author: Yan Brunt, P. J.

text:
    In the Matter of the Estate of Amelia G. Ullman, Deceased.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1893.)

    Collateral inheritance tax—Surrogate has no power to declare PROVISIONS OF WILL VOID.
    " A surrogate has no power, in proceedings to fix the collateral inheritance tax, upon his own motion, to construe the will and declare certain provisions thereof void.
    Appeal by William B. Hooper, Joseph Hooper and Samuel Hooper, heirs of the deceased, from order of surrogate, made in collateral inheritance tax proceedings, declaring certain provisions of the will void and fixing the tax accordingly. •

      De Lagnel Berier, for app’lt;

      Horace Bussell and Jabish Holmes, Jr., for resp’ts
    ex’rs etal.\ Edgar J. Levey, for resp’t, comptroller.
   Yan Brunt, P. J.

The sole question involved upon this appeal is, whether, in proceedings to fix the collateral inheritance tax, the surrogate has power upon his own motion to declare void the provisions of a will. It is urged, upon the part of the respondents, that such power exists as an incident to his general jurisdiction over the subject of fixing such tax; that the act gives the surrogate in express terms jurisdiction to hear and determine all questions in relation to the tax; that he acts judicially, and, therefore, has, in addition to the power expressly given, all incidental powers which may be necessary to enable him to fix the tax, and, therefore, that the power conferred does include the right to construe a will, even of real estate, it being utterly impossible to fix the tax on the estate without so doing. If this contention is true, it is the most remarkable instance of the conferring of power by implication that our statute book affords. The basis of the argument seems to rest upon the fact of the inconvenience which would arise in the fixing of this tax did not .that power exist in the surrogate. We do not think that merely because of inconvenience in the administration of an unwieldly, incongruous, ill-considered and blindly drawn statute, such impli■cations should be indulged in. It certainly cannot be claimed that in this proceeding before the surrogate his adjudication upon the validity of the provisions of a will affecting real estate shall be final and conclusive. If it is not, however, cases would continually arise in which, after the surrogate had assessed the tax, holding the will to be valid or invalid, as the case might be, upon a bill filed a contrary result might be arrived at, and the real beneficiaries mulcted in a tax without the slightest authority in law. It certainly cannot be that the determination of the surrogate that the provisions of a will are valid, in these informal proceedings for the purpose of assessing this tax, makes the question as to the validity of the provisions of that will res adjudícala, for the reason that in proceedings initiated in the manner in which this proceeding was initiated the surrogate has no power to determine that legacies are free from taxation. In re Wolfe, 50 St. Rep., 115, decided December 16, 1892.

And besides, if this power resides in the surrogate of his own motion to declare provisions in a will invalid for the purpose of _ fixing the tax under these acts, then we cannot see why he may not institute an investigation for the purpose of proving that the ■execution of the will was obtained by undue influence or fraud, or that the testator had not testamentary capacity, and that, therefore, there was in reality no will, powers which are equally neces-, sary for the purpose of levying the tax as the power to construe’ and destroy.

There is another reason why an adjudication by the surrogate upon this subject cannot be final, and that is, because at any time within one year after probate of a will of personal property any person interested in the estate of the decedent may institute proceedings for the revocation of such probate; and in respect to real property this right, in a different form, exists for a much longer period of time. ’Hence, after the surrogate has assessed the tax, and the executors have paid it, subsequent proceedings may develop the fact that such tax as assessed was entirely unauthorized. The ordinary rule governing the interpretation and effect of wills is that their provisions shall be carried out by the persons intrusted therewith, until they are attackéd by some person who is interested in the property of the decedent which is affected thereby. A departure from this rule, and the giving to the surrogate, in these proceedings, power to construe wills, and determine upon their validity or invalidity, would necessarily lead to inevitable confusion and uncertainty, and the results would be far more detrimental than those which can possibly arise from the refusal to confer such authority by judicial legislation. If the law in question is defective in this particular, as it manifestly is in very many -others, it is for the legislature, not the court, to supply the -omission.

It has been claimed that the cases of In re Verplanck, 91 N. Y., 439, and Purdy v. Hayt, 92 id., 446, are authority for the contention of the respondents upon this appeal, but it is apparent upon an examination of those cases that they have no relevancy to the question at bar. All that the court decided in those cases was that upon the accounting of executors the surrogate might determine whether the personal property, or that which had become personal property, had been properly distributed, or to whom it should be paid. It is true that the construction of the will might be involved in this determination, but all that-that construction decided was the propriety of disbursements made in the administration of the estate, or to whom the fund in hand should be distributed, which is in harmony with the power expressly conferred by § 2624 of the Code upon the surrogate to construe the disposition of personal property in a will. But in the case at bar the authority of the surrogate to construe the disposition in a will of real estate is claimed, not by direct legislation, but simply by implication, an authority which has never yet been conferred upon any such officer by any legislation.

The order should be reversed, with costs.

O’Brien and Barrett, JJ., concur.


source: Caselaw Access Project

author: Barrett, J.

license: Public Domain

text:
    In the Matter of Mellen's Estate.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1893.)

    1. Executors and administrators—Accounting—Mote op executor.
    A., in the settlement of his accounts as executor of M., was charged with certain notes given by him to M, the signature to which had been erased and which he alleged were cancelled by M. before his death. It appeared that A., M., and T. were partners in business, M. being the capitalist, that the notes in question represented A.’s indebtedness to the firm and were given by him to M. in place of M.’s demand note, and that upon so doing A.’s indebtedness was charged to M. A firm employe testified that after M.'s death A. took the notes from the safe and that his “ best impression "was that the signatures were not erased. Held, sufficient evidence to-sustain a finding that the notes were chargeable to A.
    3. Same—Evidence.
    In such proceeding, charging S. as administratrix of A., with the notes given by A. to M., an interlocutory judgment in another action brought by S. personally, deciding that there was a gift by M. to A. of the notes, the action not being brought by the same parties or their privies, is properly excluded.
    Appeal by Sarah E. Mellen, as administratrix, from a decree of the surrogate of New York county settling the account of said deceased executor, Abner Mellen, Jr.

      Henry Daily, Jr., for app’lt;

      George Hill, for resp’t.
   Barrett, J.

The contest in the surrogate’s court was confined chiefly to the liability of the accountant to his father’s estate for a sum of $77,000, represented by nine promissory notes. These notes were given by the accountant to his father in exchange for a single demand note for $77,000. This demand note represented the accountant’s indebtedness to the firm of Mellen & Co., composed of himself, his father, and one Taylor; and this indebtedness was, upon the delivery of such demand note, transferred or charged to the account of Mr. Mellen, Sr., who was the capitalist of the concern. ' The present claim of the accountant is that these nine notes were subsequently discharged by Mr. Mellen, Sr., and that Mr. Mellen, Jr., was relieved from their payment; in other words, that his father forgave him the debt, and permitted the notes which represented the debt to be canceled. The referee appointed by the surrogate to hear and determine this question, as well as all other questions arising upon the settlement of the account, has found against this claim of the accountant. He finds, on the contrary, that these nine promissory notes are valid and subsisting obligations, and form part of the assets of the estate of the decedent,, and that no part of the debt represented thereby has been paid. This finding negatives the claim of a gift, and substantially holds that the cancellation of the notes was the unauthorized act of the accountant after his father’s death. It seems that these notes were placed in a sealed envelope, and that this envelope, thus sealed, was then placed in a small safe in the office of the firm. To this safe the accountant had access. After the death of Mr. Mellen, Sr., the envelope was taken out of the safe by the accountant, the seal broken, and the notes taken out of the envelope. This was done in the presence of one Ellis, a former employe of the firm, who was examined as a witness, and who testified that he then looked at the notes, and did not observe that the name of the accountant had been erased. This witness was not positive as to the particular point of erasure or non-erasure at the time when the notes were so examined. He admitted that his examination was not critical or careful, and that he could only give his best impression on the subject. But the signature with the erasure was a conspicuous feature of these notes, and the envelope when taken from the safe was apparently in the same condition as when it was placed there. The contents, too, were apparently the same. It contained other notes besides the nine in question. These others were notes of the former partner, Taylor, notes which he, too, had given to Mr. Mellen, Sr., and which the accountant subsequently included in his account The envelope also contained a memorandum or letterpress copy of all these notes, the accountant’s as well as Taylor’s, and this memorandum was in the handwriting of the accountant. These and other circumstances justified the conclusion that the nine notes in question had not been cancelled at the time when the accountant took them out of the envelope after his father’s death. The witness Ellis testified that the purpose which he and the accountant had when they found these particular notes was to make a critical examination thereof, and that it was always his impression, from the time he saw them taken out of the envelope, that the signature was not then erased; and, when he thus spoke of his impression, he undoubtedly meant that such was his best recollection. His memory was, it is true, somewhat weakened by time, but upon the whole the referee was justified, upon the entire evidence, and from all the surroundings, in the conclusion at which he arrived.

