Payson Merrill and Jason Unman, of counsel), for app’lt; Hart & Price (George H. Hart, of counsel!, for resp’t
   O’Brien, J.

This action was brought to recover damages ior personal injuries to plaintiff, claimed to have been suffered by reason of an assault made upon her by one of the defendant’s conductors while she was riding as a passenger upon one of its cars. The plaintiff’s evidence tended to show that the conductor, without any cause, and while under the influence of liquor, first insulted, and then assaulted, the plaintiff, while that of the defendant tended to show that, at the time of the occurrence, plaintiff was excited by liquor, and that when the car stopped she would not get off, but remained standing in the car talking, and that, when it started, she fell over onto the seat Witnesses were examined to support these respective contentions, and the jury having determined in plaintiff’s favor upon sufficient evidence, their verdict is conclusive.

The defendant, however, strenuously urges upon this appeal that the result was reached by erroneous rulings made by the trial judge in admitting and excluding evidence. During the course of her narrative the plaintiff testified as follows: “ He (the conductor) grabbed me by both arms, and dragged me to my feet, and tried to throw me off the car.” When she had concluded her story, a motion was made to strike out the statement above quoted, which was denied. Though the exception to this ruling be held good, we think the error was cured by what immediately thereafter occurred. The witness was instructed to state what the conductor did, and to omit stating what he tried to do; and upon the witness again narrating the occurrence, using the same language about the conductor trying to pull her off the car, and upon the defendant’s counsel moving to strike out the words, the motion was granted. Thus the jury’s attention was called to the fact that such evidence was not proper, and, by the judge’s rulings, were apprised of the fact that it was out of the case, and not to be considered.

The next error claimed relates to a question asked by defendant’s counsel on cross-examination of plaintiff, which it is insisted should have been allowed. The plaintiff was being cross-examined as to whether or not she permitted those who occupied her house as lodgers or tenants to bring liquor therein, and after this had been fully gone into, and she had stated that she did not allow it if she knew it, the following question was asked: “Did you endeavor to stop it on the night when Mrs. Julia Ward O’Connell was killed? "’ It had been shown, prior to this question being asked, that a woman named O'Connell had died in plaintiff’s house, which it appears was fitted up in furnished rooms, and thus occupied by tenants. An inquiry as to what occurred on the night when Mrs. O'Connell was killed was entirely irrelevant and immaterial. Plaintiff was in no way connected with that occurrence beyond the fact that she had rented her rooms to O’Connell and his wife, and that while they so occupied them the latter had died, as it would appear, at the hands of her husband, who was subsequently imprisoned, being held responsible in some way for her death.

A witness for plaintiff, on her direct examination upon the subject of what she observed subsequent to the injury as to the physical condition of the plaintiff, after stating that she complained and moaned all niglit, went on to say that upon the next and the day thereafter the plaintiff was worse. While this, to some extent, may be regarded as a statement of a conclusion by the witness, it was, after all, but the expression, on the witness’ part, of what she observed; and we do not think that the admission of such testimony, appearing, as it did, in the course of a statement by the witness of what she observed as to the condition of the plaintiff during the two or three days succeeding the occurrence, was prejudicial error, because the opinion whether one is apparently better or worse does not require any medical skill or training, but the competency thus to characterize another’s condition is gained by ordinary experience and observation.

The next exception, and which is the one upon which most stress is placed by the appellant, is to the allowance, over objection, of a question put by plaintiff’s counsel upon the re-direct examination of Dr. Nitne, who was plaintiff’s attending physician, and was being examined as a witness on her behalf. Upon cross-examination this witness had been asked to state what he was told as to the place where the foetus after the miscarriage had been deposited; and he had stated that plaintiff had told him that the miscarriage had occurred while in the closet, previous to his arrival. He further stated, however, that it was some years since the occurrence, and that he could not remember whether he gave the same testimony at the police court, but that he was testifying from present recollection. On the other hand, all the plaintiff’s witnesses except this doctor had testified that it had occurred in the room. Upon the redirect, the doctor was asked if he might not have been told by plaintiff that it was deposited in a" vessel, and afterwards taken into the closet. Having in mind his previous testimony that he was not very positive, it was entirely competent to show how certain or fixed was the doctor’s recollection, and as to whether or not he wished to be understood as testifying positively, or as giving, after some years, his best recollection. While the objection to the form of the question as leading was good, we think that as the testimony itself was competent, and it was the right of the plaintiff to have elicited the fact as so how fixed or positive was the doctor’s recollection, and as the form itself is always a matter in the discretion of the trial judge, the exception must fall.

Another ruling brought in question is the admission over defendant’s objection, of the question to one of the physicians as to whether, in his opinion, the plaintiff would ever be able to bear children, to which he answered, “Hoand this was followed by another question, to state whether or not, with reasonable certainty, the condition of the plaintiff would improve. The doctor, in answer to this latter questions gave the facts upon which his opinion on the first question was based, by. saying that the plaintiff, in some respects, would not improve, because she “has begun to pass the change of life, caused by the constriction or want of blood to the organs at that time and that such change is called the “grand climacteric,” which term the doctor fully explained to the jury; it being shown, therefore, that, although the question itself called for an opinion, the doctor stated fully the facts upon which such opinion was based, and spoke on a subject concerning which a medical man could testify with reasonable certainty.

The final error assigned is to the exclusion of a question asked one of plaintiff’s witnesses on cross-examination. Another witness for the plaintiff had testified that the conductor approached the plaintiff by the westerly running board of the car, while the witness then being examined had stated that the conductor was on the eastterly running board He was then asked if he had heard the other witness testify directly contrary to his own statement to which objection was made, and the question excluded. We have frequently had occasion to say that the extent to which cross-examination shall be permitted is within the discretion of the trial judge, and we do not think, after both witnesses had given their recollection as to the position of the conductor, it made any material difference whether the witness on the stand had heard another witness testify directly to the contrary or not. It is true, it might have some bearing upon the question of credibility, and ordinarily some latitude is allowed for the purpose of testing the same. But in ,the state of this record, we may say, in concluding, what applies with respect to this objection, and to all the others which we have have examined at the request of the appellant,—that none of them is so serious or meritorious as to require of us a reversal of this verdict, involving, as it would, the labor, expense, and delay of a new trial, when it is not made to appear that any prejudice or injury has resulted to the defendant, and where the verdict, in other respects, appears to-be right. We are of opinion, therefore, that the judgment should be affirmed, with costs.

All concur.


author: Parker, J.

text:
    Mark Lythgoe, Resp’t, v. Charles Lythgoe et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed, January 12, 1894.)

