text:
    Catharine Moore,as Administratrix, etc., Resp’t, v. New York Central & Hudson River Railroad Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1894.)

    Negligence—Question of fact—Railroad crossing-.
    Where the negative testimony of several witnesses, who were in position to hear and whose attention was directed to the fact, directly conflicts with the positive testimony of other witnesses, upon the question as to whether a signal was given, it should be submitted to the jury.
    Appeal from an order denying a motion for a new trial, made-on the minutes of the court.

      J. W. Dunwell, for app’lt; John Gillette, for resp’t.
   Bradley, J.

The plaintiff’s intestate was struck by the engine of a passenger train on the defendant’s road at the crossing of Bast street, in the village, of Canandaigua, and killed, December 10, 1891. The plaintiff charges that his death was occasioned solely by the negligence of the defendant, and upon both the question of the negligence of the defendant and that of care on the part of the decedent there is conflict in the evidence introduced by the parties respectively. He was riding and driving in what is commonly known as a “one-horse democrat wagon,” and going southerly upon Bast street, and passed into the railroad track, where his wagon was struck by a train moving westerly, with the result before mentioned. The evidence on the part of the plaintiff tended to prove that no signal was given of the approach of the train ; that no whistle was sounded, and no bell rung, until just at or immediately preceding the collision. There was much evidence upon the subject. The daughter, two sons, and the son-in-law of the deceased were at the house of the latter, which was on higher ground than the railroad track, and 625 feet north of it, and 710 feet northeasterly from the crossing on East street. They testify that they were in a situation at the time to hear the signal given if one bad been given ; that they heard none on the approach of the train ; and the daughter and one the of sons testified that their attention was then called to the fact that nowhistle or bell was sounded when they saw the train approaching, as the deceased had shortly before left the house, to go home and on his way would pass over the crossing in question, and that to enable the son to observe the movement of the train and the progress of his father he climbed into a tree where he could see both. The fact that he did so was corroborated by the evidence of the others at the house. Two passengers on the train, who were in the smoking car, testify that they heard no signal bell or whistle until just at the time of the collision. They were sitting together, and one of them testified that before this, on the train, he had noticed signals by whistles given in coming into towns ; that he knew the train was coming into Canandaigua; knew where the station was; and the fact that there was no signal given attracted his attention, and that no signal was there given until a moment before the accident; it was given at the time or an instant before the air brakes were applied; that “they didn’t blow the long whistle for Canandaigua station u'ntil after the accident, or a second before the accident.” On the contrary the engineer, conductor and two trainmen testified that the whistle was sounded for some considerable distance before reaching the crossing The engineer said between 300 and 400 feet, and one of the trainmen said he thought it was 400 or 500 feet east of the crossing; and the fireman testified that he rang the bell,—commenced ringing it some 300 or 400 feet east of the crossing. Another witness, called by the defendant, testified that he was on his way from his residence on Gorham street, which crosses East street north' of the crossing in question, and was going easterly on Gorham street, and, after passing East street, and when he came along where Kimball resided, he saw the smokestack of the train and heard the whistle as it approached the crossing : that it was a long whistle; commenced to sound, as he judged, a quarter of a mile from Kimball’s place; that the whistle continued about three or four seconds, and stopped before the train reached the crossing, and when it got to the box cars, which will hereafter be more particularly referred to. Being asked, on his cross-examination : “ Was there a signal that you heard when it came by those cars Ans. I don’t remember nothing. I couldn’t see the train when it got behind those box cars. You might see the stack. Q. You couldn't tell there was a train coming except for that, Qould you? Ans. Ho, sir.” And one Mason Mills, a passenger on his way from Phelps to Canandaigua, testified that he was in the smoking car, and that, as the train approached this crossing, he heard a whistle, a long whistle ; that he could not say how far it was from the crossing; it may have been a hundred rods ; that he would not say it was that dis-stance; and that “ it blew four or five seconds somewhere along there,” Such is substantially the evidence upon the question whether a signal was or was not given of the approach of the train to the crossing upon which the intestate proceeded in front of it. Affirmative evidence of the fact that a signal was given at and for some distance on the approach of a train may apparently seem more potent than that of persons to the effect that they did not hear it, or that no such signal was given; yet when the evidence of the latter tends to prove that their attention at the time was directed or called to the fact, and the omission to give any signal was particularly observed by them, the question is one for the jury to determine. And while the persons on and running the engine have at least as good opportunity to know as any other person can have whether the signal was given in the present case, their relation to the defendant was a circumstance which the jury were also permitted to take into consideration in determining the disputed question of fact. The evidence of the employes of the defendant was that the train was running at the rate of 25 or 30 miles an hour, and the speed was estimated higher by that of one or more other witnesses. It seems that East street is within the eastern boundary of the village of Canandaigua, and that the yard of the defendant extends considerable distance east of that street, and the railroad station or depot is some distance west of it. The train was running about on its regular time on its approach of the street, being due at the station at 12.50 P. M. The day was clear. The deceased was familiar with the crossing, and, unless his view was interrupted by the defendant’s cars standing upon a track north of that on which the train was moving, he could, by looking, have seen its approach. It appears that at the crossing there were three tracks. That the northern one was a branch track. The middle one, seven feet from it, was that on which the train was coming. That the next track south is that of the Northern Central Railway, the branch track before mentioned; and from 150 feet east of the crossing five other tracks extend cast 2,900 feet from East street. Upon the most northerly one of the tracks some cars were standing at the time of the accident, and it is claimed on the part of the plaintiff that they obstructed the view of the train by the deceased as he approached the railroad. After leaving Kimball’s house, lie drove southwesterly into and along Gorham street into East street; thence southerly 543 feet in that street to the crossing, and the evidence on the part of the plaintiff tends to prove that there were cars upon the branch track extending from a point 25 feet east of the street a long distance east, and that they at the time shut off the view of the deceased of the train as he was going south to the crossing. The fact that cars were standing on that track is not questioned, but the controversy in that respect has relation to their location, and as to how continuous the line of them was. The defendant introduced evidence to the effect that the nearest one was 150 feet from the crossing; that the first one was a gondola car, 34 feet long; then five box cars, altogether occupying space of about 290 feet in length on the track; that then east therefrom there was an opening of considerable distance, to other cars; and so on, cars and openings between them, so that a person passing down East street could see the train as it passed these openings, uninterrupted by any obstruction to his view ; that the gondola was only about eight feet high, and could not prevent seeing the train ; and that the smokestack could be seen over the box cars by a person on the street, until he was within 50 or 60 feet of the track.