The only other question worthy of special consideration is that with regard to the exclusion of an interlocutory judgment in another action, in which a gift of these notes by Mr. Mellen, Sr., to his son, the present accountant, was found. This other action was in partition, and it was brought by Sarah E. Mellen personally. The accountant, as a possible tenant by the curtesy, was made a party defendant, but he interposed no answer, and died before the trial. The action was not revived as to him. The contestant here, Banning, as executor, was also a party defendant. It thus appears that the litigation in which the determination referred to was made was not between the parties to the present proceeding, or their privies. There was no issue there between the accountant and the executor Banning. The accountant did not appear in that action, and Banning, in his answer, set up no claim, as against him, with regard to these notes. The issue as to the notes was incidental to the main question there litigated, namely, whether the transfer to Mrs. Mellen of the accountant’s interest in certain realty was with intent to hinder, delay and defraud the estate of Mellen, Sr. The issue was between Mrs. Mellen, individually, and the executor Banning. The issue here is between the accountant and Banning. Mrs. Mellen, as the accountant’s administratrix, would not have been bound by the judgment in the partition suit if it had been against her. She would only have been bound individually. It follows that Banning is not bound, as against her, in her representative capacity. As there was no judgment between the accountant and Banning,1 and as there was no privity between the accountant and his wife, suing individually and in her own right, the interlocutory judgment was not binding in this proceeding, and it was properly rejected.

The other exceptions are of the most trivial character, and none of them were well taken. But even if some of the referee’s rulings upon questions with regard to the admission or rejection of evidence were questionable, it is clear, from the entire record, that the appellant was not prejudiced thereby, and consequently, under § 2545 of the Code of Civil Procedure, a reversal should not follow. Snyder v. Sherman, 88 N. Y., 656; Loder v. Whelpley, 111 id., 247; 19 St. Rep., 631.

As we have considered the case upon the merits, it is not necessary to examine the various objections to the procedure raised by the respondent.

The decree of the surrogate should, therefore, be affirmed, with costs to the respondent payable out of the estate.

Yan Brunt, P. J., and O’Brien, J., concur.


author: O’Brien, J.

text:
    Francena B. Partridge, Resp't, v. Dore Lyon, App'lt.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1893.)

    1. Party wall—Removal.
    Where it appears that a party wall is not ruinous or dilapidated, and affords sufficient support for the present buildings, one of the joint owners, who desires to erect a new building, has no right, against the objection of the other owner, to tear down the wall.

      2. Same.
    Where a portion of such wall was built for and used entirely by defendant, but it appears that injury would result to plaintiff from its rebuilding, such portion will not be excluded from an injunction restraining the removal and rebuilding of the wall.

      Appeal from an order continuing the injunction restraining ■defendant from interfering with a party wall, owned by the plaintiff and defendant, during the pendency of this action.

      L. Laflin Kellogg, for app’lt;

      Jeroloman & Arrowsmith, for resp’t.
   O’Brien, J.

The plaintiff and defendant are owners of adjoining premises, upon which buildings are erected, the center wall being a party wall. This wall is about ninety-nine feet in length by over sixty feet in height, and stands five inches on the plaintiff’s, and eleven inches on the defendant’s land. The plaintiff uses this wall to the extent of four stories in height and forty-five feet in depth. The defendant uses the entire wall, of about sixty-five feet in height and about ninety-nine feet in depth. The foundation of the wall goes down six feet, and rests upon rock. The defendant, who is about to erect a new building on his premises, claims that under the building laws, for the building which he desires to erect, he cannot use the present walls, the foundations being insufficient in depth, and that it is necessary, in order that the foundations may be placed to the proper depth, that he should be allowed to destroy temporarily, or to entirely remove, the present party wall, and, after excavating the rock to the necessary distance, to erect a new wall in the place and stead of the old one. To justify the taking down of the entire wall, defendant states that to take down the rear and end walls of his building, and the timber braces in between, would render the party wall unsafe for any purpose, and, therefore, that it would be mutually advantageous, and more safe, to remove the entire wall and rebuild it. We do not understand that any serious question is presented but that, for all practical purposes of the plaintiff, the present wall is sufficient to support the buildings now erected. In addition, a contract of sale having been entered into by the plaintiff, the present wall is regarded as suitable for the purpose of permitting the erection of a factory, to which use it is to be devoted by those to whom the plaintiff has contracted to sell the property. The defendant, in the exercise of what he regarded as his right, had taken down a portion of the wall, and was proceeding to remove the balance thereof, with a a view of restoring it in the shape of a new wall on a deeper foundation, when prevented by the injunction, which was made permanent, and which required that he should be restrained from interfering in any way with the party wall, “ except to repair, strengthen or rebuild it.”

Upon this appeal the defendant contends for the right to entirely remove the wall, provided it is done with a view to restoring the same. This upon the claim that, as it will be necessary to have a deeper foundation to support a new building which he is about erecting, he can, without the consent of the plaintiff, in the exercise of a right, remove temporarily the wall supporting the plaintiff’s building. We have been unable to find any authority to uphold any such claim. Where the question relates to a party wall which has become unfit to support the buildings, or has become so dilapidated or dangerous that it should be repaired or removed, then, undoubtedly, the right exists on the part of one owner of the party wall, without the consent, and even against the express opposition of his cotenant, to do whatever is necessary to put it in a safe and proper condition, even though this involved the removal of the entire wall. This principle has been recognized in several cases. Thus, in Campbell v. Mesier, 4 Johns. Ch., 334, which is a case of a party wall standing equally on two lots, and which became ruinous, and which was pulled down and rebuilt higher than it was originally by the owner on one side, against the will and in spite of the prohibition of the adjacent owner, it was held, not only that tire plaintiff had such right, in view of the condition of the wall, but that the adjacent owner was bound to contribute to the expense of the new wall, but not to the extra expense of making it higher than the old one.

. The case of Brooks v. Curtis, 50 N. Y., 639, holds that “ adjoining proprietors have an easement in the land of the other covered by a party wall, and the title of each owner is qualified by the easement to which the other is entitled. ’ This easement includes the right to increase the height of the wall, provided such increase can be made without detriment to the strength of the wall, or to the property of the adjacent owner. The party making the addition, however, does it at his peril. He must insure the safety of the work, and if injury results he is liable.” While the latter case shows the extent to which one owner of a party wall may be permitted to go in the use thereof, the former, which is referred to in the case of Brooks v. Curtis, shows that such right does not go to the extent of allowing the removal of the wall, except where the latter becomes ruinous, dangerous, or unfit or unsuitable to support the existing buildings, in which case either of the owners of the party wall would have the right to remove it for the purpose of restoring it by another; or, as stated in Partridge v. Gilbert, 15 N. Y., 601, with respect to a party wall, “ each grantee acquires an easement of supporting his building by means of the half of the wall belonging to his neighbor. This right exists so long as the wall continues to be sufficient for the purpose, and the respective buildings remain in a condition to need and enjoy the support.” In. this case one of the buildings supported became so dilapidated as to be unsafe and unfit for occupation. It was shown that the removal of the front and rear walls of such building, with the floors and beams, would occasion the destruction of the whole wall; and it was held that the owner of such building may, upon reasonable notice to the tenant of the adjoining building, lawfully take down the whole wall, and if he occupy no unnecessary time in completing the work, and use proper care and skill in its execution, is not responsible to the tenant of the adjoining building for damages. According to these authorities to which we have referred, the right to remove a party wall is given only in cases where either the party wall itself has become useless for practical purposes, or ruinous, or either building has become dilapidated, or unsafe, and the removal thereof would endanger the entire wall. In these instances the rebuilding of the wall becomes a necessity; and if the person, in removing and rebuilding the wall, proceeds with care, he is not responsible for any injury or damages that may result to the owner of the adjoining property. This view finds support in McAdam on Landlord and Tenant 2d. ed. p. 559, wherein the rule, based upon several authorities, is thus stated:

“ If the wall is intact, and capable of yielding support to one owner, it cannot be taken down by the other, even though his building has been destroyed by fire, and every part thereof, except this wall, rendered utterly useless. The wall itself must have become unsafe or useless, or it * cannot be interfered with to the injury of the other. But if the walls fall into a state of decay, so that it becomes necessary to take them down and rebuild them, either party has the right to do so, upon reasonable notice to the other, using such care and skill in the prosecution of the work as the circumstances may require. In other words, if the wall becomes ruinous, and ceases to answer the purposes of support, the easement is at an end, and each proprietor may build as he pleases upon his own land, without any obligation to accommodate the other.”

The converse of this rule finds support in Maxwell v. Bank, 3 Bosw., 146, wherein the judge writing the opinion, in speaking of the settled law as to the rights of owners of adjoining lots in a party wall, says: “ Neither can remove, or do anything to impair the stability or sufficiency of, such wall, so long, at least, as the buildings continue in a condition to subserve, in every substantial respect, the uses for which they were erected.”

It will thus be seen, by a review of the authorities, that none of them goes to the extent of upholding the appellant’s position, upon the facts here presented, of taking down and removing the entire wall. For the purposes of the plaintiff’s building, and we do not know that it is claimed but that for the purposes of the present building owned by the defendant, both of which are supported by the party wall, the latter is a sufficient support. Notwithstanding, however, the plaintiff’s objection, and the fact appearing that the wall is by no means ruinous or useless, but, on the contrary, is entirely sufficient for plaintiff’s building, the defendant insists on the right to remove the entire wall, because of his desire to erect a new building of a different kind from that which now finds support in the wall, and which new building would require a deeper foundation, to construct which would make it expensive, unless he be allowed to take down the wall, and thereafter rebuild it again. This convenience or saving of expense to defendant is not sufficient to justify a destruction of the plaintiff’s rights ; and we think, upon the facts here appearing, that so much of the injunction as prevented the defendant from removing the portion of the wall which gives support to the plaintiff’s building should be affirmed.