    1. Judgment—Former adjudication.
    Where a judgment roll shows an adjudication on the question of the marriage between the plaintiff and defendant therein, it is binding in an action for partition between the same parties or their heirs.
    3. Same—Failure of clerk to sign.
    The failure of the clerk to sign a judgment roll does not affect the validity of the judgment.
    Appeal from an interlocutory judgment in favor of plaintiff.

      A. J. Skinner, pro. se.; L. A. Gould, for app’lt Martha Lythgoe; E. B. Weselman, for app’lts Charles Lythgoe et al; Peck & Field, {Fdward S. Peck, of counsel,) for resp’t.
   Parker, J.

The judgment appealed from was rendered in a suit brought to partition certain real estate, and it adjudges that the defendant Maria .Linden is the widow of the testator, who devised the property to certain of the other parties to the action, and entitled to dower therein. The complaint alleges that she was married to the testator, James Linden, in the year 1842, but that the marriage was void, for the reason that at the time of its solemnization she had a former husband living, named John Craig, and that her marriage with Craig was in full force at the time of her marriage to Linden, and still continues to be. Upon the trial, plaintiff, against the objection of defendant Linden, introduced evidence tending to show her marriage with one John Craig prior to 1842, and that Craig is still living. Thereupon, she put in evidence the judgment roll in an action in the court of common pleas for the city and county of New York between James Linden, plaintiff, and Maria Linden, defendant, which she contended adjudged and determined that she did not have a husband living at the time of her marriage with Linden, and that their marriage was valid and lawful. Thereupon, a motion was made by defendant Linden to strike out all of the testimony offered by plaintiff for the purpose of showing that her marriage with Linden was invalid. The motion was granted, and subsequently the referee made his report, in which he found she was the widow of Linden, and entitled to dower in the premises. From the judgment entered thereon, and in conformity therewith, this appeal comes.

Thev question presented is whether the judgment roll is res judicata upon the question of the validity of the marriage with Linden, which it is conceded was solemnized in 1842. It is well settled that where a disputed question is litigated, and then directly passed upon by a court of competent jurisdiction, it cannot thereafter be brought in question in any subsequent action between the same parties or their privies 2 Black, Judgm. § 504; Smith v. Smith, 79 N. Y. 634; Patrick v. Shaffer, 94 N. Y. 424; Williamsburg Sav. Bank v. Town of Solon, 136 N. Y. 465-475; 49 St. Rep. 840. It is necessary that it should affirmatively appear, either from the record itself, or from such other evidence as may be necessary to show the grounds upon which the action proceeded to final judgment, that the question alleged to be res judicata was not only in issue, but directly adjudicated upon. It must be removed from the questionable domain of uncertainty and doubt, and become so positive that it must be known what was passed upon by the court. Now, the defendants presented no evidence, aside from that furnished by the judgment roll, tending to show what questions were passed upon; and we must, therefore, examine it to see whether it establishes, as positive as the rule requires, that the question which plaintiff sought to establish in this action was passed upon in that. Looking first at the minutes of the court, we find that a jury was impaneled; that three witnesses were sworn in behalf of the plaintiff, and four were called by the defendant; and that the jury returned a verdict in favor of the defendant. Turning to the judgment, we read:

“ The issues in this action having been tried before a jury, and a verdict having been rendered therein in favor of the defendant, it is ordered, adjudged, and decreed that judgment herein be, and the same is hereby, given for the defendant, and that the marriage between the plaintiff and defendant, in the pleadings mentioned, is a valid and lawful marriage.”

Thus it appears that the issues were tried, and what those issues were quite clearly appears from the provision in the decree adjudging the marriage between the parties to be valid and lawful. The judgment roll furnishes other evidence touching the question tried and decided. The judgment declares that the issues in the action were tried, and the pleadings determined what the issues were. Turning to the complaint, we find that the plaintiff alleges his marriage with the defendant; that they subsequently lived together as man and wife; that the issue of the marriage was one child, named Martha, then living. And then plaintiff alleges the discovery by him that the “ defendant has a husband living¡ by the name of John Craig, and that said Craig was living at the time of said marriage between plaintiff and the said defendant; and the said plaintiff insists that the said marriage between plaintiff and defendant was and is unlawful, for the reason aforesaid, and prays that said marriage thus existing between them in consequence of such marriage may be dissolved by a decree or judgment of this court. ” The issue, then, and the only one, which the plaintiff tendered to the defendant, was that at the time of their marriage she had, and still has, a former husband living. Defendant, in her answered, averred that John Craig absented himself for the space of five years and upwards, without being known to her to be living during that time; and the answer avers that defendant “ further denies, upon her belief, that she has a husband by the name of John Craig, or that Craig was living at the time of said marriage between plaintiff and defendant, as untruly alleged in said complaint,” and insists that “ the marriage should not be declared unlawful, nor dissolved, by the judgment of the court.” Defendant asked for no affirmative relief against the plaintiff, and, necessarily, the question in controversy, and the only one, was whether she had a former husband living. To the suggestion by the appellants that the case may not have been, disposed of upon the merits; that, perhaps, the complaint was dismissed,—the answer is that the minutes of the court assert that the jury rendered a verdict for defendant. This judgment roll, which was made up something over 40 years ago, established that a valid and effectual judgment was rendered. The court of common pleas had jurisdiction of the subject-matter and of the parties. Laws 1849, c. 438, § 33, subds. 1, 2. The court had power to be tried by a jury. Code Proc. § 254. The Code did not require that such order be made a part the judgment roll, and it must be presumed that the procedure, in such respect, was regular. The judgment roll contains the summons, pleadings, the minutes of the court, the verdict, and a copy of the judgment, and therefore complies with the statute then in force. Code Proc. § 281, subd. 2.

At the end of the copy of the judgment attached to the judgment roll were the following words: “ A copy. Geo. W. Riblett, Clerk.” Through these words, by means of pen and ink, a line has been drawn. When and by whom, does not appear. It is certainly not conceivable that the respondent, or any one in her behalf, could have been led to attempt the mutilation of a judgment roll, the validity of which was so important to her. But it was not necessary that the clerk should sign the copy of the judgment. He did sign the minutes of the court, and, on the rendering of the verdict, it was the clerk’s duty to enter judgment, which, after the expiration of four days became final. Code Proc. § 265. And the omission to sign the judgment roll did not affect the validity of the judgment, as it involved a mere question of practice and of regularity. VanAlstyne v. Cook, 25 N. Y. 489; and that which it was not necessary to do, in order to give life to the judgment, the undoing of will not take away. The judgment should be affirmed, with costs. All concur.


text:
    Simon Newman, Resp’t, v. Herman A. Curiel et al., App’lts.