It is reasonable to suppose that when the plaintiff’s intestate drove upon the track he was unaware of the danger he thus encountered ; and if, by the exercise of due care, he could have been advised of the approach of the train, and avoided the collision, he was chargeable with contributory negligence, and the defendant is not liable for the consequences of it. His situation required him to look and listen, to use his faculties, in approaching the railroad track, to ascertain whether with safety he could pass over it. The plaintiff had the burden of proving that the defendant was free from negligence in that respect. Upon that subject the son of the decedent testified that, otherwise being unable to see his father, he got into the tree, as before mentioned, from where ho could see him as he passed down the street to the crossing; that his father was then 20 or 30 feet from the crossing, that he was driving the horse on a walk, and looking both ways; that he was looking up the track and down the track, and that the witness heard the whistle of the engine just as it struck him. The witness Mills, before referred to, and who was called on the part of the defense, testified that he saw from the car in which he was sitting a man approaching the East street crossing in a wagon. As represented by the record before us, he testified, and repeated it on his cross-examination, that when he first saw him, the man was about 150 rods from openings between cars, by which his view was shut off once in a while. That he kept watch of him until he got near the crossing. That he saw him approach to four or five rods from the crossing,—might have been closer. That “up to the time he came to the crossing he had his head down. Sat down with his chin on his chest. He was looking straight ahead. I didn’t see no stir of his head.” Assuming that this witness was testifying intelligently, he could not have intended to be understood that the decedent was about 150 rods from the crossing when he first saw him. The distance there from Kimball’s house from which Moore came, was, by the streets, less than 1,200 feet. There was some opportunity to criticise the testimony of this witness from the way the record represents it was given by him. Whether the requisite signal of the approach of the train to the crossing to advise a person on the street, exercising due care, and whether or not the deceased exercised such care for his protection, were, under the circumstances furnished by the evidence, questions of fact for the jury, and properly submitted to them. ' They were by it permitted to find that the death of Moore was caused by the negligence of the defendant, and without any contributory negligence on his part. And the view which the jury were authorized to take and may have taken of the evidence is such that the court cannot see that their conclusion was so against the weight of it as to justify interference upon this review with the verdict in respect either to the questions upon which the liability of the defendant was dependent or as to the amount of damages awarded by it to the plaintiff. There seems to have been no error in the rulings at the trial. The order denying the motion for a new trial should be affirmed.

All concur.


source: Caselaw Access Project

author: Bradley, J.

license: Public Domain

text:
    George S. Riley, Resp’t, v. Richard W. Cheeseman, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1894.)

    Tender—Deposit in bank.
    A special deposit in a bank, at which a note is payable, is ineffectual as a tender, if subsequently transferred to the depositor’s general account, and his balance is, at any time, insufficient to pay the note.
    Appeal from a judgment in favor of plaintiff.

      John J. Snell, for app’lt; John M Durand, for resp’t.
   Bradley, J.

The purpose of the action was to recover the amount due on the promissory note of the defendant, of date March 31, 1886, whereby he promised to pay to the order of William B. Benshaw $100, 15 months after its date, with interest, at the Bank of Monroe, in Rochester, N. Y. On the day the note became due and payable, the defendant took to the bank $107.55 — the requisite amount to pay it — and made a special deposit of it there to pay the note. It was not presented there for payment, and afterwards, in August, 1887, the money was transferred from such special account to the general credit of the defendant in the bank, of which he was then advised. The note ■was not presented to the bank for payment until in March, 1892, shortly before the commencement of this action. It was not paid by the bank for the reason, as there stated, that the note was long-past due, and that in such case the bank did not pay without order from the maker. The plaintiff, who was the owner and holder of the note, called upon the defendant for payment, and was advised by him that he was ready to pay the principal sum and interest to the time the note became due, and offered to do so. This the plaintiff declined to accept in satisfaction of it. The fact that the note was payable at the bank enabled the maker, on the day it became due, to be ready there to pay it, and no failure of the holder then to present the note, to deposit the money there, and thus relieve himself from the interest upon it, and from costs, if suit should be brought upon the note. The bank, in such case, would not become the agent of the holder of the note, nor would the deposit be deemed payment of it, but it would be treated as a tender of performance of his promise to pay; and, to make it effectual for such relief, continued readiness on his part, and finally bringing the money into court, were essential. Caldwell v. Cassidy, 8 Cow. 271; Hills v. Place, 48 N. Y. 520; Locklin v. Moore, 57 N. Y. 306; Adams v. Improvement Commission, 44 N. J. Law, 638.

The contention on the part of the defendant is that having been at the bank, ready to pay the note, at the time it was due, and then left the money there for that purpose, it was sufficient, as he was ready to pay the amount of such tender at the time the note was afterwards, presented to him, and brought some amount of money into court. Such is the proposition presented here. It is not deemed essential for this purpose that the money should have remained in special deposit to pay the note, but that the continuance of his balance in his general account in the bank, adequate to the payment of it, would have been sufficient, in view of the fact that the note, when presented, would permit the bank to pay it, and charge the amount of the note to him, the same as if-his check had been presented. Indig v. National City Bank, 80 N. Y. 100, 106. The plaintiff had before this declined to take anything less than the principal and interest up to the time of payment; and, as the defendant had refused to pay such amount, the bank would not have properly represented the defendant if it had paid anything more than the amount due upon the note at its maturity. There are expressions in some of the opinions of the courts which might lead one to suppose that it is only necessary to make the tender or deposit at the proper time of the requisite amount, and, when action is brought, to plead the readiness at the time and place of payment, and bring such amount of money into court. But an important element in the tender or deposit is that it be continued, or, in other words, kept good, until the money is paid into court to support the defense against the claim for further interest and costs in an action brought upon a note or other obligation to pay. Roosevelt v. Bull's Head Bank, 45 Barb. 579 ; Tuthill v. Morris, 81 N. Y. 94, 99, 100; Halpin v. Phenix Insurance Co., 118 N. Y. 166; 28 St. Rep., 788; Nelson v. Loder, 55 Hun, 173; 28 St. Rep., 635 ; aff’d 132 N. Y. 288; 43 St. Rep., 946. This the defendant failed to prove. And it appears that, intermediate the time the deposit so made and the presentation of the note to him for payment, he had drawn from and deposited in the bank moneys, and from time.to time during that period his balances there were reduced to amounts considerable less than he so deposited on the day the note become due. His deposit for the payment of the note was therefore not kept good, and, as the consequence, became ineffectual as a tender. And, in that view, his readiness and offer to pay the plaintiff the amount so deposited in satisfaction of the note shortly before the action was commenced, and the payment of such amount into court; do not bar the recovery of interest after the maturity of the note. The judgment should be affirmed.

All concur.


author: Ward, J.

text:
    Barton v. Donnelly et al.

      (Supreme Court, Niagara Special Term,

      Filed January, 1894.)

    1. Pleadings—Replevin Bond.
    A complaint in an action upon a replevin bond, which fails to allege that the delivery of the chattel was procured by means of the undertaking, is insufficient. "
    2. Replevin—Undertaking.
    The mere failure to justify, where all the other proceedings are regular, and the property secured by means of the undertaking, will not excuse the sureties.
    Demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action.

      Joshua Gashill, for pl’ff; S. JE, Graves, for def’ts.
   Ward, J.