Appellant insists, however, that, though this be true, the injunction is too broad, and should be modified so as to permit the defendant to tear down the portion of the wall built for, and used entirely by, himself. Defendant's affidavits show that the wall is ninety-eight feet nine inches in length, and sixty-five feet in height; that of‘this the plaintiff oses a portion forty-five feet two inches in length for a four-story wall, and nineteen feet in the rear for a one-story shed. We should be inclined to adopt the view contended for by the appellant, with respect to the modification of the injunction, were it made to appear that no injury would result to the plaintiff. This, however, is not shown, but, on the contrary,, the record discloses the fact that, under the building department rules, the length of the wall could not be more than eighty feet, instead of ninety-eight feet nine inches, which is its present length; and, in addition, the same rules would require recesses for light and air to be built in connection with the defendant’s premises, and it does not appear but that such would be necessary in the portion of the wall not at present used by the plaintiff. It will thus be seen that a solid wall, such as at present exists, would not be restored, but a different kind of wall would have to be substituted. We do not think that the plaintiff, under such circumstances, is obliged to submit to a removal of the party wall which extends beyond his building, and which is at present not in use. Our conclusion upon all the facts, therefore, is, that the order was right, and should be affirmed, with costs.

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


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

text:
    John J. Zimmele, Resp't, v. The American Plaster Board Co. et al., App'lts.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1893.)

    Pleading—Contract—Fraud.
    A complaint alleged that plaintiff was induced hy fraudulent representations on the part of the defendant corporation’s officers to pay for fifty shares of its capital stock, which was not delivered but remained in defendant’s possession; and that immediately upon discovering the fraud plaintiff offered to surrender his claims upon the stock and demanded the return of the money paid. Held, that a demurrer to such complaint on the ground that it does not state facts sufficient to constitute a cause of action is frivolous.
    (Van Brunt, P. J., dissents.)
    Appeal from order adjudging the separate demurrers of the several defendants frivolous.

      F. Forbes, for app’lts;

      A. Shiland, Jr., for resp’t.
   Van Brunt,P.J.

(dissenting)—Without discussing the merits of the demurrers which were interposed to the complaint in this action it is apparent from the brief submitted upon the part of the respondent upon this appeal that the demurrers were not, in his opinion, frivolous, because he has thought it necessary to submit quite an extensive argument for the purpose of showing and convincing the court that the demurrers in question were not well taken. Such an argument might be well addressed to this court in support of an order overruling the demurrers after a regular trial thereof, but is entirely out of place if the demurrers were so manifestly bad that the court, upon the mere inspection of the pleadings, would at once recognize their insufficiency. The order should be reversed, with ten dollars costs and disbursements, and the motion denied.

O'Brien, J.

“ If any argument is required to show that the demurrer is bad, it is not frivolous.” Cook v. Warren, 88 N. Y., 39. I do not think, however, that any argument is necessary in this case, as a mere inspection of the complaint will show that the demurrer interposed by each defendant is clearly frivolous: I am in favor of affirming the order appealed from.

Van Brunt, P. J.

The fact that the demurrer is not frivolous seems to me to be completely established, in view of the fact that it takes five pages of opinion to show that it should be overruled.

Barrett, J.

I am unable to concur with the presiding justice in this case. It is, in my judgment, our duty to consider the merits of these demurrers, so far as to decide whether they are frivolous. The question should not be concluded by the mistake of the respondent’s counsel in submitting three printed pages of points in support of the order appealed from. Against his unnecessary elaboration may be set off the six printed pages in which the appellants’ counsel argue for reversal. But, apart from these irrelevant peculiarities, the question remains whether these demurrers are really frivolous. The complaint, in substance, alleges that the plaintiff was induced by fraudulent representations on the part of the defendants to pay to them $4,000 (and to give them his note for $1,000) for fifty shares of the capital stock of one of the corporations defendant. The stock was not delivered, but remained in the defendants’ possession.

Immediately upon discovering the fraud, the plaintiff offered to surrender all his claims upon the 50 shares of stock, and demanded the return of the $4,000, and of his note for $1,000. In other words, he elected to rescind the sale, and to recover what he had paid thereon. I see no difficulty about these averments, nor ground for questioning the sufficiency of the complaint. The appellants say that there is no allegation of actual authority on the part of the individual defendants to make the agreement set forth in the complaint. But the allegation is that the defendants made the agreement, and that is sufficient as .matter of pleading. And, further, it is averred that the fraudulent representations were made by the individual defendants as individuals, and also as officers, directors and agents of the corporations defendant. It is said, too, that the fraudulent representations were to induce the plaintiff to subscribe for stock, not to purchase it. I can imagine nothing more frivolous than this suggestion. The representations, as alleged, were to induce the plaintiff “ to subscribe for and to purchase” the stock. On their faith he purchased directly, without a preliminary subscription. Lastly, the appellants also say that, as the action is to recover back the purchase price upon rescission, the plaintiff was bound to restore, or offer to restore, what he received. This position is sound, but the plaintiff has, in substance, offered to restore the shares. The defendants never parted with these shares, and the plaintiff alleges that he offered to surrender all claims upon them. In other words, he told the defendants that they might keep the shares. The appellants say that he ought to have alleged that, when he made this offer, he had not parted with his claims upon the shares. This argument is as frivolous as the demurrer. The order appealed from should be affirmed, with ten dollars costs and the usual disbursements.


author: Per Curiam.

text:
    Mary Reid, Resp't, v. The Mayor, etc., of New York et al., App'lts.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1893.)

    Appeal—Case.
    An appeal will not be heard by the general term where the case does not contain the judgment-roll nor an index as required by rule 42.
    Appeal from a judgment in favor of plaintiff for the sum of . $3,300.17, and from an ord§r denying the motion for a new trial, in an action for personal injuries received while alighting from a car on the New York & Brooklyn bridge.

      William H. Clark and Almet F. Jenks (Theodore Connoly and Terence Farley, of counsel), for app’lts;

      Chas. J. Patterson, for resp’t.
   Per Curiam.

This case having been submitted, upon taking up the same for the purposes of decision it is found that in the papers no judgment roll has been printed, and the case contains no index such as is required by rule 42 of the rules of practice. The case must,, therefore, be stricken from the calendar.

Yan Brunt, P. J., O’Brien and Follett, JJ., concur.


author: Booicstaver, J.

text:
    William McMahon, Resp't, v. James Hodge, Impl'd, App'lt.

      (New York Common Pleas,

      General Term,

      Filed, February 6, 1893.)

    Mechanic’s lien'—Filing of notice.
    In an action to foreclose a mechanic’s lien, filed by a sub-contractor, the evidence tended to show that plaintiff’s work was finished prior to July 1st, while his lien was not filed until October 10th. Held, that the lien not having been filed within ninety days after completion of the work, was absolutely void.
    Appeal by the defendant, James Hodge, from a judgment of the district court of the city of New York for the tenth judicial district, rendered in favor of the plaintiff.

      Sherman Fvarts, for app’lt;

      Samuel F. Puffey, for resp’t.
   Booicstaver, J.

This action was brought in the district court to foreclose a mechanic’s lien, filed on the 10th day of October, 1891, for $100, by the plaintiff, a sub-contractor, for a balance due under an oral contract made with the principal contractor, Sehoonmaker, for the mason work, chimneys and plastering of a certain house to be erected by Sehoonmaker for Hodge, the owner. The first question to be determined upon this appeaHs whether or not the plaintiff acquired a valid mechanic’s lien on the premises. There can be no doubt from the evidence that the work was finished, as far as the plaintiff ever finished it, in the spring of 1891. The plaintiff on his direct testified that it was in June, and on his cross-examination testified that he thought it was in April or the spring. This would bring it not later than the 1st of July, while it is conceded the mechanic’s lien was not filed until the 10th of October, 1891, more than ninety days after the completion of the work. Section 4 of the mechanic’s lien act, chap. 342, Laws of 1885, requires that the notice of lien must be filed in the county clerk’s office within ninety days after the completion of the contract, or the final performance of the work. If not filed within that time the claim is absolutely void. Donaldson v. O'Connor, 1 E. D. Smith, 695; Lutz v. Ey, 3 id., 621; Hubbell v. Schreyer, 14 Abb., N. S., 284; Spencer v. Barnett, 35 N. Y., 94. While the mechanic’s lien law makes benign provision for the payment of mechanics, material men and laborers, yet it is in derogation of the common law, and its provisions must be strictly complied with in order to be of avail to them. In this case the lien was not filed in time, and therefore the complaint should have been dismissed. This question was not distinctly presented to the court below, and if it had been, the testimony upon the point might have been more clearly presented.

Having arrived at this conclusion it is unnecessary to examine the other questions raised on the appeal.

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

Bischoff, J., concurs.


author: Bookstaver, J.

text:
    James S. Manning, Resp't, v. Rudolph Maas, Appl't.

      (New York Common Pleas,

      General Term,

      Filed February 6, 1893.)

    1. Contract—Fraud—Evidence.
    In an action for the purchase price of an engine, the defendant admitted making the contract, but claimed that it was procured through plaintiff’s fraudulent representation that the approval of one M. had been obtained, without which defendant would not have entered into the contract. Held, that the exclusion of evidence to show the fraud alleged was error for which a new trial should be granted.
    3. Same.
    In an action for breach of contract it is error for the court to ask the plaintiff how much he has suffered by the refusal to complete the contract, as this calls for the conclusion of the witness on a matter which the court is to determine for itself after all the facts have been given.
    _ Appeal from a judgment entered in the district court of the city of Hew York for the second judicial district.