      (Supreme Court, General Term, First Department

      Filed January 12, 1894.)

    Evidence.
    In the absence of such knowledge of the circumstances lying at the foundation of the claim made as enables the alleged debtor to determine whether it has such support, in fact as to make a settlement of it necessary or prudent, a compromise is not, in case of fraud, binding upon such debtor, and he may, in an action to enforce it, give evidence tending to show such fraud.

      Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial

      Stern & Rushmore, (Charles J$, Rushmore, of counsel,) for app’lfcs; Benno Loewy, for resp’t.
   Parker, J.

The defendants, on the 1st day of July, 1891, were doing business under the firm name of the United Growers’ Company. In conformity with the terms of a written agreement between the plaintiff and the defendants, but executed by only one of the defendants, a firm note for $2,750, payable to the order of the plaintiff in four months, and bearing date July 1, 1891, was made, and delivered to him. The note not being paid at maturity, this action was brought to enforce its collection. The answer interposed by the defendants embraces three propositions: That the note was procurred by duress ; that it was procured through fraudulent representations, and that there was a failure of consideration. Briefly stated, the condition of the defendants by their pleading, and upon the trial, was that the Old Colony Distilleries Company and Atlantic Compressed Yeast Company (Connecticut corporations) were on the date of the note indebted to them for advances of over $150,000, and, in addition, they were contingently liable for over $90,000 as indorsors for the companies. Because of such fact, one of the defendants was at that time in a distant state conducting negotiations, which it was hoped would so result as to greatly benefit the corporations primarily,and these defendants, as creditors, secondarily. That the plaintiff, being aware of the indebtedness of the corporations to the defendants, and of the negotiations pending, the importance of which to the defendants he fully appreciated, secured the services of an attorney, who had for some time prior been the attorney of the defendants, to go to them, and demand an immediate payment of a pretended claim of his against such corporations, accompanying the demand with a threat that, unless the defendants should on that day pay or secure plaintiff’s claim, that he would at once proceed against the corporations by attachment, and thus interrupt and probably put an end to, the negotiations pending. The defendant Curiel, whom the attorney saw, having no knowledge of the existence of such a claim against the corporations, asked for delay sufficient to enable him to ascertain whether it was of a substantial character, and enforceable; but his request was denied, and, believing that the plaintiff would carry out the threats which he had made through the attorney, consented to make the agreement, and give the note for a claim, -which subsequent investigation proved to his satisfaction was wholly without foundation. The plaintiff, upon the trial, controverted the facts upon which defendants mainly relied to establish fraud, misrepresentation, and want of consideration, and so successfully that the jury, after a charge by the court, to which only one exception was taken, rendered a verdict in favor of plaintiff for the full amount claimed to be due.

Defendants assign as a ground of error that the court regarded as applicable to the situation presented the rule which generally obtains where a claim is made by one party, disputed by the other, and subsequently compromised—that a promise to pay, founded thereon, is supported by a good consideration, so that it can be enforced against the promisor, although he might be able to prove, if permitted, that there was nothing in fact due from him when the settlement was made. This rule defendants contend is not applicable, because plaintiff was not making a claim against them about the merits of which they must be presumed to have had knowledge, but, rather, it was a claim against corporations, of which the defendant Curiel was not an officer, and as to the merits of which he had no knowledge whatever; so that there was absent one of the elements which may usually be found in cases of which Dunham v. Griswold, 100 N. Y., 224, affords an illustration, to wit, such knowledge of the circumstances lying at the foundation of the claim made as enables the alleged debtor to determine it has such support in fact as to make a settlement of it necessary or prudent. Again, it is said that the rule cannot properly be invoked here because the purpose of the evidence was not merely to show a want of consideration for the note, but to support defendants' contention that the note was procured by fraud. They insist that, if this fact had appeared, the jury might have given it such weight, when considered in connection with the other evidence presented on their behalf, tending to show fraud, as would have induced a different finding than that made by them. Whether it would have had such a result we need not inquire, as it is sufficient for the appellants’ purpose if the fact which they sought to prove was of such a character that it was their right to have it presented to the jury for consideration. It seems to be reasonably clear that, if the fact had been clearly established that plaintiff, knowing he had no claim whatever against either of the corporations, but that, instead, he was indebted to them in a considerable sum for goods sold to him, such fact would have tended in some measure to support defendant Curiel’s testimony to the effect that he was induced to make the agreement and give the note because of his fear that plaintiff would carry his threat of at once attaching the property into execution. Such a fact would have had a tendency to explain, and therefore to some extent would have furnished support to Curiel’s testimony that to his plea of ignorance touching the merits of plaintiff’s claim, and his request for delay long enough to inquire at the general offices of the corporations whether it was meritorious, the plaintiff’s attorney interposed a prompt refusal, saying that, unless settled at once, the plaintiff could not be restrained from proceeding by attachment against the corporations. It would have tended to establish that the conduct of the plaintiff was wrongful, and would have supported, in some measure, defendants’ assertion that the making of the note was induced through fear of threatened action on the part of plaintiff, which would have jeopardized the large interests of defendants. Defendants attempted to prove this alleged fact by inquiries of the plaintiff and of the treasurer of the Connecticut corporations-by the production of the books of the corporations containing the accounts against the plaintiff, and by offering to introduce in evidence checks of one of the corporations, drawn to the order of the Empire Vinegar Works, under the name of which plaintiff conducted business. The questions put to the witnesses, and the books and checks, were excluded, the court expressly holding that there could be no investigation of the accounts between the corporations and the plaintiff. To the assertion of counsel that plaintiff had no claim, the court said: “ I can’t help that. If he did not, he asserted it and that is quite sufficient." We think this was such error as entitles the defendants to a new trial.

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

All concur.


author: Follett, J.

text:
    The People, Resp’t. v. John Eichler, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 12, 1894.)

    1. Criminal law—Blackmail.
    Under sections 658, 560 oí the Code, it is immaterial that the person making the threat's believed that the person threatened had committed the crime.
    2. Same.
    A threat to proceed criminally against a person is eqi valent within these sections, to a threat to accuse such person of a crime.
    3. Same—Verbal explanation.
    It is competent to introduce oral evidence to explain the meaning of the language used in the writing.
    Appeal from a judgment of conviction.

      lioesch & Fennel, for app’lt; Be Lancey Nicoll, Dist. Atty., (Henry B. B. Stapler, Asst. Dist. Atty., of counsel,) for resp’t.
   Follett, J.