This is an action against the sureties on an undertaking given by the defendants for the return of a horse which had been replevied by the plaintiff in an action in a justice’s court in Niagara county, before Edward Gr. Parker, justice, wherein Esther C. Townshend was plaintiff and John Duffy defendant. The defendants herein demur to the complaint, and allege, as grounds of demurrer, that the complaint does not state facts sufficient to constitute a cause of action. The complaint avers commencement of the action in justice’s court for the recovery of the horse on or about the 26th day of April, 1889; that the'plaintiff therein gave the usual undertaking in that behalf; ” that afterwards, and on or about the the 2d day of May, 1889, the said Duffy gave an undertaking for the return of said chattel, executed by the defendants herein, which was filed by the said justice on the 2d day of May, 1889; that a copy of said undertaking, so executed by the defendants in the action in justice’s court, was thereto annexed, and marked “ Exhibit A,” and made a part of this complaint; that such proceedings were had in said action in said justice’s court that on the 18th day of June, 1889, the said justice of the peace rendered judgment in favor of,the defendant against the plaintiff for ten dollars cost; that thereupon, and on or about the 6th day of June, 1889, the said Esther C. Townshend appealed from the said judgment against her in favor of said Duffy to the county court of Niagara county, and such proceedings were had thereupon on said appeal that on the 19th day of November, 1889, said judgment so rendered * * * • was reversed by said county court, with thirty dollars costs, and twenty dollars and thirty-three cents disbursements.” The complaint then alleges the judgment of reversal, and the filing of the judgment roll and the docketing of the judgment in Niagara county clerk’s office on the 20th of November, 1889, the issuing of an execution thereon to the sheriff of the said county, its return unsatisfied, and the assignment thereof, before the commencement of this action, to the plaintiff herein, and demanded judgment for the amount of such county court judgment. The copy undertaking (“A ”) was entitled in the justice’s court action, and recited that the defendant required the return of the chattel (the horse) “ replevied by the plaintiff in the above-entitled action,” and stated its value to be $150, and provided that the sureties (the defendants herein) “are, pursuant to the statute, jointly and severally held and firmly bound in the sum of three- hundred dollars for the delivery of said chattel so required to the said plaintiff, if delivery thereof is adjudged, and for the payment to the said plaintiff of any sum which the judgment awards against the said defendant.” The defendants acknowledged the undertaking, but neither of them justified. There is no affidavit or notice requiring the return of the chattel accompanying the undertaking, as required by § 2825 of the Code, nor is there any allowance of the undertaking made by the justice, nor are any of these facts alleged in the complaint. The justice simply indorsed on the undertaking: “Received with the affidavit and notice this 2d day of. May, 1889. Edward Gr. Parker, Justice.”

The defendants are sureties on this undertaking, the condition' of which is the measure of their liability. The purpose of giving this instrument is to indemnify the plaintiff in case the defen dent takes the chattel pending the litigation, and fails to have it forthcoming when required to satisfy the judgment, and for the payment tó the plaintiff of any sum -which the judgment awards against the defendant. The Code of Civil Procedure, § 2925, provides that the defendant may,»at anytime before the return day of the summons, if he does not except to the plaintiff’s sureties, serve upon the justice a notice that he requires a return of the chattel replevied. With the notice he must deliver to the justice an affidavit requiring a return of the chattel, as provided by §§ 1704 and 1712 of the Code: “* * * The sureties in the undertaking must justify before the justice upon the return of the summons.” The affidavit, by § 1704, must allege the ownership of the chattel in the defendant, or that he is lawfully entitled to the possession thereof by virtue of a special property therein, the facts with respect to which must be set forth. The undertaking therein provided shall be in form the same as the one before us. Section 2926 provides for the justification of the sureties of the defendant and the allowance of the same. The scheme of the statute is that the defendant shall procure such allowance by the justice on the return of the summons. By § 2927 the defendant must require a return of the chattel, and procure the allowance of the undertaking, or he is not entitled to the possession of the chattel pending the action. By § 1726, (which, with § 1730, is made applicable, by § 2931, to proceedings in justice’s court), if the chattel is delivered to the defendant, and the plaintiff recovers in the action, its value must be fixed at the time of the trial. By § 1730 the plaintiff must have judgment for the recovery of the chattel, with his damages, if any; and if the chattel, after it was replevied, was delivered to the defendant, “the final judgment must also award to the plaintiff the sum fixed as the value thereof, to be paid by the defendant, i£ possession thereof was not delivered to the plaintiff.” And we assume that there will b,e included in this judgment the costs of the action. This is the judgment to which the undertaking refers,—the j udgment for the recovery of the chattel itself, or, in the event of its nonproduction, its value. The defendant is not entitled to the return of this property unless he takes the proper statutory steps pending the litigation, none of which is alleged in the complaint except the giving of this defective undertaking and its filing with the justice. In order to make these sureties liable upon their undertaking, the chattel must be delivered to the defendant. The complaint should have alleged that, upon taking the proper statutory proceedings in the justice’s action, the chattel was delivered to the defendant. This is not alleged except in the recital contained in the undertaking. Possibly this may bind the defendants, as the complaint makes the undertaking a part thereof. The complaint should have further alleged the taking of the necessary statutory steps by the defendant in the justice’s action to procure a return of the property and the delivery of the chattel in pursuance thereof, or at least that the delivery of the chattel was procured by means of the undertaking. As has been seen, there is an entire failure in this respect. The mere failure to justify, the undertaking by the sureties, however, if all other proceedings were regular, and the property secured by means of the undertaking, would not excuse the sureties. Decker v. Anderson 39 Barb. 346. The bare statement of the justice on the back of the undertaking that he received the affidavit and notice with the undertaking is not an allegation that a sufficient notice or affidavit was received in connection with the undertaking, and does not aid the plaintiff, nor does it amount to an allowance by the justice of the undertaking. The complaint has other defects. It does not set forth the proceedings to procure the judgment of reversal in the county court, further than the bare allegation that an appeal was taken and a judgment rendered, nor does it state in any manner that the judgment was “ duly given or made.” It does state that on the 18th of June, 1889, the judgment was rendered in the justice’s court, and that the appeal was taken therefrom on the 6th day of June, 1889,—12 days earlier. But, passing over these defects, it is entirely apparent that the complaint is fatally defective in the respects otherwise indicated. It is therefore unnecessary to consider the question (to some extent argued by counsel) whether, if the complaint were not subject to the objections above stated, the plaintiff could, in any event, recover in this action. These conclusions lead to the sustaining of this demurrer, which is ordered, with costs; but the plaintiff may have leave to serve an amended complaint in this action within 20 days after the service of the proper order upon him and the pay- „ ment of such costs.

Ordered accordingly.


author: Fitzsimons, J.

text:
    Joseph Bird, App’lt, v. Samuel Kreiser, Resp’t.

      (New York City Court, General Term,

      Filed February 8, 1894.)

    Deposition—Examination before trial.
    Where plaintiff's object is to compel defendant to disclose his evidence, the latter’s examination before trial will not be allowed.
    Appeal from an order vacating an order for the examination •of defendant before trial.
    The opinion of Newburger, J., at special term is as follows:
    From an examination of the affidavit, order, and pleadings it appears to me that the examination sought is for the purpose of compelling the defendant to disclose the evidence by which he intends to establish his defense. The motion to vacate order herein must therefore be granted. No costs.

      G. Bainbridge Smith, for app’t; Fromme Bros., for resp’t.
   Fitzsimons, J.

J. — The order appealed from is affirmed with •costs. The reasons stated by the special term justice in his opinion are sufficient to sustain the order, and are adopted by us.

All concur.


author: Davie, S.

text:
    In the Matter of Benjamin Cooper, Deceased.

      (Surrogate’s Court, Cattaraugus County,

      Filed January, 1894.)

    I. Executors, etc.—Disputed Claim.
    The surrogate, upon an accounting by the personal representative of a deceased executor, may determine the validity of a claim of such deceased executor against the estate of testator,
    3. Contract—Implied Promise.
    A promise to pay for services will be implied, unless a presumption arises, from the relation of the parties, that they were rendered without any expectation of compensation.
    8. Trust—Specific Purpose.
    Delivery of money to a person, to be applied to specific purposes, to which he assents, creates a valid trust.
    Proceedings for a judicial settlement of the accounts of the executors.