      A. Stern, for app’lt;

      P. Q. & F. L. Eckerson, for resp’t.
   Bookstaver, J.

This action is brought for a breach of contract on the part of the defendant in refusing to carry out a contract for the purchase of an Otto gas engine. Defendant admitted the making of the contract, but claimed that the same was procured by fraud, in that the plaintiff fraudulently represented that the approval of one McCallum had been obtained, without which approval the defendant would not have entered into the contract. Upon the trial various questions were asked by the defendant tending to show this defense, but the same were objected to by-plaintiff’s counsel, and the testimony thereunder was excluded, to which the defendant excepted. Fraud avoids all contracts, and when the same is properly pleaded evidence thereof should be admitted, and the exclusion of such evidence in this case was error for which a new trial should be granted. Nor was that error cured by the court subsequently admitting a portion of this evidence, but not the whole. The fact that the court permitted the witness Bailey, plaintiff’s agent, to contradict the defendant in regard to conversations with him, does not cure the error in refusing to permit the defendant to testify in regard to those matters, but rather aggravates it. But aside from this, it was fatal error in the court below to propound to the plaintiff this question: “How much have you suffered by the refusal?” meaning the refusal to complete the contract, which was objected and excepted to by the defendant. It called for the conclusion of the witness on a matter the court was to determine for itself after all the facts in the case had been given. The mere conclusion of the plaintiff as to his loss of profits, without stating the cost to him of the engine, or the value of the work, labor and services alleged to have been rendered by him in putting it up, was not sufficient evidence on which the court could properly base an estimate of damages.

Having arrived at this conclusion, it is unnecessary for us to consider, at this time, the proper rule of damages in such case, as on a new trial it may more clearly appear that the engine sold was a patented article, and could be procured of the plaintiff only, or that it was sold openly in the market, and had a value determined by supply and demand. A different rule of damages being applicable in the latter case.

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

Bischofe and Pryor, JJ., concur.


text:
    Alexander Wehle, Resp't, v. Benno Loewy, App'lt.

      (New York Common Pleas,

      General Term,

      Filed February 6, 1893.)

    1. Pleading—Scandalous matter.
    The granting or refusal of a motion to strike out as immaterial and irrelevant is always in the discretion of the court, and the same is true as regards scandalous matter, especially where it cannot, hy itself, constitute a defense to the action.'
    2. Same.
    It is no defense to a motion to strike out matter as scandalous that no party to the action is aggrieved, as the Code expressly provides that “ anj person aggrieved ” by the irrelevant or scandalous matter may have it stricken out on motion.
    Appeal from an order made at special term striking out a portion of the answer as irrelevant, immaterial and scandalous.

      Benno Loewy, in person for app'lt;

      Charles Wehle, for resp’t
   Bookstaver, J.

The complaint alleges that'the plaintiff’s assignor is an attorney and counsellor-at-law, and. then sets forth a special contract made between the defendant and the assignor in regard to certain fees, allowances, etc., to be made and earned in the surrogate's court for which the defendant received $2,500, and the plaintiff claims to be entitled to one-third of the amount under-such agreement. The answer admits the receipt of the money and denies all other allegations of the complaint; and for a second defense sets up that plaintiff’s assignor was a clerk in defendant’s employment at and previous and after the times mentioned in the complaint, and in receipt from the defendant of a weekly salary which was duly paid to and received by the assignor during every week he was employed by the defendant; together with other matters in which is included the portion of the answer which was. stricken out by the order appealed from. A mere inspection of the portion stricken out shows that it is not relevant or material to the defense set up, which is payment; besides, such an inspection will disclose the fact that the part stricken out is highly scandalous in charging a crime upon which no claim of damages is-predicated and which is immaterial in so far as it constitutes no defense to the cause of action set forth in the complaint

The granting or refusal of a motion to strike out as immaterial and irrelevant is always within the discretion of the court, Section 545 of the Code ; Town of Essex v. N. Y. & Can. R. R. Co., 8 Hun, 361; St. John v. Griffith, 1 Abb., 39; Homan v. Byrne, 14 Weekly Dig., 175; Williams v. Folsom, 57 Hun, 128; 32 St. Rep., 455, and the same we apprehend is true in regard to scandalous matter, especially, as in this case, where it cannot by itself constitute a defense to the action.

Moreover, it is apparent that the most it could do would be to. prejudice the jury against the assignor if called as a witness in this action; and we do not see how the complaint could be established without calling him as a witness, when the facts alleged in the part stricken out, if true, can be brought out upon cross-examination, and we think it will place him in a sufficiently unfavorable light to appear as witness to the claim, assignor of the claim and attorney for the claimant at the same time. We cannot say that the discretion exercised by the judge granting the order was improper, under the circumstances of this case.

But it is contended by appellant that no party to the action is aggrieved by the matter stricken out, as Mr. Goldzier, the assign- or, is not a party to the action, and, therefore, the motion should not have been granted. But it is no defense to such a motion that no party to the action is aggrieved, for the Code expressly provides that “ any person aggrieved ” by the irrelevant or scandalous matter may have it stricken out on motion, and in this, case it is made by the plaintiff’s attorney, who is the person injured.

The order should, therefore, be affirmed, with ten dollars costs1, and disbursements.

Bischoff and Pryor, JJ., concur.


author: Bischoff, J.

text:
    Newton Squire, Resp't, v. Peter H. McDonald et al., App'lts.

      (New York Common Pleas,

      General Term,

      Filed February 6, 1893.)

    Abbest—UroBBTAKEsra.
    An order vacating an order of arrest on the merits is a final decision ' within the meaning of an undertaking providing that the damages and costs incurred by reason of the arrest shall be paid “ if the defendant recovers judgment or if it is finally decided that the plaintiff was not entitled to the order of arrest,” and an action may he maintained on such undertaking after the expiration of the time limited for appeal from the order of vacation, although the action in which the order of arrest was issued remains undetermined, and although the cause for arrest was the same as the cause of action.
    Appeal from a judgment for plaintiff entered upon a- verdict directed by the court. Action to recover upon an undertaking given to obtain an order of arrest pursuant to the provisions of § 559 of the Code of Civil Procedure.

      William H. Wilder, for resp’t;

      T. D. Kenneson, for app’lts.
   Bischoff, J.

Plaintiff sued upon an undertaking given to obtain an order for his arrest in an action by one Homer Lee, pending in the supreme court, to recover damages for the alleged conversion of personal property, which was to the effect required by § 559 of the Code of Civil Procedure, that “ the plaintiff will pay all costs which may be awarded to the defendant, and all damages which he may sustain by reason of the arrest,” not exceeding the amount specified, “if the defendant recovers judgment, or if it is finally decided that the plaintiff was not entitled to the order of arrest.” At the time of the commencement of this action the supreme court action remained undetermined, but the order of arrest therein had, on motion, been duly vacated and set aside on the merits, and an order to that effect entered, which, by expiration of the time limited for appeal therefrom, had become final. Appellants’ only contention against the validity of the judgment appealed from is that the action on the undertaking was prematurely brought because no final decision had been had that plaintiff in the supreme court action was not entitled to the order of arrest therein invoked, and that his right to the order of arrest may yet be determined if the last mentioned action should eventuate in a judgment in plaintiff’s favor, since the cause for arrest arises under § 550 of the Code of Civil Procedure, and is identical with the cause of action.

This contention, however, disregards the clear import of the language of the undertaking. It is not that the plaintiff therein named will pay if it is finally decided that he was not entitled to an order of arrest, but that he will pay if it is finally decided that he was not entitled to the order of arrest. Which order of arrest? Plainly, the one invoked, and with immediate reference to which the undertaking was given. This was vacated on the merits, and cannot be reinstated by an eventual judgment for plaintiff in the same action, though such a result would determine that plaintiff was entitled to an order of arrest. There can, of necessity, therefore, be no'distinction concerning the finality of the decision that plaintiff was not entitled to the order of arrest, between orders vacating an order of arrest on the merits, the time to appeal from which has lapsed, because in the one instance the cause for arrest was collateral to the cause of action, and in the other it was identical therewith. Code of Civil Procedure, §§ 549, 550.

Hor has the question under discussion been determined at variance with the views above expressed in the cases cited on appellants’ behalf. Schuyler v. Englert, 10 Daly, 463, and Rothwell v. Paine, 9 Civ. Pro., 128. In neither was the question before the court for review. Both were apparently cases wherein the cause for arrest was collateral to the cause of action, the former actually and the latter constructively so; and whatever the court may have said in its opinions concerning cases wherein the cause for arrest and the cause of action were identical was dicta merely, and without the force of decision.

The judgment appealed from should be affirmed, with costs.

Daly, Ch. J., and Peyob, J., concur.


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    The Eaves Costume Co., Resp't, v. Thomas H. Pratt, App'lt.

      (New York Common Pleas,

      General Term,

      Filed February 6, 1893.)

    Attachment—Residence.
    Defendant's domicil of origin was in Missouri. While an infant the family removed to Connecticut for the purpose of completing the sons’ education. In 1890, he came to this city, opened an office, and after boarding at different places for about two years, hired apartments for a few months, when he abandoned them, stored his furniture and left the state for his summer vacation. On motion to vacate an attachment issued during this absence, Held, that these facts showed that he was not a resident of this state; that without satisfactory evidence that defendant at the time the attachment issued had a fixed place of abode within the state, his residence must be presumed to be at the place of his domicil.
    Appeal from an order at special term denying defendant’s motion to vacate an attachment against his property, which was issued on the ground of his non-residence, pursuant to the provisions of subdivision 2, § 636, Code Civil Procedure.