The defendant was convicted of sending a letter threatening to accuse the complainant of a crime, for the purpose of extorting money. The principal point made in behalf of the defendant on this appeal is that evidence was excluded tending to show that defendant believed, when theletter was written, that the complainant was actually guilty of the crime, imputed to him by the defendant in the interview of April 9, which was had pursuant to the appointment contained in tlie letter. In case A.has committed a crime, which has come to the knowledge of B., and the latter, for the purpose of extorting money from the former, writes him a letter threatening to accuse him of the crime, he is guilty of a felony, under § 558 of the Penal C-ode; or, if he verbally make such a threat, he is guilty of a misdemeanor, under § 560. The fact that the person who in writing or orally makes such a threat for such a purpose believes, or even knows, that the person threatened has committed the crime of which he is threatened to be accused, does not make the act less criminal. The moral turpitude of threatening, for the purpose of obtaining money, to accuse a guilty person of the crime which he has committed, is as great as it is to threaten, for a like purpose, an innocent person of having committed a crime. The intent is the same in both cases -—to acquire money without legal right, by threatening a criminal prosecution. But threatening a guilty person for such a purpose is a greater injury to the public than to threaten an innocent one, for the reason that the object is likely to be attained, and the result is the concealment and compounding of felonies, to the injury of the state. The fact that the defendant believed in the complainant’s guilt is no defense, and is not even a mitigating fact. The defendant admitted. that he caused the letter to be written and delivered to the complainant, and so the only issue of fact was the intent with which it was written. Before the people rested, their evidence related wholly to this issue, but the defendant was permitted to show that after the letter was written he directed his cleric to make a criminal complaint before the police court, charging the complainant with the commission of the offense, and that April 17th he began a civil action for the recovery of the damages arising from the crimes chai'ged.

While the defendant was under cross-examination, the people introduced in evidence, without objection, the complaint in the civil action, and offered in evidence the bill of particulars served therein. This bill was verified by the plaintiff’s father, her guardian ad litem, was signed by the defendant as her attorney, and it was therein charged that the defendant in that action, the complainant herein, had ravished a child 5 years of age on 60 consecutive days. This bill was introduced for the purpose of discrediting the defendant’s testimony of good faith, and of his belief in the truth of the charge made. The defendant, having been permitted to show that he, as plaintiff’s attorney, brought such a civil suit, has no legal ground for complaint,' because the people were permitted to show by the complaint and bill of particulars the cause of action for which brought. Later in the trial the defendant’s clerk was called, who testified that he drafted the bill of particulars in the absence of the defendant, and from information given to him by the girl and her father. He was then asked by the defendant’s counsel if he believed the story of the girl and her father, but upon the people’s objection he was not permitted to answer. This is urged as error. It is difficult to see how the good faith of the defendant’s clerk was competent. It was not relevant to the issue, with what intent did the defendant write the letter of April 9th ? and his belief was no more important than that of the defendant.

It is urged that the defendant was erroneously convicted of a felony under § 558, instead of a misdemeanor under § 560, because the defendant, in his letter, did not threaten to accuse the complainant of a specific crime, but simply threatened “to proceed against you criminallyand that evidence of what the defendant said at the interview had pursuant to the letter was not competent to explain or to extend its meaning. We think that the threat “to proceed against you criminally’’ is equivalent to a threat to accuse the person of a crime. In People v. Gillian, 50 Hun, 35; 18 St. Rep. 681; affirmed, 115 N. Y. 643; 23 St. Rep. 996; the point was made that the writing must contain a threat to do one of the four things mentioned in the section ; but it was held that, while a threat of the character mentioned in the section must be made in the letter or writing, it was quite competent to introduce oral evidence to explain the meaning of the language used. People v. Gillian, supra, and People v. Thompson, 97 N. Y. 313, are decisive of the question last discussed. In neither of these cases did the letters threaten to accuse a person of a particular crime, but in both it was held to be competent for the people to introduce testimony showing the relations existing between the parties as explanatory of the intent of the defendants. We think no error was'committed on the trial, and that the judgment should be affirmed. All concur.


text:
    Alice A. Schell, App’lt, v. James A. Lowe, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed January 12, 1894.)

    Interpleader—Affidavit.
    An affidavit for interpleader need only show that a person, not a party to the action, makes a demand against defendant for the debt or property in suit, and that there is no collusion.
    Appeal from an order of deposit and interpleader.

      Mitchell & Mitchell, (Daniel G. Rollins and William Mitchell, of counsel,) for app’lt; Andrew Wilson and Wales F. Severance, for resp’ts.
   Parker, J.

An action was brought to recover from the defendant James Lowe $3,000 for rent of certain premises leased by him from Richard J. Clarke and Caroline Clarke, May 1, 1891. The term of the lease is five years, and the rental $3,000 per annum, payable monthly in advance. Richard J. Clarke died June 10, 1892. During the month of October following, William J. Clarke and George B. Clarke commenced an action, claiming that Richard J. Clarke died intestate, seized of the premises in question; that they were his heirs; and demanded judgment for the possession of the premises, for an accounting of the rent, and for damages. Lowe answered, denying knowledge or information sufficient to form a belief as to the rights of the respective parties, alleging the making of the lease, and his possession thereunder; offering to pay the rent into court or otherwise, as ordered. A contest was then pending over an alleged will of Richard J. Clarke, but subsequently, and on April 24, 1893, it was admitted to probate. The next day, however, proceedings for revocation of probate were instituted by William J. Clarke and George B. Clarke, which were undetermined at the time this motion was made. June 17, 1893, this plaintiff, Alice A. Schell, claiming as devisee under such will, and as assignee of Caroline' Clarke, commenced this action to recover the rent of the premises from July 1, 1892, to July 1, 1893. Thereupon this motion was made, the defendant Lowe stating in his affidavit, which formed a part of the moving papers, among other things, that he had no interest in the result of the claim of either of the parties, and that the claim of either had not been made through any collusion with him. The court determined that defendant was entitled, under § 820 of the Code of Civil Procedure, to have William J. and George B. Clarke brought in as defendants, and be discharged from all liability to either plaintiff or the Clarkes on payment into court of the sum claimed in the complaint. Appellant contends that the order thus made cannot be sustained, because the affidavit of the moving party does not allege that he is in doubt as to who has the just claim. In other words, her contentention is that it is not sufficient to put the court in possession of the facts, leaving it to determine whether they required the granting of the relief asked for; but that, in addition, the moving party must express an opinion touching the merits of the claim asserted by the respective parties. It is difficult to see how such an expression of opinion could be of aid to a court in reaching a conclusion, which must necessarily be founded upon facts. Certainly there is nothing in the section authorizing the court to interplead other parties requiring that a moving party shall give expression either to his opinions or doubts. But it is said that the discretion committed to the.court is a judicial one, and, therefore, to be exercised in accord with the rules which the courts have from time to time, by decision, established; that one of the rules, so firmly grounded as not to admit of further questioning, requires a statement on the part of the moving party to the effect that there is a real doubt in his mind, based upon facts, as to which one of the claimants has a just claim. It has been uniformly held that the remedy authorized by § 820 of the Code is a substitute for the old action of interpleader, and governed by the same principle. The facts essential to the maintenance of such a suit were that two or more persons have a claim against the complainant; that they claim the same thing; that he cannot determine without hazard to himself to which of such persons the thing belongs; that there is not collusion between him and any of the parties; and that he will bring the money or thing claimed into court. Crane v. McDonald, 118 N. Y. 648; 30 St. Rep. 98. Now, all of these facts appear. It is true that he does not state that he cannot determine without hazard to himself to which of the persons claiming it the money belongs; but, if he did, it would merely be an expression of his opinion, not a fact. The facts were fully stated and it was for the court to say whether the defendant would incur such risk, in determining which of the parties he should pay; as devolved upon it the duty of exercising the discretion committed to it in his favor.