      Thrasher & Leonard, for Ezra Cooper, the surviving executor; J. M. Congdon, for administrators of Henry H. Atwell, the deceased executor; J. J. Inman and W. S. Thrasher, special guardians, fro se.

   Davie, S.

Benjamin Cooper died at the town of Perrysburgh on the 14th day of February, 1892, at the age of 88 years, leaving him surviving no widow, children, or descendants. His will, bearing date July 9, 1891, was admitted to probate May 2, 1892, and letters testamentary thereupon issued to Ezra Cooper and Henry H. Atwell, the executors therein named, who continued to manage and control the estate, acting together, until the death of the executor, Atwell, on the 19th day of September, 1892. Shortly after Atwell’s death his widow and son were appointed administrators of his estate. The surviving executor and the administrators of the estate of the deceased executor present their petition for judicial settlement herein. At the time of the death of the testator, Atwell was indebted unto him upon a promissory note, dated June 5, 1891, for’ the sum of $300 and interest, due one year after date, for which it is claimed that the representatives of the Atwell estate should account. On the contrary it is alleged that during the last year of testator’s life Atwell. rendered services for him greatly exceeding in value the amount of such note, and for which the administrators present a claim, and seek to have the same adjudicated upon this accounting. On the return of the citation the parties opposed to the allowance of the claim moved that this proceeding, in so far as it related to such claim, be dismissed upon the ground that the surrogate’s court had no jurisdiction to try the disputed question of fact involved in the determination of the claim, and that it was not a personal claim, with the general scope and purview or § 2739 of the Code. The motion was denied, but if it should be-determined upon a careful examination that the surrogate’s court had no jurisdiction, then the proceedings should be to that extent dismissed, and the parties left to their remedy by action or by a reference under the .statute to determine the controversy between the two estates. The section of the Code referred to provides that—

“ Upon a judicial settlement of the account of an executor or administrator he may prove any debt owing to him by the decedent ; where a contest arises between the accounting party and any of the other parties respecting any property alleged to belong to the estate, but to which the accounting party lays claim, or repeating a debt alleged to be due by the accounting party to the decedent, or by the decedent to the accounting party, the contest must be tried and determined in the same manner as any other issue arising in the surrogate’s court.” Code, § 2339 ; Laws 1893, c. 686, § 2731.

Had Atwell survived, no doubt would have existed in regard to the authority of the surrogate’s court upon this accounting to have determined the extent of his indebtedness to the estate or the indebtedness of the estate to him. Does the fact of his death, and that he is represented upon this accounting by his personal representatives, deprive the surrogate’s court of jurisdiction to determine precisely the same questions ? Ho authorities are cited bearing directly upon this question, but it has been held that the surrogate’s court has jurisdiction upon judicial settlement to hear and determine all claims in which an executor is interested, and the circumstance that he is interested jointly with others in the demand does not affect the authority to adjudicate with regard to it, Estate of Eisner, 5 Dem. 383, that a surrogate has authority to determine whether a claim against an executor is discharged by will, Stevens v. Stevens, 2 Eedf. 265; that, where an executor claims the right to retain out of the assets of the estate a certain sum of money as belonging or due to him, the surrogate has jurisdiction, whether such right depends upon legal or equitable principles, Boughton v. Flint, 74 N. Y. 476; that the executor acquired an additional interest in the claim sought to be established after he became executor does not affect the jurisdiction, Shakespeare v. Markham, 72 N. Y. 400; that the surrogate has jurisdiction to pass upon and settle claims held by the executor or administrator in a representative capacity against the estate, as well as one held by him individually, and the fact that others were joined as administrators of one estate while he was sole administrator of the other was immaterial, Neilley v. Neilley, 89 N. Y. 352. While none of these cases are directly in point, they evidence a design on the part of the courts to so construe and apply this § 2739 of the Code as to clothe the surrogate with ample authority on judicial settlement to determine all property rights between the administrator or executor and the estate which he represents, and which are necessary to be determined in order to secure a full adjustment of all matters connected with the trust. Upon qualifying and assuming control of the assets of the estate as -executor, Atwell incurred the obligation of properly administering upon and duly accounting for such assets, and this obligation is not affected by the fact of his death. The statute declares that the amount of his indebtedness to the estate in an asset tobe accounted for as so much money in his hands, 2 Rev. St. p. 84 § 13; Baucus v. Stover, 89 N. Y. 1, but the extent of such indebtedness depends upon the validity of his personal claim; hence, it becomes indispensable to pass upon such claim in order to determine whether the representatives of Atwell’s estate should account for the amount of the note as assets. The conclusion, therefore, seems inevitable that the provisions of § 2739 of the Code are sufficiently comprehensive to confer jurisdiction in a case of this character, and that the claim should not be dismissed for lack of jurisdiction, but disposed of upon its merits.