      Charles H. Lelhnan, Jr, for resp’t;

      Geo. Carlton Comstock, for app’lt.
   Bischoff, J.

A person may be domiciled in one state and resident of another. , Frost et al. v. Brisbin, 19 Wend., 11. His domicil is the place to which he intends eventually to return and there to remain, Matter of Thompson, 1 Wend., 43, while his residence comprehends no more than a fixed abode for the time being, as contradistinguished from a place of temporary sojourn. Matter of Wrigley, 8 Wend., 134.

On the hearing of the motion to vacate the attachment, it appeared from the affidavit of Elizabeth H. Pratt, which was submitted for the purposes of the motion on defendant’s behalf, that at all times prior to the removal of her family, which consisted of herself and two sons, one of them the defendant, to Hew Haven, Connecticut, their domicil was in St. Louis, Missouri; and that about the year 1887 the removal to New Haven was effected for no other purpose than to complete the sons’ education. The St. Louis domicil was, therefore, not abandoned, and as at the time of the removal to New Haven defendant was an infant, his domicil was that of his mother. Lamar v. Micou, 112 U. S., 452.

St. Louis having been shown to be defendant’s domicil of origin, its continuance, both during his minority and thereafter, must be presumed until it satisfactorily appears that he has established a domicil of choice. Lawson’s Eights, Eemedies & Practice, vol. 7, p. 6067, § 8848. No attempt was made by defendant to prove a domicil of choice, but instead he endeavored to show that when the attachment was issued he was not a resident of New Haven, but of New York. Plaintiff’s right to the attachment, however, was not dependent upon the fact of defendant’s residence in New Haven, but upon the fact of his non-residence within the state of New York.

In June, 1890, when defendant was but twenty years of age, he came to the city of New York to venture in the business of a theatrical manager. For this purpose he established an office, and after having at intervals lived at boarding houses and hotels, about February, 1892, rented apartments at 250 West Thirty-ninth street, in said city, which he in turn abandoned shortly before July 15th of the same year, when, as he says himself, he stored his furniture and went to Old Orchard, Maine, there to spend his summer vacation. On July 28th, concededly, while defendant was without the state, the attachment was issued.

The facts narrated show that at the time of issuing the attachment defendant had no fixed abode within, and that he was, therefore, at that time not a resident of the state of New York. Assuming that he had a general intention of future return, that fact alone did not constitute a continuance of his abode, Wood v. Hamilton, 14 Daly, 41; 1 St. Rep., 779; Weitkamp v. Loehr, 53 N. Y. Supr. Ct., 83; nor was defendant’s own declaration of his intention to renew his abode at a stated time conclusive. Dietlin v. Egan, 46 St. Rep., 762. His domicil of origin was in St. Louis. He had not acquired a domicil of choice. Actual abode, for business accommodation only, did not effect a change of domicil. Matter of Wrigley, 8 Wend., 134, 139. It could only be acquired by concurrence of actual residence and intention permanently to remain. 5 Am. & Eng. Ency. of Law, 862. And without satisfactory evidence that defendant, at the time when the attachment was issued, had a fixed place of abode within the state, his residence must be presumed to be at the place of his domicil.

The order appealed from should be affirmed, with costs.

Bookstaver and Pryor, JJ., concur.


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    Joseph H. Gray, Jr., App'lt, v. The Journal of Finance Publishing Co., Resp't.

      (New York Common Pleas,

      General Term,

      Filed February 6, 1893.)

    1. Contract—Breach—Publication op legal notices—Parties.
    An action against a newspaper to recover damages sustained by its failure to properly publish a citation is properly brought in the name of the person who made the contract for such publication with it, although he was an attorney, and was employed as such in the proceeding in which the citation was issued.
    3. Same.
    A failure of the paper to publish the citation during the third week is a breach of its contract, and a subsequent publication once a week for six weeks could not be considered a compliance therewith.
    Appeal from a judgment of the district court of the city of Hew York for the second judicial district.

      Thomas F. Murtha, for app’lt;

      David May, for resp’fc
   Bookstaver, J.

The plaintiff, an attorney at law, was employed by the executors of the estate of Clinton Gilbert, deceased, to take proceedings in the surrogate’s court for the probate of the will of said Gilbert. In order to obtain jurisdiction over the many parties interested in the probate, it became necessary to publish a citation against a tiumber of non-resident .next of kin. To this end an order was made by the surrogate of the county of Hew York, on or about December 14, 1891, directing the service of the citation upon such non-resident parties by publication in the New York Law Journal and in the Journal of Finance, the defendant herein, once a week for six successive weeks, commencing on December 18, 1891. The defendant published the citation on December 18th, and again on December 24th, but failed to publish it during the succeeding and third week of the period, as directed by the surrogate’s order. The results of this failure were that the services by publication became invalid both as to the defendant’s newspaper and as to the Law Journal, and hence it was necessary to prepare a petition for a supplemental citation and obtain an order from the surrogate vacating the former order and directing a new publication of the citation in the Law Journal and another newspaper, thus adding the expense of an entirely new publication to the expenses already incurred. Plaintiff brought this action to recover these disbursements, and also for his services and labor rendered necessary by defendant’s breach of contract. Upon the trial three defenses were interposed: (1) That the plaintiff was not the real party in interest, and had no right to recover any sum from the defendant; (2) that he was not acting for and on his own behalf, but as attorney at law and the agent of the proponents of the will of Clinton Gilbert, deceased; and (3) that the defendant complied with its agreement with plaintiff, and published the citation for a period of six successive weeks, commencing on January 4, 1892. We think none of these grounds was a sufficient defense to the action.

The plaintiff made a contract with the defendant, paid it the contract price, and in this matter the defendant dealt with the plaintiff alone and no one else. The answer admits that it made the contract with him. It received his money and made out its receipt for the advertising to the plaintiff; it knew of no one in the transaction except the plaintiff, and there was no allegation in •the answer, nor was there any proof that it knew that the plaintiff was acting as agent or attorney or that any one at all was behind him. Besides, at that time no executor had been appointed for the estate, and the advertising was a part of the proceedings in order to the probate of the will. In so far, then, as the defendant was concerned, the plaintiff was the principal, or, at any rate, an agent with an undisclosed principal. The rule of law is well settled that where an agent, in his own name, without disclosing his principal, makes a contract, either the agent or the principal may sue upon it. Story’s Agency, § 396; Ludwig v. Gillespie, 105 N. Y., 653; 7 St. Rep., 527; Considerant v. Brisbane, 22 N. Y., 389; Pitney v. Insurance Co., 65 id., 6; Shaefer v. Henkel, 75 id., 378; Knapp v. Simon, 96 id., 284; Arosema v. Hinckley, 43 Supr. Ct., 43; Bogart v. O'Regan, 1 E. D. Smith, 591; Davis v. Regnolds, 5 Hun, 651. Section 449 of the Code of Civil Procedure provides: “ Every action must be prosecuted in the name of the real party in interest, * * * a trustee of an express trust * * * may sue without joining with him the person for whose benefit the action is brought. A person with whom or for whom or in whose name a contract is made for the benefit of another, is a trustee of an express trust within the meaning of this section.’" The fact that the plaintiff was a lawyer has no bearing upon the determination of the question under consideration. In contracts made by attorneys, acting as such, they are capable of suing and are liable to be sued in the same manner as other agents or factors. Story’s Eq. Juris., § 313; Howell v. Baker, 4 Johns. Ch., 118; Brock v. Barnes, 40 Barb., 521. In the latter case it was said: “The relation existing between them, attorney and client, was one of confidence. If not that of attorney and client, it was that of principal and agent, and in either case the principles of law applicable to the case are the same.”

The courts have, in many instances, supported this rule of law. An attorney is liable for sheriff's fees. Adams v. Hopkins, 5 Johns., 252; Ousterhout v. Day, 9 id., 114; Reilly v. Tullis, 10 Daly, 283. So, also, he is liable for referee’s fees, Dinkel v. Wehle, 11 Abb. N. C., 124, and for fees of counsel engaged to conduct litigation. Mac Niffe v. Luddington, 13 Abb. N. C., 407. Also, for printing legal notices in newspaper. Press Publishing Co. v. Baker, 13 N. Y. Supp., 822; 36 St. Rep., 879. The underlying principle in all these cases where attorneys have been held, is that their liability is based on the fact of the contract being made by them, and without the disclosure to, or knowledge by the plaintiffs of the client’s existence. In the case at bar the plaintiff was not known to be acting for any one but himself; he did not even disclose his profession of attorney, and the defendant treated with him on the basis of his own individual responsibility, and made out its bill and receipt to him as an individual acting solely for himself.

If ‘the executors of Gilbert deceased, should sue, the defendant could set up a double defense, first, that it never knew or dealt with the executors; and, second, that as matter of fact there were no executors in existence at the time of the making of this contract, since the executors were appointedlong after the publication of the citation. On the other hand, no injustice or hardship can accrue to the defendant if the plaintiff succeeds in this action, because a payment to an agent or attorney will bind his principal, and the defendant would be fully protected by a judgment in plaintiff’s favor against any suit by the executors. Ludwig v. Gillespie, supra.