The decision of the court at special term is fully within and authorized by Bowery Nat. Bank v. Mayor, etc., 4 St. Rep. 565; Pratt v. Myers, 18 N. Y. Supp. 466; 45 St. Rep. 63; Barnes v. Mayor, etc., 27 Hun, 236; Dreyfus v. Casey, 52 Hun, 95; 23 St. Rep. 397. It is not in conflict with Nassau Bank v. Yandes, 44 Hun, 55; 8 St. Rep. 415. It was not held in that case that a moving party should manifest by appropriate language that he had doubts as to which of the claimants urging upon him the payment of money, which he ought not to pay but once, would ultimately be successful, but that the facts upon which a moving party bases his claim for the order of interpleader should be such as to satisfy the court, that there was a reasonable doubt as to whether he would be reasonably safe in paying over the money to one of the claimants. So in Mars v. Albany Sav. Bank, 64 Hun, 424; 46 St. Rep. 464; the point of the decision was that the facts stated by the moving party were insufficient to support an order of interpleader, because they failed to establish that there was some foundation for the rival claim, or some plausibility in it. It is true that the court quoted from the opinion in Williams v. Aetna L. Ins. Co., 8 St. Rep. 567, the following:

There must always be a real doubt in the mind of the defendant, based upon facts, as to who has the just claim, before an interpleader should be permitted, or the provisions of the Code (section 820) enforced.”

So far as I have observed, the case thus quoted from is the only one in which a court has said that the failure of a party to express his opinion touching the claims of success likely to attend the efforts of either of the contending parties should be treated as a fact, to be weighed by the court in connection with actual facts, in determining whether he is entitled to the relief which the Code undertakes to provide for those meriting it. It is not unlikely that through inadvertence the word “ defendant ” was used where “ court ” was intended. Had it been so written, it would have more nearly harmonized with several other decisions. But, while it was quoted in Mars’ Case, supra, it was not necessary for the decisian in that case, because the point was not involved. It was made use of, doubtless, with the view that it tended to support the determination made that it must appear from the facts presented in support of the motion that the claim of a person sought to be substituted as a party defendant was not frivolous, but plausible, and such as to create a reasonable doubt touching its validity. Subsequently, and in the same case, Mars v. Albany Sav. Bank, 69 Hun, 398; 53 St. Rep. 144; that court reaffirmed the position thus taken. Now, the facts presented on the motion clearly brought Lowe within the protection of the rule laid down in Bank v. Yandes and Mars v. Bank, supra. Without collusion on his part he had been made a party defendant in an action wherein it was claimed that his lessor had died intestate as to these premises, by reason of which the plaintiff, as his heir at law, demanded the rents. As further evidence of the plausibility of the plaintiff’s claim the fact was made to appear that, in pursuance of the statute authorizing proceedings for revocation of probate, the plaintiffs were then contesting the validity of the will before the surrogate; and it was as devisee under that will that the plaintiff in this action claims the right to recover the rent which Lowe in his lease had promised to pay his lessor, Eichard J. Clarke. From these facts it is apparent that the court could not have held otherwise than that a reasonable doubt was presented as to which one of the claimants would ultimately be adjudged to be entitled to the rent. Indeed, it is not conceivable what other facts could have been shown, except the evidence upon which the contestants were relying to attack the validity of the alleged will. No case has gone so far as to hold that it is necessary to produce such evidence on motion for interpleader. To take such a step would be to practically deny the relief which section 820 was intended to afford, for it would burden a party seeking its aid with the annoyance and expense which the section was intended to authorize courts to shield him from. The order should be affirmed, with $10 costs and printing disbursements. All concur.


author: Eollett, J.

text:
    Richard A. Smith et al., as Trustees, etc., Resp’ts, v. Rosalie C. Campbell, Impleaded, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 12, 1894.)

    Will—Constbuction.
    In case personal property is bequeathed in trust, with direction to apply so much of the income as may be necessary to support a cestui que trust during his minority, to be added to the principal fund, with a remainder over, the title to the accumulations vest in the minor, and in case he dies during minority, they become part of his estate.
    Appeal from an interlocutory judgment.

      Leonidas Dennis, (Stephen P. Nash, of counsel,) for app’lt Rosalie Coe Campbell; John W. Pirsson, (John A. Beall and John W. Pirsson, of counsel,) for resp’t E. E. Parsons; S. P. & J. McL. Nash, for pl’ffs; Martin & Smith, for def’ts Sands and others.
   Eollett, J.