The evidence clearly shown that during the last year of testator’s life Atwell rendered important and necessary services for him. About the 1st of July, 1891, testator deemed his condition such as to require an attendant at night. Accordingly Atwell began staying with, and attending upon him, during the nighttime, and continued doing so until about the 10th day of September, when he began staying with testator both day and night; and from that time to testator’s death Atwell was in attendance upon him substantially all the "time, and during that period Atwell had, to a great extent, the responsibility of administering medicines to testator, slept in the same room with him, attended his calls, waited upon, nursed, and cared for him. The services were to some extent of an unpleasant and' disagreeable nature. The testator was afflicted with a urinary trouble, rendering the-use of a catheter frequently necessary, which operation was usually performed-by Atwell. While the evidence clearly discloses the meritorious character of the services, it is not so easy to discover therefrom a satisfactory and legitimate measure of the value of such services, Mrs. Waterman testified that she had been a nurse for SO or 40 years, and that she knew the value of the services rendered by Atwell, and that they were worth from five dollars to six dollars per day; but the cross-examination of this witness established her utter incompetency to speak as to the question of value. The evidence of the witness Yosburgh was in much the same situation. While he testified that the services were worth five dollars per day, it appeared that his opportunities for becoming familiar with the value of that kind of services were confined to a single transaction, where he cared for, boarded, and nursed a sick man for three weeks and received five dollars for so doing. The attending physician was unable to give any opinion whatever as to the value of the services. Dr. Eugg, who knew in a general way the condition of the testator, testified that if testator was entirely helpless, requiring attention all the time, the services were worth from four dollars to five dollars per day; but assuming that from the middle of July to the middle of September Atwell merely slept there nights, called occasionally to wait upon testator, and during the last five months had assistance in caring for him, and that the testator was not confined to his bed until within a short time before his death, but was up and dressed, such services would be worth from two dollars to two dollars and fifty cents per day. The latter assumption is much more in conformity with the actual facts. The evidence as to testator’s condition, and what Atwell actually did, under Dr. Eugg’s estimate of the value of the services, would not to any extent justify or sustain a finding that such services were worth to exceed two dollars and fifty cents per day while Atwell was in attendance both day and night, and one-half that sum when there nights only. Testator was not entirely helpless, and did not require attention all the time. He was up and dressed in the daytime, and able to go to the table for his meals until shortly before his death. This makes the total value of the services $472.50. But it is urged upon the part of the contestants that, whatever the value of the services, they were rendered under such circumstances, and the relations existing between Atwell and testator were of such a character, that the legal presumption is that they were rendered gratuitously. Ordinarily, where one receives the beneficial services of another, the law implies a promise to pay what such services are reasonably worth; but such presumption may be entirely overcome by the circumstances of a particular case. The legal presumption of an obligation to pay is very weak when the services rendered are of such a character that, from the relations existing between the parties, they evidently were prompted by motives of affection and reciprocal obligations. If the circumstances are such as to lead to the conclusion that the services were rendered gratuitously, the law will not imply an obligation to to pay. It has been distinctly held that, however valuable the services, one cannot render them with a tacit understanding that no pecuniary charge is to be made therefor, and afterwards recover upon a quantum meruit. Moore v. Moore, 3 Abb. Dec. 303; Williams v. Hutchinson, 3 N. Y. 312; Ross v. Ross, 6 Hun, 182. While no doubt exists in regard to this legal proposition, the evidence by no means justifies its application to the case at bar. It is true that the relations between Atwell and the testator were, and for many years had been, of a friendly character. Testator was accustomed to call upon Atwell, from time to time, for advice and assistance, and occasionally spoke of him as his boy; yet the evidence does not disclose such a state of reciprocal obligations between the parties as to render it presumable that either At-well or testator understood that these services were being rendered without expectation of pecuniary compensation.' The statements and declarations of testator imply a contrary intent. While the amount of compensation was not fixed by the agreement of the parties, the evidence shows that testator expected to pay what such services were reasonably worth. Shortly after the commencement of the services, testator stated to Atwell, in the presence of Mrs. Waterman, that he had a $1,000 mortgage and a $500 note, and that be was going to fix it so that Atwell could collect them; and the $1,000 he was going to give to Atwell and the $500 to Mrs. Watermán, because of the services they had rendered and the kindness they had shown him. He repeated this statement to Atwell on several occasions while the services were being rendered. On another occasion testator said to Atwell that he wanted to and was going to pay him well, and he thought it would be right that he should allow the $1,000 for his services. The entire evidence in the case is susceptible of no other construction than that it was the mutual expectation that Atwell should receive a reasonable compensation. This case seems to come fairly within the scope of Markey v. Brewster, 10 Hun, 16.

There is, however another feature of this case requiring careful consideration. It appears that during the time Atwell was caring for the testator he delivered to Atwell the sum of $1,500 in money, and the circumstances attendiug such delivery are disclosed the cross-examination of the Mrs Waterman:

“Q. Did you hear a conversation between Atwell and Mr. Coope:-, and what Mr. Cooper told Atwell to do with this money? A. He told him to take eight hundred dollars,—five hundred dollars to give to Mrs. Abbott, one hundred dollars to her mother, two hundred dollars to be sent to Washington territory to her sister and brother. Q. What about Mrs. Lincoln? A. Was to have one hundred dollars. Q. Ánything said about what was to be done with the balance of the money ? A. He told him. Q, What did he say ? A. He told him to keep the remainder for my use. Q. You heard Mr. Cooper tell him that? A. I did. Q. What did Mr. Atwell say ? _ A. He said he would do it; they should be done according to the request.’’

Yery soon after the receipt of the money Atwell paid to the various persons designated by the testator their respective amounts and the balance he had in his possession at the time of testator’s death. It is claimed on part of the surviving executor that such transaction merely constituted Atwell an agent to disburse this money for the testator, and that such agency was terminated by testator’s death ; that the portion of this fund which remained in Atwell’s hands at the death of testator constitutes a part of his estate, and that Atwell’s representatives should account for the same. On the contrary, it is asserted that this transaction, construed in the light of all the attendant circumstances, constituted a valid trust, and that the title to such' fund vested in At-well as trustee, with Mrs. Waterman as cestui que trust, and that Atwell’s representatives are under no obligations to account to any one but her therefor. It is undoubtedly true as a legal proposition that if it was the intention of the" testator to constitute a mere naked deposit of this money in the hands of Atwell, thereby creating only an oral agency, coupled with no interest on Atwell’s part, such agency was revocable at the pleasure of testator, and upon his death ceased by operation of law. Story, Ag. 463-488; but if it was the design of testator to part with the title to and all control over this fund, to place it absolutely and unqualifiedly in the hands of Atwell, to usefor-the benefit of Mrs. Waterman, then the transaction was not in any manner affected by testator’s death. It will be observed that there was no legal impediment to the creation of a trust of the character claimed to exist in this case. A trust of personalty is not within the statute of uses and trusts, and may be created for any purpose not forbidden by law, Gilman v. McArdle, 99 N. Y. 451; and in order to constitute a trust in respect to money or personal estate, no formal or written agreement is necessary, Day v. Roth, 18 N. Y. 448; Gilman v. Mc-Ardle, 99 N. Y. 451. In construing this transaction it is competent and proper to take into consideration the attendant facts and circumstances evidencing the motive and intent of the testator. Day v. Roth, 18 N. Y. 448. If the circumstances clearly indicate an intention to create such a trust, it is sufficient. Minchin v. Merrill, 2 Edw. Ch. 333. In seeking to discover the intent of the testa tor, it will be necessary to refer to the relations existing between the parties. It appears from the evidence that Mrs. Waterman began residing in the family of the testator before the death of his wife, which occurred in February, 1887, hnd from that time continued to reside with the testator in the capacity of housekeeper until his death. She assisted to some extent in nursing and caring for testator, who frequently expressed his appreciation of her kindness, and a design to compensate her therefor. After the making of his will, and evidently about the time of delivering the money in question to Atwell, testator expressed an intent to give to Mrs. Waterman the proceeds of a $500 note, assigning as his reason for so doing that she had rendered services and been kind to him. This note, however, was never transferred to Mrs. Waterman. Moreover, at the time of delivering the money to Atwell, testator expressed no intention of retaning any control or jurisdiction over it. He did not retain the right to direct at what time or in what manner it should be used for Mrs. Waterman, and- it does not appear that he ever made any suggestion in relation to it after delivering it to Atwell. If the testator had, at the time in question, delivered the money to Mrs. Waterman herself, telling her to keep it for her use, it would have constituted a valid gift inter vivos, and transferred the absolute title to Mrs. Waterman, and neither testator nor his personal representatives could have recovered any part of it. Has not the title passed just as absolutely by a delivery of the fund to Atwell for the use of Mrs. Waterman? In the case of Gilman v. Ardle, above cited, it was shown that Mrs. Gilman placed in the custody of the defendant about $2,000, and directed him to use the money for the support and maintenance of herself and husband as long as they lived, and after the death of the survivor to pay their funeral expenses, and erect for them suitable monuments, and expend the residue in masses for the repose of the souls of herself and husband. It was claimed by the plaintiff in that case that the transaction created a mere agency, revocable at the pleasure of Mrs. Gilman, and that no title to the fund passed to the defendant, and that, in consequence, the agency was revoked by her death; but the court of appeals held that such was not the case; that a valid trust was thereby created, saying :

“ Where money is paid by A. to B. on the promise of B. to invest or employ it in a definite, specified and lawful manner, a valid contract is made;, and if there is an ascertained beneficiary interested in the performance of the agreement, he can, after the death of A., enforce it as a trust."’