The failure of the defendant to publish the citation in the third week was a breach of its contract and vitiated the entire publication and service. The surrogate’s order of publication directed that the service of the citation should be made by publishing the same once a week for six successive weeks, and the defendant undertook and agreed with the plaintiff to publish the citation in this manner. The answer admits this, and the uncontradicted testimony shows it.

The rule for the publication of a citation is the same as that for the publication of a summons in an action. Code of Civil Procedure, §§ 440, 2524; In re Koch's Will, 12 N. Y. Supp., 94. Where it is sought to obtain jurisdiction over non-resident parties by making service of a summons by publication, the requirements of the Code in respect thereto must' be strictly complied with. Kendall v. Washburn, 14 How. Pr., 380; Bunce v. Reed, 16 Barb., 347-350; Olcott v. Robinson, 20 id., 148. The surrogate directed the citation to be published once a week for six successive weeks. This has been held to mean a distinct publication in each of the six weeks succeeding the first. Wood v. Knapp, 100 N. Y., 109; Market Nat. Bk. v. Pacific Bk., 89 id., 397. In the latter case, the court said: “ It, the Code, does not provide for a publication six times within six weeks, but for a time not less than once a week for six successive weeks.” See, also, Steinle v. Bell, 12 Abb., N. S., 171; 2 Bouv. L. D., 647.

The publication commencing on the 4th of January, 1892, even if made as claimed by the defendant, did not comply with the terms of the contract. It is clear that such a publication could not have been completed before the return day of the citation, and, therefore, was of no legal effect.

We, therefore, think the court erred in dismissing the complaint, and that the judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Bischoff, J,, concurs.


text:
    The Wheeler & Wilson Manufacturing Co., Resp't, v. Esther Jacobs, App'lt.

      (New York Common Pleas,

      General Term,

      Filed February 6, 1893.)

    1. Replevin—Infants.
    An action of replevin on the ground of wrongful detention may be' maintained against an infant.
    3. Same—Conditional sale.
    Plaintiff sold a machine to defendant on the instalment plan, title to remain in plaintiff until it was paid for in full; and in case of failure to pay instalments, and plaintiff being compelled to take back the property, it was agreed that the sums paid were to be regarded as money paid for the use of the machine. In replevin for the machine after default, Held, that defendant was not entitled to repayment of the sums paid; that the conditional bill of sale must be regarded as an executed contract so far as payments actually made were concerned, and infants cannot recover on such contracts.
    Appeal from a judgment of the district court of the city of Hew York for the third judicial district

      Leopold Leo, for app’lt;

      John Holden, for resp’t
   Bookstaver, J.

This is a replevin action brought to recover the possession of one of plaintiff’s sewing machines which defendant obtained on a contract or conditional bill of sale in the usual form, by the terms of which the title to the machine remained in the plaintiffs until it was paid for in full, and in event of the defendant not paying the instalments agreed upon and the plaintiffs were compelled to take back the property, the instalments actually paid were to be regarded as money paid for the use of the machine. The defense interposed was infancy and a counterclaim for the amount paid on the property. There was no dispute but that default had been made in the payment of the instalments. But it was contended that the action was prematurely brought because the defendant was an infant and no action could be maintained against her. This would be true if the action were founded upon a contract, but replevin never is. The basis of this action is a tort, and it is stated in the affidavit for the immediate claim and delivery of the property, that the defendant wrongfully -detained the same. This is abundantly supported by the evidence in the case, for it appears that when the marshal at the plaintiff’s request sought to obtain possession of the machine under the claim and delivery papers, the defendant and her mother not only refused to give up the machine but endeavored to secrete the same and claimed that it had been sold. This, if true, would have been a conversion of the property and a wrong against the plaintiff. Infants are liable for their torts and may even be indicted for the same. “If an infant is old and cunning enough,” says Lord Chancellor Cowper, “ to contrive and carry out a fraud, he ought to make satisfaction for it.” 2 Eq. Ca. Ab., 515; Badger v. Phinney, 15 Mass., 359; Homer v. Thwing, 3 Pick., 492; Cary v. Hotailing, 1 Hill, 311; Olmsted v. Hotailing, id., 317; People v. Kendall, 25 Wend., 399; Wallace v. Morss, 5 Hill, 392; Rice v. Boyer, 58 Am., 53; Schunemann v. Paradise, 46 How. Pr., 426; Eckstein v. Frank, 1 Daly, 334; Cooley on Torts, 120. Where the infant pleads his minority to escape payment of the purchase price the seller may rescind the sale and replevin the goods. Badger v. Phinney, supra.

Although an infant must be personally served with the summons, yet before a valid judgment can be obtained against her a guardian ad litem must be appointed ; that was regularly done in this case.

Appellant’s counsel contends that even if the action can be maintained, she ought to have been allowed the amount she paid upon the contract of purchase. But this we think is not sound, as it was expressly agreed it should be regarded, in case of default, as tlie value of the use of the property during the time she had it; and we cannot say that that was at all unreasonable, because it is manifest that the use of the machine must have greatly deteriorated its value. Besides the conditional bill of sale must be regarded as an executed contract as far as the payments actually made were concerned, and infants cannot recover on such contracts. Crummey v. Mills, 40 Hun, 370. The case of Green v. Green, 69 N. Y., 556, was peculiar, and the court expressly states that it was to apply only to the facts in that case. Infants cannot return property without paying actual damage to it; the vendor must be put in statu quo. Bartholomew v. Finnemore, 17 Barb., 428; Gray v. Lessington, 2 Bosw., 257. In this case, however, the defendant did not attempt to return it, but, on the other hand, sought to prevent the plaintiffs from obtaining possession of it.

The judgment should be affirmed, with costs.

Bischoff, J., concurs.


author: MERWitf, J.

text:
    Wallace S. Hathaway et al., App'lts, v. Jere L. Jenks, Resp't.

      (Supreme Court, General Term, Fourth Department,

      Filed February 23, 1893.)

    Trespass—Highway commissioner—Encroachments.
    Ií a highway commissioner, in the discharge of his official duty,removes without unnecessary damage an encroachment on the highway, such as a fence, after notice, though informal, to the owner, he should not be deemed a trespasser.
    Appeal from a judgment entered in Otsego county, on the 21st February, 1891, upon a verdict in favor of the defendant at the Otsego circuit; also from an order of the Owego special term, made the 15th April, 1892, and entered in Otsego county on 26th May, 1892, denying a motion for a new trial made by the plaintiffs upon a case and exceptions.
    The action is in trespass. It was commenced in justice’s court and carne into this court on a plea of title. The plaintiffs in their complaint allege that they are the owners, and in possession of a farm, situate in the town of Otego, and bounded on the easterly side by a highway known as the west branch of the Otsdawa, and that upon their line on that side they have for more than twenty years maintained upon their own premises a fence necessary for their farm purposes; that on or about September 25, 1889, the defendant wrongfully entered upon their premises and tore down the fence for about fifty rods along said easterly line to their great damage. The defendant interposed a general denial, and also alleged that the fence was upon the highway, and was an unlawful and wrongful encroachment and obstruction, and was so maintained wilfully by the plaintiffs ; that the defendant was the sole highway commissioner of the town, and as such duly ordered the removal of the fence from the bounds of the highway and duly served the plaintiffs with a copy of the order and notice, requiring the plaintiffs to remove the fence within the time required by law; that, thereupon, after the lapse of sixty days, the plaintiffs having neglected to move the fence, the defendant did so, as he lawfully might. It was also alleged in the answer that the title to the lands upon which the alleged wrong was committed was not in the plaintiffs, but in one Sheldon subject to the highway.
    In the appeal papers there is no certificate that the case contains all the evidence.

      A. JP. Barber, for app’lts;

      Tilley B lakely, for resp’t.
   MERWitf, J.

The highway in question was laid out in 1887, and the main question litigated at the trial was whether the fence of the plaintiffs was within its bounds. The court charged the jury that if any part of the fence that was removed was not within the boundaries of the highway as laid out, the plaintiffs could recover. The verdict of the jury in favor of the defendant was, therefore, in effect a finding that all of the fence was within the boundaries and was an encroachment upon the highway. The evidence is sufficient to support the verdict.

But the plaintiffs claim that although the fence was an encroachment and the defendant was the highway commissioner, still he had no right to remove the fence because the notice which he served upon the plaintiffs was defective in not fully complying with the provisions of the statute. 2 R. S., 8th. ed., 1388, § 103.

A copy of the order for removal was served with the notice and referred to therein as being annexed. In the order, the original survey was recited and the width of the road as intended to be and as laid out was given, and it then stated that said highway is encroached upon, on the westerly side thereof, by the fence of Wallace Hathaway and of Berosus Hathaway as follows, to wit: At

a point west of, and opposite of, the southwest corner of a lot of land formerly known as the Lent lot, now owned by Timothy Sheldon, to the extent of one and one half rods; at a point twenty rods north of the point first above mentioned, to the extent of one rod; at a point thirty rods south of the point first above mentioned, to the extent of one rod.”

In the notice the encroachment was described in the same terms and the plaintiffs were required to remove it within sixty days. The claim of the plaintiffs is that the provision of the statute that requires the order and notice to specify “ the extent of the obstruction or encroachment, and the place or places where the same shall be,” was not complied with.

The plaintiffs did not deny the encroachment, as they had a right to do under the statute, § 105, and made no objection then to the sufficiency of the description in the notice or order. These were served on plaintiffs on 27th May, 1889. The defeñdant waited until September 15th following and then removed the fence to the edge of the highway.