The sole question involved in this caséis whether the income which accumulated on Martha's share prior to her death goes with the principal to her sister Rosalie C. Campbell or to the administratrix of Martha’s estate, to be equally divided between herself and Rosalie 0. Campbell. It is provided by sections 3 and 4 of title 4 of chapter 4 of part 2 of" the Revised Statutes that all directions for the accumulations of the income of personal property shall be void unless such accumulation is for the benefit of one or more minors. It is urged in behalf of the appellant that in case two separate trusts are created by a testator, each for the benefit of an infant, the income from each trust may by accumulated during the minority of the cestui que trust for whose benefit it was primarily created ; and in case of the death of either infant the trnst estate set apart for him, and the accumulations thereon, may be bequeathed to the other infant. Such a construction of the statute would produce results which, we think, were not contemplated by its authors. Suppose the younger of the infants should die just after the elder reached his majority, to whom would the accumulated income go? Not to the adult cestui que trust, for that would be in violation of the statute. The accumulated income would not go to the next of kin of the deceased infant, unless it vested as it accrued ; and the accumulation would have to be held to be unbequeathed assets of the testator, which certainly would defeat the intention of most testators. Did the testator intend that the accumulated income of Martha’s share should become part of the trust estate, and go to those entitled to it after her death? Clearly not in: case she reached the age of 21 years, in which event all the accumulations were to be paid over to her. It is evident that the testator did not intend that the accumulated income from Martha’s share should be added to and become a part of the sum to be held in trust for her during her minority, but intended that it should- be kept separate, so that it could be paid over to her when she arrived at full age. It is urged that the accumulated income vested in Martha, subject to be divested in case she died before reaching 21. We find no language in the will indicative of such a purpose. The testator evidently intended to dispose of his entire estate, and we cannot believe he intended, in case the younger daughter should die during her minority, without issue, but after the elder had become of age, or in that case both should die without issue before becoming 21, that the accumulated income should be assets of his estate and undisposed of by his will. We think the testator intended that the income which accumulated on Martha’s share should vest in her absolutely as it accumulated, and be paid over to her in case she became 21 years of age, but did not intend in case of her death without issue before reaching that age, that it should be divested for the benefit of those who should be entitled to the remainder of the principal sum, for it might well be that the persons entitled to the principal could not take the accumulations.

In case personal property is bequeathed in trust, with direction to apply so much of the income as may be necessary to support a cestui que trust during life, with a direction to accumulate during the minority of the cestui que trust so much of the income as should not be necessary for the support of the beneficiary, to be added to the principal fund with a remainder over, the title to the accumulations vests in the minor, and when he reaches his majority he is entitled to the accumulations, and if he die during his minority they become part of his estate. Pray v. Hegeman, 92 N. Y. 508; Barbour v. DeForest, 95 N. Y. 13. In the first case cited the testimony directed the surplus income accruing during the minority of the cestui que trust, to be added to the trust fund, and the income of the whole to be paid to the cestui que trust for life, and after his death the whole estate was bequeathed to others. In an action brought by a creditor of the cestui que trust after he had become of age it was held that the direction to accumulate was void, and that theaceumulations belonged to the cestui que trust, and could be reached by his creditors. The direction to accumulate was held void, because the accumulations were not solely for the benefit of the infant. In the second case the testator devised and bequeathed property in trust, directing that so much of the income therefrom as should be necessary for the support of the cestui que trust during her minority should be so applied, and the remainder added to the principal, and after her majority she should receive the income from the funds so augmented during life and at her death the trust fund should be divided among her children, if any, but, if she has none, among other persons. In an action brought by the cestui que trust during her minority for the construction of the will it was held that the direction to accumulate was void, and that the accumulation vested in the cestui que trust, and that she was entitled to the whole income. Whether a testator who establishes two independent trusts for two minors, and directs the surplus income arising from each trust to be accumulated during the minority of the cestui que trust can lawfully provide that, in case of the death of either while both are minors, the survivor, shall take the accumulations, was not decided in the cases cited, nor in any case that has come to our notice; nor need we decide that question, for we think this testator did not intend such a result, and, besides, the trust fund, with the added accumulations, (assuming it was to be augmented by the accumulations,) would not necessarily go to an infant, but might to an adult sister or to adult aunts. In Harris v. Clark, 7 N. Y. 242, 257, 258, it was held that the accumulation must be for the exclusive benefit of "a minor, and that, if it may be for the benefit of an adult, the direction to accumulate is void. In Wood v. Mitcham, 92 N. Y. 375, the direction was to invest a fund, and accumulate the income until a minor granddaughter of the testator became of age, and then pay the fund and its accumulations to her, and, in case she died before becoming 21, the fund and its accumulations were to be paid to her issue, if she left any, but, if she left none, the fund and its accumulations were to be paid “to-her then living brother and sisters.” The granddaughter died a minor, without- issue, leaving a brother and two sisters of the whole blood, and two half sisters,- who were strangers to the blood of the testator. The question debated and decided in that case was whether the word “sister ” included half sisters, who yere strangers to the blood of the testator, or included only sisters of the whole blood. The validity of the direction to accumulate was not considered. The question in the case at bar was involved in the case, but was not raised. In Goebel v. Wolf, 113 N.Y. 405; 23 St. Rep. 176 ; the testator left a widow and four minor children, and directed by his will that his executors should invest one-half of the net rents from certain realty and the net profits of a business on bond and mortgage, for the benefit of his minor children, which was to be kept invested until the youngest became of age, and then to be divided equally among them, provided his widow was then dead, but, if she was not, the trust property and the accumulations were to remain undivided uqtil' her death. The widow remarried, and one of the children died,, under age, without issue. In an action brought by the executor for a construction of the will it was held that the accumulations, vested in the infants as they accrued, and that the heirs at law and next of kin of the deceased infant became entitled to one-fourth of the trust and to one-fourth of the accumulations. The position that the title to accumulations arising from personalty held in trust vests at once in a minor or minors under the statute, and cannot be. the subject of a valid remainder, finds some support in the fifth section of the title relating to accumulation of personal property, which authorizes the supreme court to “cause a suitable sum to be taken from the-moneys accumulated or directed to be accumulated, and to be applied to the support or education of such minor.” It is assumed in this section that accumulations vest in the minor. The judgment should be affirmed, with costs, payable out of the accumulations, in favor of Emeline E. Parsons, and in favor of the appellant.

All concur.


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    Staten Island Dyeing Establishment, App’lt, v. The Skinner Engine Company et al., Resp’ts

      (Supreme Court, General Term, First Department,

      Filed January 12, 1894.)

    Injunction—Action on note.
    An action against the maker of a note will not be enjoined on the ground that the original holder has not complied with the contract out of which it arose, unless such holder is insolvent.
    Appeal from an order denying a motion for an injunction.

      O. ZabrisMe, for app’lt; H. D. Swing, for resp’ts.
   Per Curiam.

The only ground upon which the equity can be called upon to intervene, under the circumstances disclosed by the papers upon this appeal, is that the plaintiff will suffer irreparable injury unless the court of equity restrains the prosecution of the action at law. This irreparable injury can be suffered only in case the original holder of the note is unable to respond to a judgment for the damages alleged to have been sustained by his failure to comply with the contract out of which the note in suit in the court of law arose. In the complaint in this action we have been unable to. find any allegation that the original holder of the note, against whom the plaintiff claims to have a cause of action for damages for breach of contract, is insolvent. If he is capable of meeting any judgment which might be obtained against him because of his alleged breach of contract, then by the payment of the note in question to its holders the plaintiff sustains no irreparable damage. Without this allegation, it seems to us, the plaintiff- fails to show any ground for equitable interference. The order should be affirmed, with $10 costs and disbursements.