In the case at bar, testator, after having frequently acknowledged the obligation he was under to Mrs. Waterman, and evidently desiring to make some certain and definite arrangement for her compensation, delivered this $600 to Atwell, directing him to use it for her. Atwell accepted the money, agreeing, unequivocally, to use the fund for that express purpose. Under the authority above cited it is difficult to conceive of any reason why At-well was not absolutely obliged to account to Mrs. Waterman for the entire sum. The cases are numerous illustrative of the character of transactions which the courts have adjusted to constitute valid trusts. Where S. deposited money in trust far M. and K., distant relatives, who were ignorant of it, S. retaining the bank book and drawing one year’s interest, it was held that a valid trust was created. Martin v. Funk, 75 N. Y., 134. Where C. F. deposited money in the bank to her own credit, “ in trust for C. F. M.,’’ it was held to be the money of C. F. M. Millspaugh v. Putnam, 16 Abb. Pr. 380. A. delivered a package toB., containing money, a bank book and a memorandum stating where he desired to be buried, and how the balance of his property was to be distributed. Held to be a valid trust. Pierce v. Bank, 129 Mass. 425. Where one took a bank book at the direction of his aunt, who said: “ Now, keep this, and, if anything happens to me, bury me decently and put a headstone over me, and anything that is left is yours,” —-it was held that a trust was created. Curtis v. Bank, 77 Me. 151. Also in a case where a testator transferred certain bank shares to himself as trustee for his daughter, she being ignorant of the transaction, and he taking the dividends. Cummings v. Bramhall, 120 Mass. 552. Also where one delivered a bank book with an assignment of the deposit to E. on the agreement that E. should pay such sums to her as she might want from time te time during her life, and the balance to her son. Davis v. Ney, 125 Mass. 590. In the case of Mabie v. Bailey, 95 N. Y. 206, the testator made a deposit in a savings bank in his own name as trustee for the plaintiff, took a pass book in which the account was so entered, exhibited the pass book to plaintiff’s mother with other pass books containing entries of a similar character in favor of herself and other children, and, when asked why he did not let them have the money then, said it would do them more good thereafter, and in subsequent conversations these deposits were recognized by the testator as a provision for the family. It was held that the evidence clearly showed an intent on part of the testator to create a trust for the benefit of the plaintiff.

It is, however, urged on part of the contestants that, assuming this transaction to constitute a valid trust, there is another reason why the representatives of the Atwell estate should account for at least a part of this fund. It appears from the evidence that after the death of the testator, and on or about the 17th of May, 1892, Mrs. Waterman and Mr. Atwell had an adjustment of their affairs, and Atwell then paid over to her the sum of $500, taking her receipt therefor, which stated that such payment was in full satisfaction of all claims which Mrs. Waterman had against him, and in full settlement for all sums which Atwell held for her, in trust or otherwise, and in particular from Benjamin Cooper. It does not appear from any other source just how much of this fund Atwell had in fact paid over to Mrs. Waterman, and it is claimed that it inferentially appears from the receipt that he settled with her in full for this $800, thereby making a gain for himself, in contravention of the well-established principle that trustees are not permitted to retain any profit or advantage to themselves through their dealings with the trust fund. Citing Dunl. Paley Ag. 51; Davoue v. Fanning, 2 Johns. Ch. 252; McMurray v. McMurray, 66 N. Y. 175. But if we are right in the conclusion already reached, that the title to this fund passed absolutely from the testator, then Atwell was accountable only to the cestui que trust for the manner in which he administered the trust, and not to any extent to the representatives of the testator. The conclusion reached, therefore, is that the representatives of the estate of Atwell are entitled to recover from the estate of testator the difference between the amount of the note above referred to and the value of the services rendered by Atwell to the testator as above determined. A decree will be entered accordingly.


text:
    In the Matter of Williams.

      (Surrogate’s Court, Cattaragus County,

      Filed January, 1894.)

    Appeal—Surrogate—Case.
    Under supreme court rule 38, a surrogate may permit service of a case and exceptions after expiration of the time therefor.

      Motion for leave to serve a case and exceptions.

      Henry B. Curtis, (G D. Van Aernam and Alfred Spring, of' counsel,) for the motion; C. Z. Lincoln, opposed.
   Davie, S.

On the 17th day of April, 1893, a decree was made directing the mortgaging of the real estate of which the intestate died seized for the payment of his debts, which decree also established a personal claim in favor of the administrator against the estate. On the 6th day of June, 1893, a copy of such decree, with a notice of entry properly indorsed on the back thereof, was personally served upon the contestant’s attorney. On the 4th day of December, 1893, contestants served a proposed case containing exceptions upon the attorney for the administrator, he being the petitioner in the proceedings for the disposal of the real estate for payment of debts of intestate. The petitioner’s attorney immediately returned such proposed case and exceptions, with his reasons for so doing indorsed upon the back thereof, viz. that the same was served too late, that no appeal was pending in said matter, and that such proposed case was not in conformity with the requirements of § 796 of the Code, not being legibly written. The first question to be determined upon this motion is whether or not an appeal is, in fact, pending; for, if no such appeal has been taken, and the time for appealing fully expired, no reason exists for granting the relief sought. It appears from the moving papers herein that after the entry of the decree negotiations for settlement were entered into between the parties, and, in consequence, certain correspondence ensued between the attorneys regarding an extension of time for service of notice of appeal and a case herein. On the 12th day of August, 1893, a notice of appeal was personally served upon the petitioner’s attorney, which was immediately returned with the indorsement that the same was served too late. A motion was thereupon made for the purpose of determining whether such service was seasonably made or not. All the correspondence between the parties bearing upon the question of extension of time was .then before the court, and it was thereupon determined that the proper construction to be placed upon such correspondence was that, under all the attendant facts and circumstances, it did, in effect, constitute a valid extension of time for taking an appeal and serving a case for a period of 60 days, which had not yet elapsed when such notice of appeal was served; and an order bearing date on the 20th day of October, 1893, was thereupon made and entered, reciting to some extent the history of the proceedings, and providing “ that said appeal be allowed; that ;said Curtis reserve said notice of appeal upon said Lincoln within twenty days after date of this order, and that said Lincoln accept and retain said notice.” On the 15th day of November, 1893, contestants’ attorney remailed the notice of appeal to petitioner’s attorney, who-at- once returned it, with the reasons indorsed that it was served too late, that it was not properly served, and that it did not appear therefrom who the parties to such appeal were. It is entirely apparent that the service of November 15,1893, was not sufficient to perfect an appeal in the first instance. There is no authority for taking an appeal from an order or decree of a surrogate’s court by service of notice of appeal by mail. Code, § 2574. If no appeal was, in fact, then pending, it was of little consequence in what manner the original notice of appeal was returned to the petitioner’s attorney. Of course, no court has the authority to extend the time for taking an appeal, or to allow an appeal to be taken after expiration of time, Id. § 784; Clapp v. Hawley, 97 N. Y. 610; but it was entirely competent for the parties to stipulate an extension of time or to waive any statutory provision made for their benefit, Ex parte Crosby, 8 Cow. 119 ; Buell v. Trustees of Lockport, 3 N. Y. 197; Root v. Wagner, 30 N. Y. 9-17; Baker v. Braman, 6 Hill, 47 ; and the only question involved in the former motion was as to whether or not the parties had in effect stipulated such extension, and the decision of such 'motion was a judicial determination that the acts and correspondence of the attorneys constituted such extension, and a notice of appeal having been served within such extended time, petitioner’s attorney was not justified in refusing to accept the same. The case and exceptions, however, were concededly served too late, and it is now urged in opposition to this motion that the surrogate’s court possesses no authority to relieve the contestants in this particular, or to permit the service of a case after the expiration of the time therefor, whatever the excuse for such default, or however meritorious the application. If such is the case, the practice in surrogates’ courts is sadly defective; and, if there is at present no law sanctioning the granting of such relief in a proper case, a little law should be immediately made remedying such defect. But a little observation will show that parties aré not remediless in such a case. Very general authority is given to courts of record in the exercise of their discretion to relieve a party from the consequences of an omission to do an act necessary to protect his rights, upon good cause shown, Code, § 783, and under the authority of this section courts very generally grant the right to serve a case after the expiration of the time therefor, upon proper application being made, and upon such terms as seems just.- This section is not in terms made applicable to surrogates’ courts, Id. § 3347, subd. 4; but, if the authority to grant relief in cases of this kind is not specifically conferred upon surrogates’ courts by virtue of the section of the Code cited, and is not an inherent power necessarily incident to its general authority and jurisdiction, specific authority seems to exist from the provision of supreme court rule 32. This rule limits the time in which to serve a case, where an appeal is taken from an order or decree of a surrogate’s court, to 10 days after service of such decree or order and notice of entry thereof, but the rule further provides that “the surrogate, on appeal from his court, may, by order, allow further time for the doing of any acts above provided to be done on such appeal; ” and it cannot with any degree of consistency be urged that the power to extend the time in which to serve a case, granted by this rule, must be exercised before the expiration of the time for so doing. The only reasonable construction to be placed upon the provision of rule 32, above quoted, in view of the general mode of procedure in other courts and of the objects to be attained, viz.: a careful protection and supervision of the rights of all the parties, is that the surrogate’s court is clothed with ample authority thereby to permit a party, at any time after an appeal is taken, to serve a case, if the application is seasonably made therefor, and good reason shown. An order should be accordingly made permitting the contestants, on or before the 10th day of February, 1894, to serve their proposed case, and to fully perfect their appeal by filing and serving the requisite undertaking on appeal and upon paying $10 costs of opposing this motion to the petitioner.