In James v. Sammis, 10 N. Y. Supp., 143-5; 31 St. Rep., 192, which was an action for trespass like the present one, objections seem to have been made by the plaintiff to the order and notice that they did not sufficiently state the extent and place of encroachment. The court says that the plaintiff could make no attack upon any of those preceedings; that they were valid and effectual until set aside on review. The case was affirmed in the court of appeals, but upon other grounds. 132 N. Y., 239; 43 St. Rep., 910.

In the present case the plaintiffs apparently made no effort to comply with the order. It might have been more definite, but the plaintiffs were not misled by it. The real issue between the parties was over the location of the highway as laid out. Very evidently the plaintiffs knew that, if the line was as claimed by the commissioner, the fence was an encroachment.

But assume the notice was not sufficiently definite, is the defendant for that reason precluded from taking advantage of the fact, as found by the jury, that all of the fence was an encroachment ? In Van Wyck v. Lent, 33 Hun, 301, 304, it is said that “ the highways of the state are made for and devoted to public travel, and the public have the right to their use in their entirety, and when obstructions to public travel are found within their bounds, the commissioners of highways are clothed with power to remove them without waiting for the slow process of law, even though travel be not absolutely and entirely prevented.” This view finds support in other cases. Cook v. Harris, 61 N. Y., 448; Wetmore v. Tracy, 14 Wend., 250. In Davis v. Mayor, 14 N. Y., 524, it is said by Judge Denio, that “ any permanent or habitual obstruction in a public street or highway is an indictable nuisance although there be room enough left for carriages to pass." See Wood on Nuisances, § 252, and cases cited. In Harrower v. Ritson, 37 Barb., 301, this principle was conceded as applicable to encroachments by fences, but it was held that an .individual had no right to abate such a nuisance unless it interfered with the use of the road by the public. In Griffith v. McCullum, 46 Barb., 561, it seems to have been held that unless an encroachment upon a highway by fences is such as to constitute a private nuisance, as well as a public one, an individual, even though he be commissioner of highways, is not justifiable in removing the fence, and that the remedy furnished by the statute in such cases is exclusive. The statute, however, does not make it exclusive, and the view taken in the Van Wyck case seems to me to be preferable.

The commissioner of highways has the care and superintendence of the highways, and in that regard represents the public. His jurisdiction in the performance of his duty extended over the whole width of the highway as established. Driggs v. Phillips, 103 N. Y., 77, 83; 3 St. Rep., 69. If in the discharge of his official duty he removes without unnecessary damage an encroachment like the present, after notice, though informal, to the owner, he should not be deemed a trespasser. It would follow that this action is well defended.

It is further claimed by the plaintiffs that the court erred in giving, at the close of the trial, a certificate that the title to real estate came in question upon the trial.

The trial closed upon January 20, 1891. The certificate is dated February 6, 1891, and it does not appear whether or not it was given upon a hearing of the parties upon the subject. Ho motion on the subject appears to have been afterwards made. The certificate is not referred to in the notice of appeal, and is, therefore, not reviewable here, if it is to be deemed an intermediate order. Code, § 1801. If the certificate was granted upon a hearing, very likely an appeal directly from it would lie. If the certificate was given without a hearing, a motion might have been made to set it aside and an appeal then taken from the order made on such motion. Hawkins v. Peterson, 9 Weekly Dig., 408; Barney v. Keith, 6 Wend., 555; Lillis v. O'Conner, 8 Hun, 282. As the case stands, the question whether the certificate was properly given is not before us.

‘The judgment and order appealed from should be affirmed.

Judgment and order affirmed, with costs.

Hardin, P. J., and Martin, J, concur.


author: Merwin, J.

text:
    Harriet A. Francisco, App'lt, v. Charles A. Smith, Resp't.

      (Supreme Court, General Term, Fourth Department,

      Filed February 23, 1893.)

    Contract—Restraint of trade—Assignment of.
    Defendant sold to plaintiff’s husband his business as a baker and covenanted not to engage in similar business at that place for five years. Subsequently plaintiff’s husband gave a chattel mortgage and hill of sale of certain goods connected with the business, but which did not include the tools or good will. The mortgagees took possession of the goods, removed them and closed the place of business for five days, when plaintiff purchased their interest in the property under an agreement with her husband that the business should be run in her name, with him as manager, for the benefit of the family. Thereafter, defendant having started a similar business, the husband assigned to plaintiff the contract and covenant of defendant and all claims he had against him, and also the business and good will thereof. Held, that plaintiff did not become the entire owner of such business until the assignment was made; that such assignment was in substance a transfer of the contract in connection with a sale of the property and business of the assignor, and entitled plaintiff to maintain an action on the covenant.
    Appeal from a judgment entered in Herkimer county on 24th February, 1892, upon the decision of the special term, dismissing the complaint, with costs.
    Action to restrain the defendant from carrying on the business of a bakery and confectionery store at the village of Little Falls in violation of an agreement made between him and Frank E. Francisco, the husband of plaintiff, on February 20, 1888. The complaint was dismissed upon the ground that the plaintiff was not in a position to enforce the agreement.

      M. (7. Bronner and A. M. Mills, for app’lt;

      John D. Beckwith, for resp’t
   Merwin, J.

The plaintiff claims as assignee of her husband, and the main question upon this appeal is whether she is in a position to have the benefit of the covenant between the defendant and her husband. Ho question is made about the validity of the covenant as between the immediate parties. It is quite clear that it was assignable in connection with a sale of the property and business of the assignor, Diamond Match Co. v. Roeber, 106 N. Y., 487; 11 St. Rep., 47, although it did not in form run to the assigns of the covenantee. See Hedge, Elliott & Co. v. Lowe, 47 Iowa, 137; Pemberton v. Vaughan, 59 E. C. L., 87.

In order to determine whether the plaintiff has become the owner of the covenant in connection with a sale of the property and business, it will be necessary to refer to the facts, which are substantially undisputed.

On and prior to February 20, 1888, the defendant was carrying on a bakery and confectionery shop at Little Falls. At that date he made an agreement in writing with Frank E Francisco, the husband of the plaintiff, by which, in consideration of the payment of $1,200, he sold to Francisco his bakery and shop, with the good will of the business and certain property described in a bill of sale made that day, and assigned the lease of the store where he carried on the business. In this agreement there was the following provision: “ Smith agrees and binds himself that he will not, for the period of five years from March 1,1888, or duringtliat time, engage or become interested in the business of carrying on a bakery or confectionery store, or in the business like the one hereby sold out, in the village of Little Falls or in the immediate neighborhood.” Possession was taken by Francisco under the-agreement on March 1, 1888, and the consideration was paid, and thereupon he entered upon the business. This he carried on up to about the 10th November, 1889, in the same way and manner and at the same places that defendant had previously carried it. on, and used therein substantially the same fixtures and appliances. In February, 1889, in order to secure Clark & Wood, of Fort Plain, for money borrowed and past indebtedness, he gave to them a chattel mortgage for about $1,300 on certain property connected with the business, and after the maturity of the mortgage and on November 9, 1889, he gave them a bill of sale of the property mentioned in the mortgage and on stock and, goods on hand and property connected with the business. Oh the next day they, by virtue of the chattel mortgage and bill of sale, took possession of the property and store, closed the store and took part of the property to Fort Plain. They remained in possession and kept the store closed until November 15, 1889, doing no business whatever. At that date the plaintiff, through her husband as her agent,purchased of Clark & Wood all their interest in the chattel mortgage and the property covered by the bill of sale, and paid them in full for their claim against the husband, less certain portions of the property kept by Clark & Wood and applied upon the debt. None of the property so kept was part of the property purchased of defendant. Prior to this purchase by plaintiff it was verbally agreed between plaintiff and her husband that plaintiff would furnish the money and make the purchase, and that the husband should take charge thereof, and of her business connected therewith, and that the same should be carried on in plaintiff’s name, and that the family, consisting of the husband, wife and child, should be supported out of the prooeeds of the business, the husband being a practical baker and the plaintiff not. This arrangement was carried out.

The plaintiff took immediate possession of the store and bakery, and the tools, fixtures and appliances therein contained, reopened the business, selling the same kind of goods and to substantially the same customers as the husband had been previously doing, and the business was carried on down to the time of the commencement of this action in the same way and in the same places, and with the same tools and fixtures, as previously by the husband and by the defendant, the husband all the time being the manager.

About December 15, 1890, the defendant commenced to carry on another bakery business contrary to the provisions of his agreement, and so continued to the commencement of this action on May 30, 1891. On December 18, 1890, Frank E. Francisco notified the defendant that he was violating his contract, and required him to discontinue the business he had started upon. On the 25th May, 1891, Frank E., for a nominal consideration, executed and. delivered to plaintiff an assignment of the agreement with defendant, and indorsed thereon as follows:

“ For value received I hereby sell, assign, transfer and set over to Harriet A. Francisco all my right, title and interest in and to the within contract, and in and to the covenants therein contained, together with all claims and demands which I have against Charles A. Smith for any and all breaches thereof; also all my right, title and interest in and to the business, and the good will thereof, formerly owned and carried on by me which I have not previously sold, and of which you were not already the owner, and mentioned and referred to in the annexed instrument, together with all property and property rights therewith connected.” Upon the same day the plaintiff notified defendant of her ownership of the contract and the business, and called on him to discontinue his business. The plaintiff’s husband, as the court below finds,,did not transfer, or attempt to transfer, to plaintiff the business which he was conducting, and which he purchased of defendant, or the good will thereof, or the lease of his place of business, or the contract between himself and defendant, or any of the covenants therein, until the assignment of May 25, 1891. It would also seem from the evidence that the tools and fixtures were not transferred until then.