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    In the Matter of the Estate of Alphonse J. Stephani, a Life Convict.

      (Supreme Court, General Term, First Department,

      Filed January 12, 1894.)

    1. Convicts—Appointment op Committee.
    An averment in the petition, in a proceeding to appoint a committee of the estate of a person sentenced to imprisonment fór life, that the petitioners are the next of kin of the convict, is insufficient.
    3. Same—Proof of Service.
    The unacknowledged and unproven admission of service of notice of the proceeding, purporting to have been signed by the convict in the presence of a witness, is not sufficient.
    3. Attorney and Client—Nonresident.
    The mere statement of an attorney that he is authorized to appear for a, non-resident will not give the court jurisdiction.
    Appeal iron an order appointing a committee for a life convict.

      Nelson S. Spencer, for app’lt; Horace Barnard, for resp’t.
   Per Curiam.

On the 10th of April, 1891, Alphonse J. Stephani was convicted of the crime of murder in the second degree, and sentenced to imprisonment for life, under which judgment he is now confined. It is alleged in the petition by which these proceedings were instituted that eight persons, whose names are stated, are the next of kin o'f the convict, and that one of them is his mother, and another is an uncle, but the relationship of the others to the convict is not stated, nor are any facts stated from which their relationship to him can be ascertained.

The statute under which the proceeding was instituted (chapter 401, Laws 1889) provides :

“Section 1. Whenever any person has been convicted and sentenced to imprisonment in this state for life, the husband, wife, relatives or next of kin or any creditor of such person may apply to the supreme court, at a special term thereof in the judicial district in,which said person resided at the time of his conviction, for the appointment of a committee of such person’s estate, both real and personal. Sec. 2. Such application shall be made upon personal notice of not less than twenty days to such convicted person and to the district attorney of the county where the conviction was had, and upon notice to such other person as would be entitled to notice of application for the probate of the will of such convicted person if he were then dead leaving a will of real and personal property, to be given in like manner as notice of application for such probate. The application shall, among other things, set forth the amount of the property of such person, and the names and residence of his heirs at law and next of kin, as near as the same is known or can be ascertained by the applicant. Upon such application and due proof of the service of the notice herein required, the court may, in its discretion, appoint a committee of the estate of such convicted person. ”

The statute requires that all persons have notice of the application who would be entitled to notice of an application to probate the will, or for letters of administration on the estate of the convict, in case of his death. The statement that six of the persons mentioned in the petition are the next of kin of the convict is a •conclusion, there being no facts stated showing how alleged relationship arises. There is no allegation in the petition showing that the persons named as next of kin answer the description of the term “ heirs at law of the convict,” and the failure to allege in the petition, or to prove on the return of the citation, who answered the description of heirs, and that all had been duly notified, was a false defect. The statute requires that the application shall be made upon personal notice of not less than 20 days to the convicted person, and it also provides that a committee cannot be appointed until after the proof of the service of the notice upon the convicted person. The only evidence of service was an admission which purports to be signed by the convict in the presence of Charles F. Durston. The admission is not acknowledged, nor the genuineness of either signature proved in any way. This was not due proof of service of the notice required to be given by the statute. There are also two of the alleged next of kin as to whom there is no proof of service. Their alleged admission of service, not being proved, cannot be read in evidence.

Nor do we think that the court should act upon a petition of a non-resident, signed only by his alleged attorney. It is true that the attorney, in the verification of the petition, states that he is authorized to sign the petition; but that is only his conclusion, the same as is his allegation in the petition as to next of kin. If the court was in possession of the evidence upon which the attorney concludes that he is authorized to appear for the nonresident, it might be that it would come to a different conclusion from the attorney. It is well settled that, by the appearance of an attorney for a non-resident, the court acquires no jurisdiction if it should appear that such appearance was unauthorized. Nordlinger v. De Mier, 54 Hun, 276; 27 St. Rep. 16; Vilas v. Plattsburgh & M. Railroad Co., 123 N. Y. 440 ; 34 St. Rep. 67. In the case at bar there is no competent evidence of the authority to appear, bis mere statement to that effect being no evidence of the fact, as above stated. We think that, before the court takes possession of the property of a prisoner, every fact necessary to confer jurisdiction should be established by common-law proof; and certainly the authority of an attorney to act for a non-resident client should be shown by proof which will not disappear by the death of the attorney, and the whole proceeding declared null and void upon a disavowal by the alleged client. The order appealed from should be reversed, with $10 costs and disbursements.


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    Edward S. Stokes, Resp’t, v. William E. D. Stokes, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 12, 1894.)

    Contract—Independent provisions.
    The non-performance of an independent provision of a contract does not affect the obligation of the other party to perform a dependent covenant thereof.
    Appeal from a judgment dismissing a cause of action set forth in a counterclaim.

      Holmes & Adams, (Artemas H. Holmes, of counsel,) for app’lt; Guggenheimer & Uhiermeyer, {EseJc Coiuen, of counsel,) for resp’t.
   Per Curiam.

On the 18th of August, 1891, the litigants entered into the following contract:

“ This agreement, made the 18th day of August, 1891, between Edward S. Stokes and W. E. D. Stokes, witnesseth: Whereas, the said W. E. D. Stokes has heretofore, with the consent of said Edward S. Stokes, purchased from Cassius H. Read 1,250 shares of his preferred stock"and 500 shares of his common stock of the Hoffman House, a corporation, and, with the knowledge and consent of said Edward S. Stokes, is about to purchase from said Read the remainder of his stock, to wit, 1,963 shares of common stock, or a portion thereof, with the intent that they may together be the owners of the whole of the stock of said corporation; whereas, the whole of the issue of five hundred thousand of bonds of said Hoffman House, secured by a mortgage to the Farmers’ Loan and Trust Company, except twenty-five thousand dollars given up and canceled, are now held and owned by said Edward S. Stokes, except a portion held and controlled by him as a pledge from said Read for money due by him to said Edward S. Stokes -7 whereas, the said Edward S. Stokes hereby declares that the indebtedness of the old firm of C. H. Read & Co. has been paid and extinguished, except the contested claim now in suit against them by John ,W. Mackay, except the claim against them by Edward S. Stokes, and except about fifteen thousand dollars for taxes which said C. H. Read & Co. are bound to pay, and further declares that there is no indebtedness of the Hoffman House, except as shown in their balance sheet of 31st of July, 1891, for $66,353.48 for current expenses : How, therefore, in consideration of the premises, and of the covenants herein by each made to the other,» and for a good and valuable consideration by each paid to the other, the said parties hereby covenant and agree as follows; First. Heither of said parties will sell any of his stock of the Hoffman House without first consulting with, and offering to sell the same to, the other ; and if a sale is made by one, the other party shall have the option to make a sale for joint account. Secondly. Said Edward S. Stokes shall have for his services as an officer of said corporation a salary not to exceed four hundred dollars a month. Ho new enterprise or business shall be undertaken, or any liability incurred, by corporation, outside the regular business of managing the present hotel, restaurant, and cafes, except with the express consent, in writing, of said W. E. D. Stokes. Thirdly. The said W. E. D. Stokes shall have two of the directorships of said corporation for himself or his nominees. Fourthly. For the consideration aforesaid, the said Edward S. Stokes guaranties the said W. E. D. Stokes that there are no other claims and debts ’against the Hoffman House, except those shown on said balance sheet of 31st of July,1891, and the current expenses, and guaranties and indemnifies him against all claims against the Hoffman House by said 0. H. Read & Co., or John W. Mackey, or said . Edward S. Stokes, or any other persons, as the creditors of said C. H. Read & Co. Fifthly. The said Edward S. Stokes further covenants and agrees not to sell or dispose of any of the bonds of the Hoffman House, owned or held by him as aforesaid, without the express consent of said W. E. D. Stokes, and also that the $35,-000 of the $50,000 of bonds received from said Reed, not yet canceled, shall be canceled, pursuant to the terms of the mortgage, 1st of July, 1892, and meantime held solely for that purpose, and no interest shall be paid thereon. Sixthly. And as security for these guaranties, for a loan of about $33,000, and for any obligation of said'Edward S. Stokes to W. E. D. Stokes, connected with said Read, and against any foreclosure of the said mortgage, said Edward 8. Stokes has deposited with said W. E. D. Stokes bonds of said Hoffman House to the par value of $150,-000. Seventhly. The said W. E. D. Stokes agrees to sell and transfer to said Edward S. Stokes one-half of the whole or of such portions of said 1,963 shares of common stock as'he may purchase from said Read, at the price he pays for said shares, with interest at six per cent., on his note at twelve months, with one renewal, if he desires, for twelve months longer, with the stock so held as collateral. Upon payment of said price, at the time above specified, the shares sold shall be delivered to said Edward S. Stokes, and he shall in the mean time receive the dividends thereon. Eighthly. For any violation of this agreement, each party shall have a claim and charge against the other on the books and accounts of the HoEman House.
“In witness whereof, we have hereto set our hands and seals on the day above written. E. S. Stokes.
“W. E. D. Stokes.”

It was conceded by the pleadings, and on the trial, that only $125,000 of the bonds mention in the sixth paragraph of the contract had been delivered to the defendant, and the only issue litigated was whether the defendant was entitled to a judgment directing the plaintiff to deliver to the defendant the remainder of the bonds. Among other findings the court found:

“(9) The only consideration for the guaranties made by the plaintiff in the contract, and for the additional security from him therein provided for, that was proved upon the trial, was the statement on the face of said contract that the defendant was about to purchase from said Cassius H. Read 1,963 shares of the Hoffman House common stock, or a portion thereof, with the intent that the plaintiff and defendant might, together, be the owmers of the whole of the stock of the said corporation, and the further agreement that the plaintiff should have the privilege of buying from the defendant one-half of the stock that the defendant should purchase from said Read, at the price paid for the same.”

Upon this finding the court based the following conclusions :

“(1) The true construction of the contract of August 18, 1891, is that the understanding of the parties was that the defendant should purchase of Read the whole of his 1,963 shares of stock, or such portion thereof as should be sufficient to make the parties to said contract the sole owners of the whole of the stock of the Hoffman House. In other words, the defendant was to buy the whole of said stock, or such portion thereof as the plaintiff should not buy. (2) The defendant not having purchased the said stock of Read within a reasonable time from such contract, and the proof being that he has been unable to purchase, by reason of the refusal of Read to sell, the contract cannot be enforced against the plaintiff.”

The court found that the contract had not been abrogated nor modified by the parties, but that it remained in full force; and, there being nothing in the evidence which aids in its construction, the intent of the parties must be derived from -the terms of the written agreement. We are unable to agree with the learned trial court that the only consideration for the guaranties made by the plaintiff, and for the security provided for in the contract, was the statement that defendant was about to purchase 1,968 shares of the Hoffman House stock, together with the privilege of the plaintiff’s taking one-half of the shares so purchased, at their cost. It is expressly provided in the sixth clause that one of the considerations for the pledge of $150,000 in bonds was the loan of about $33,000 from the defendant to the plaintiff, which was outstanding at the time of the trial. The defendant nowhere binds himself to purchase any number of shares from Bead, but it was evidently believed by both parties when the contract was made, that he would have no difficulty in making purchases at satisfactory rates to the parties to the contract. There is no provision in the contract dependant on the purchase of these shares, except the seventh clause which provides that one-half of all purchases shall be sold by de fendant to the plaintiff at their cost. These litigants knew, when the contract was entered into, that Bead could not be compelled to sell his shares; and so they wisely forebore from inserting in the contract a provision that a certain number of shares should be purchased, which- both parties knew well might be impossible of performance. It seems to us that the provisions contained in the contract in respect to the purchase of shares from Bead, and their sale to the plaintiff, are independent ones, and that-the obligation of the plaintiff to provide the securities mentioned in the sixth clause is. not affected by the failure of the defendant to do that' which was impossible. There is no evidence in the case which tends to show that the defendant did not, in good faith, attempt to purchase the shares of Bead. Indeed, the court finds that the defendant has repeatedly attempted to purchase Bead’s shares, but has been unsuccessful. There is no evidence that defendant has failed to perform any of his stipulations, and, under such a state of the evidence, we are of the opinion that the defendant made a case which entitled him to a judgment directing the plaintiff to deposit with the defendant, as collateral security for the plaintiff’s obligations mentioned in the contract, the $25,000 in Hoffman House stock, (which, it is conceded, have not been deposited,) as required by the terms of the contract. That part of the judgment appealed from should be reversed, and a new trial granted, with costs to the appellant to abide the event.