Ordered accordingly.


author: Boleman, S.

text:
    In the Matter of Edward C. Beirne, as Guardian, etc.

      (Surrogates Court, Orange County,

      Filed January, 1894.)

    Guardian and Ward—Gift.
    Where the intention of the guardian to make certain gifts to his ward has been fully consummated by a complete delivery, he cannot, upon his accounting, be credited for them as for moneys expended for the benefit of the ward.
    Proceedings for an accounting by a guardian.

      C. JE. Ouddeback, for minor; John J. Beattie, for guardian.
   Boleman, S.

Edward C. Beirne was appointed general guardian of the minor September 8, 1891. Mr. Beirne is a brother of the minor’s mother. In the month of November, 1876, he purchased five shares of the stock of the Orange County Building & Loan Association, in his name as guardian of the said Mulligan, and, at various times thereafter, and prior to November, 1888, he made divers other payments required by the rules of the association, (when the same were not made by the parents of the minor), upon said stock, which, with the amount paid at the time of purchasing the stock, ammounted, in all, to the sum of $279.27. When the stock matured, he caused himself to be legally appointed the minor’s guardian, and received, as such guardian, $1,000 from the association, the then value of said shares of stock. This sum the guardian invested upon bond and mortgage, which he still holds. Upon this accounting Beirne seeks to credit himself with the $279.27, paid by him upon the building and loan association stock, to which objection is made on behalf of Mulligan ; it being claimed that such payments were intended to be gifts to him. It was evident, upon the hearing, that the feelings of the parties towards each other have changed from what they formerly were; and it is now necessary to determine the purpose, and the legal effect, of the acts of the said Beirne in connection with said stock The payments were voluntarily made, with the knowledge that the minor had no other property. When made, they became, not, deposits, but an interest in the stock of the association, which, by his own act, were made to belong, upon the books of the association, to him, as guardian of his nephew. He thus parted with the dominion over the property represented by the stock, except in the capacity of guardian. No entry, in the nature of an account, was made of the payments, and they were not made for the purpose of protecting property belong to the minor, unless this stock is to be considered the property of the minor, and, being so considered, it could not, at the same time, be the property of Mr. Beirne; nor were they made for necessities, required for the maintenance of the minor. If Mr. Beirne had died during the minority of his nephew, leaving the stock, and the payments made by him, in the association as they stood, before maturity, I think no one could have successfully questioned the ownership of the minor. These facts, supported by the further fact, that Mr. Beirne himself drew the fund from the association, and invested the whole of it in a mortgage for the minor, clearly indicate to my mind an intention on his part, at the time of making the payments, to make a gift to his nephew, a purpose which he cannot now change, such intention having been fully consummated by a complete delivery, whereby he divested himself of all title thereto, and, being gifts, he cannot now be credited for them upon this accounting, as for moneys expended for the benefit of the minor.

Decree to be entered in accordance with foregoing opinion.


author: Earl, J.

text:
    George H. W. Curtis, App’lt, v. The Wheeler & Wilson Manufacturing Company, Resp’t.

      (Court of Appeals,

      Filed March 13, 1894.)

    1. Appeal—Direction op Verdict.
    In the absence of an exception to the direction of a verdict, the question of its propriety may not he considered on appeal.
    3. Same—What brought up.
    An appeal from the judgment, where a verdict is directed and exceptions are ordered to be heard in the first instance at the general term, brings up nothing for review except questions presented by the exceptions.
    Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order made June 29, 1892, which overruled plaintiff’s exceptions and directed judgment in favor of defendant upon a verdict directed by the court.
    The nature of the action and the facts, so far as material, are stated in the opinion.

      Howard A. Sperry for app’lt; Miron Winslow for resp’t.

       Affirming 47 St. Rep. 187.

   Earl, J.

The plaintiff sought in this action to recover from the defendant the balance alleged to be due to him for the purchase price ot a patent sold and assigned by him to it. The allegations of the complaint are put in issue by the answer, and the defendant also alleged a counterclaim for which it prayed judgment. The action has been twice tried. Upon the first trial the plaintiff recovered a verdict, and upon appeal to the general term from the judgment entered thereon the court reversed the judgment, and granted a new trial, on the ground that the verdict of the jury was against the weight of evidence. The causé came to trial a second time, and during the progress of the trial the plaintiff took several exceptions to the rulings of the trial judge upon questions of evidence. At the close of all the evidence the counsel for the defendant requested the court to direct a verdict in its favor for the amount of its counterclaim, and such a verdict was directed. The plaintiff took no exception to the direction of the verdict, and the court ordered the exceptions (there being none except those above mentioned) to be heard in the first instance at the general term, and judgment was ordered for the defendant upon the verdict, and this appeal is from that judgment

We have considered the exceptions taken by the plaintiff during the progress of the trial, and it is very clear that none of them point out any error, and, indeed, none of the exceptions were orally argued before us.