The fact that the assignment to plaintiff May 25, 1891, was for only a nominal consideration, or was in fact without consideration, does not in itself aid the defendant. Sheridan v. Mayor, 68 N. Y., 30. It was valid as against the assignor. The material question is whether the plaintiff became the owner of the covenant under such circumstances as will permit her to enforce it within the rule laid down in the 106 N. Y. above referred to.

By reason of the transaction with Clark & Wood and of the assignment from her husband, the plaintiff has become the entire owner of the property and business. She was not such without the assignment. The lease, the good will and the contract were not transferred to Clark & Wood, nor apparently the tools and fixtures. Under an express arrangement with the husband and practically for his benefit, Clark & Wood were bought out. After five days stoppage, the same business was re-opened and continued in the same place in the same manner, with the same fixtures and supplying the same customers, and was in reality for the benefit of the same parties. The five days stoppage of the business did not kill the five years covenant. It was only temporary, pending the settlement of the husband’s debt. The business was renewed in the name of the wife with the assent of the husband under his management and for his benefit. And when finally, in order to complete the title of the wife to the whole, the assignment to her was made by the husband, of whatever interest he still held, including his contract with defendant, it was in substance a transfer of the contract in connection with a sale of the property and business of the assignor. We think it should have been so held by the trial court. If so, the plaintiff was in a position to maintain the action.

It follows that the judgment must be reversed.

Judgment reversed on the law and the facts and a new trial ordered, costs to abide the event.

Hardin, P. J., and Martin, J., concur.


text:
    In the Matter of the Claim of Nancy Bronson, App'lt, v. The Estate of George C. Bronson et al., Resp'ts.

      (Supreme Court, General Term, Fourth Department,

      Filed February 23, 1893.)

    1. Decedent’s estates—Appeal—Evidence.
    The appellant presented a claim for $2,300 against the estate of her husband for rents of her property collected by him and the amount of a draft for insurance moneys indorsed by her and which he deposited in his own name. She was allowed §679, but it did not appear how the amount was made up. She appealed from so much of the decree as allowed her claim at such sum and from each and every part which disallowed her claim for the draft. The appellate court reversed the decree as to the part appealed from. Held, that the appeal was distinctly from that part of the decree that adjusted the entire claim at the sum named, and that being-reversed, there remained no adjudication upon any part of the claim, and upon a new trial evidence was admissible as if there had been no previous trial.
    2. Same—Declarations oe deceased.
    On the last trial evidence was admitted of declarations of the deceased, that the buildings burned had been paid for by him, and that the money in bank was his. Held, error; that such declarations were not admissible in favor of the estate.
    Appeal from a decree of the surrogate’s court of Oswego county entered on the 11th April, 1892.

      D. A. King, for app’lt;

      0. M. Reilly, for resp’ts.
   Merwin, J.

The appellant, Haney Bronson, is the widow of George 0. Bronson, deceased, and is one of the administrators of his estate. The administrators, in April, 1888, applied for a judicial settlement of their accounts, and thereupon the appellant presented an individual claim against the estate. The controversy here is over that claim.

On the 3d August, 1875, the appellant became the owner of certain real estate, and on the 4th May, 1884, the buildings thereon were destroyed by fire. The claim of appellant, as presented, is for rents received by the deceased from this property from January, 1876, to May 4, 1884, to the amount of $797, and interest, thereon, $168; also, for amount of draft for insurance money received by deceased May 20, 1884, $1,188, and interest thereon, $244.74, the total of the whole claim being $2,397.74. Bronson died 19th August, 1886.

The claim of the appellant, and also the accounts of the administrators, were contested by some of the heirs and next of kin, and were tried together. Only one decree was entered thereon, and in this the accounts were adjusted,- and the claim of plaintiff was allowed at the sum of $679.05, and interest from the decease of the intestate. It did not appear from the decree how the amount that was allowed on the claim was made up. Thereafter the claimant appealed to the supreme court, and in the notice of appeal it was stated that she appealed “from that part of the order, judgment and decree of the surrogate’s court of Oswego county, made in the above entitled matter, dated December 28, 1889, which is in the following words and figures: ‘And it is hereby further ordered, decreed and adjudged, that the claim of Nancy Bronson, one of the-administrators of this estate, for $2,-397.74, presented by her against this estate and contested by the next of kin of the decedent, after having heard the proofs and allegations of the several parties and arguments of counsel, and due deliberation thereon, is hereby established at the sum of $679.05,- and interest thereon from the decease of the intestate, viz.: August 19, 1886, to December 28,1889, to interest, $135.81, making a total of $814.86.’ And she appeals from each and every part of said decree which disallows her claim for a draft of $1,188, and interest from the date of the decease of said George G. Bronson.”

This appeal resulted in a reversal of the decree as to the part appealed from and the granting of a new trial. In the judgment of reversal that was entered, after reciting that the proceeding had been brought to a hearing upon an appeal from that part of the decree which established the claim at the sum of $679.05, and “ also on an appeal from each and every part of said decree ” which disallowed her claim for the amount of the draft, it was adjudged that the decree “ as to the part appealed from be and the same is wholly reversed upon both questions of law and fact,” and that a new trial be had in the surrogate’s court.

The matter then proceeded to a new trial in the surrogate’s court and the appeal now before us is from the decree then made. In the course of the trial the court held that the prior appeal was only from that part of the decree which disallowed the claim on the insurance draft and that the order for a new trial only covered that claim, and that, therefore, the claimant had no right to give evidence on the subject of the rents. It -was assumed that the amount as allowed in former decree was for rents. The claimant offered to prove not only the amount proved on the former trial but an additional amount to the extent of $100. This was excluded and exception taken.

The offer was within the amount of the claim as presented and we think the court erred in excluding the evidence. The appeal as taken was distinctly from that part of the decree that adjusted the entire claim of the appellant at the sum of $679.05 and interest. That being reversed, as it was by the appellate court, there-remained in the surrogate’s court no adj indication upon any part of the claim. The whole was open for proof the same as if there had been no previous trial of the case.

Evidence was taken on the subject of the draft and the court in its decree decided that the appellant could not recever therefor. Among other evidence offered by the respondents, the court received, over the objection and exception of appellant, divers declarations of the deceased in regard to matters disputed at the-trial. The appellant claims error in these rulings. The draft was payable to the order of the appellant. She indorsed it and allowed her husband, the deceased, to take it, and he thereupon took it to a local bank and had the proceeds placed to his credit. At his death $1,000 of such proceeds remained in the bank. The main question at the trial was whether the draft after its indorsement by Mrs. Bronson was delivered by her to Mr. Bronson for the purpose and with the intent of transferring to him absolutely all her interest in the draft and its proceeds.

Ordinarily the indorsement and delivery would be presumptive evidence of the transfer of the title of the proceeds, but where the transfer claimed is from the wife to the husband a different rule is said to prevail. In 2 Perry on Trusts, § 666, it is said: “ If a husband receives the capital fund of his wife’s separate property, there is no presumption that she intended to give or transfer it to him, but he is prima facie a trustee for her, and a gift from her to him will not be presumed without clear evidence.” See also Wormley's Estate, 137 Pa., 101; Jaques v. Methodist Episcopal Church, 17 Johns., 548; Gage v. Dauchy, 28 Barb., 622, reversed on other grounds in 34 N. Y., 293; 8 Am. & Eng. Ency., 1333. In the Jaques case it is said a wife may give of her separate property to her husband as well as any other person, if her disposition of it be free and not the result of flattery, or force, or improper treatment.

With a view of showing a reason for an absolute transfer, the respondents sought to show that the buildings destroyed by fire were built by the deceased from his own means, and that upon this account the insurance moneys were regarded by the appellant as belonging to her husband. Some of the declarations above referred to were upon this subject, and were to the effect that the buildings cost him, the deceased, several thousand dollars, that he would lose by the fire over a thousand dollars ; that he paid the original purchase price of the property; also, upon several occasions, that he said the money in the bank was his. These declarations, being received in behalf of the estate, were clearly incompetent. Weller v. Weller, 4 Hun, 195. This seems. to be conceded, but it is claimed that they were not sufficiently material to call for reversal within § 2545 of the Code. We are, however, inclined to the opinion that under the construction of this section in Matter of Will of Smith, 95 N. Y., 517, the declarations referred to were received to such an extent as to call for reversal.

The appellant also claims that the surrogate in deciding the case took into consideration material evidence that had been given on the former trial, but had not been given upon this. This fact, however, is only apparent, if at all, from the Opinion as printed in the case. This is hardly a sufficient basis for an exception. It is, of course, true, as claimed by the appellant, that the case should have been decided upon the evidence given at the trial in hand, and upon that only. Whether it was so decided, and if not, what remedy the appellant would have, it is not necessary here to consider, in view of our conclusions upon other parts of the case.

It follows that by reason of the errors above referred to, in regard to the claim for rents, and in receiving the declarations of the deceased, the decree must be reversed.

Decree of surrogate’s court reversed and new trial ordered, costs of the appeal to the appellant payable out of the estate.

Hardin, P. J., and Martin, J., concur.