The sole contention of the plaintiff’s counsel upon the argument was that a verdict ought not to have been directed, and that the case should have been submitted to the jury. There is no exception which presents that question for our consideration. The plaintiff acquiesced in the direction of a verdict. If the evidence was conflicting and the plaintiff claimed that' he had made a case for the consideration of the jury he should have taken' an exception to the direction of a verdict. He strenuously contends, however, that his position is the same as if he had taken an exception to the direction of the verdict, and calls our attention to the case of Purchase v. Matteson, 25 N. Y. 211, as an authority for his contention. That case bears no analogy to this, and is not an authority here. There the Court directed a verdict subject to the opinion of the court at general term, and the practice there pointed out is applicable to such a case. Here no verdict was directed subject to the opinion of the court. The direction of the verdict was absolute, and the exceptions were ordered to be heard in the first instance at the general term. In such a case nothing is before the general term but the exceptions taken upon the trial • and as those exceptions were not well taken the judgment must be affirmed, with costs.

All concur.

Judgment affirmed.


text:
    Benjamin F. Gerding, Resp’t, v, John B. Haskin et al., App’lts.

      (Court of Appeals,

      Filed March 13, 1894).

    1. Brokers—Commissions.
    The broker is not entitled to compensation so long as there is an uncertainty in respect to the name of the proposed purchaser.
    2. Trial—Nonsuit—Grounds.
    Where no grounds are specified, the motion for a nonsuit is sufficient if it is apparent that the objection, made to plaintiff’s recovery, could not have been obviated if it had been particularly specified.

      Appeal from, judgment of the general term of the superior ■court of the city of New York, entered upon'an order made January 4, 1893, which affirmed a judgment in favor of plaintiff entered upon a verdict and also affirmed on order denying a motion for a new trial.
    This action was brought by the plaintiff to recover his compensation as a broker under the employment of the defendants to find for them a purchaser of their real estate situated in the city of New York.
    Defendants put in issue the material allegations of the complaint. Upon the trial plaintiff gave evidence tending to show his employment, the amount of his compensation and what he claimed to be performance of his contract. As to the performance, the only evidence for the plaintiff was that of himself and one Lewis. He testified that after his employment he went to Has-kin’s house and told him that he had a buyer for the property at his price, $110,000, and asked him how much he required to be paid on the contract; that Haskin replied, $25,000 on the delivery of the deed, $5,000 on the signing of the contract; and the next day he again went to Haskin’s house with Lewis and introduced Lewis to him and told him “he was the gentleman, who represented the buyers ; that Mr. Haskin said ‘all right,’ and wanted to know the names of the buyers,” and he gave him the names and he entered them in a memorandum book; that Mr. Lewis then told Haskin that he had $250 in his pocket and took it out, which.he said he would pay to him and take a receipt, and that any time he named he would draw the contract and pay him the balance of the $5,000, the deed to be delivered on the first of November ; that Mr. Haskin expressed satisfaction with the persons named as buyers ; that no one was present but himself and Lewis and Haskin, and that in this interview with Haskin he named eight persons as proposed purchasers of the real estate. It appears by his cross-examination that he was required to give a bill of particulars in this action, and that one of the persons named to Haskin as a buyer was not named in the bill of particulars, and that another one who was not named to Haskin was specified in the bill of particulars. Lewis testified that at the interview mentioned he told Haskin lie had a “syndicate which were willing to pay the $110,-000,” and that he “had $250 in cash and took the money out and offered it to him to pay a deposit and take his receipt for the same,” which Haskin, for reasons stated, declined then to take; that Haskin asked him “who the syndicate was that “ I gave him some of the names of the syndicate that we had at that time ; I don’t think the syndicate was full when I went there,” and then he gave the names of the persons who had then joined the syndicate, one of whom, at least, was not among the names mentioned by the plaintiff in his evidence. He testified further: “When I heard that the property was for sale we started in to form a syndicate to purchase it, and I got these gentlemen together, part of them, not all of them, on a Saturday evening in our office, and submitted the offer of $110,000 ; at least, submitted the price of $110,000 for the property. There was nothing paid in. Each one assented to subscribe for one share. They authorized me to go to Haskin and offer him $110,000 for the property, and to pay him $250 on the contract, or on the purchase of the property, and if Mr. Haskin wished any more money to call on Mr. Martin Walter and he would supply it. I was to draw on Mr. Walter for the $5,000.” He also testified that he was a member of the syndicate that he furnished the $250 which was offered to Haskin, and that no one else put up any money, and the list of proposed purchasers testified to by him differed materially from the list of names specified as purchasers by the plaintiff.
    The defendants, testifying on their own behalf, denied the employment, the agreement for compensation and the performance of the contract by the plaintiff.
    At the close of the plaintiff’s evidence the defendants moved to dismiss the complaint, specifying no grounds, and their motion was denied. At the close - of all the evidence on both sides they again moved for the dismissal of the complaint and for the direction of a verdict in their favor, specifying no grounds for their motions, and the motions were denied.
    The evidence was then submitted to the jury and they found for the plaintiff, and from the judgment in his favor the defendants appealed to the general term and to this court.

      Isaac E. Maynard & Abel Crook, for app’lts; C. Bainbridge Smith, for resp’t.

       Reversing 49 St. Rep. 626.

   Earl, J.

Before a real estate broker can recover his compensation, he is bound to prove that he found a purchaser and produced him to his principal, ready and willing to purchase the real estate upon his terms. Rapalje on Real Estate Bro. § 72; Coleman v. Garrigues, 18 Barb. 60; Martin v. Bliss, 57 Hun, 159; 32 St. Rep. 930; Wylie v. Marine Nat. Bank, 61 N. Y. 416.

It is conténded on behalf of the defendants, that the plaintiff utterly failed to show that he produced any purchaser to the defendants, ready and willing to enter into contract with them. They were entitled to know who the proposed purchasers were, and with whom they were expected to enter into contract; and so long as there was uncertainty as to the purchasers, the plaintiff could not claim performance of his contract and demand his compensation.

Now, from the evidence furnished by the plaintiff, who can say who were the purchasers ? It is impossible to say from his evidence. Although he furnished certain names to Haskin as the purchasers, yet when he came to furnish his bill of particulars he omitted one of those names and inserted another. The names of the members of the purchasing syndicate as given by Lewis differed materially from those given by the plaintiff to Haskin at the time of the interview with him: and Lewis testified that the syndicate was not full; and, therefore, the persons who were to make the purchase were not then known. He was then forming a syndicate for the purchase of the property, and he got a portion of the persons he named together in his office, and each one of them consented to subscribe for one share. But it does not appear what proportion of the property or of the purchase price constituted one share. The whole matter seems to have been incomplete, nebulous and uncertain. Neither the plaintiff nor Lewis knew who the purchasers were really to be, and they did not produce them to Haslcin or name to them who they were. Before the syndicate of purchasers was fully formed the defendants sold the real estate to another person, and that ended their relations with the plaintiff. Sussdorf v. Schmidt, 55 N. Y. 319; Wylie v. Marine Nat. Bank, 61 id. 415; Sibbald v. Bethlehem Iron Co., 83 id. 378.

Therefore, without examining other objections to the plaintiff's recovery, we think he utterly failed to show that he had performed his contract, and hence he should have been nonsuited at the trial.

It is now claimed, however, that the motions for a dismissal of the complaint and the direction of a verdict were ineffectual, and are not now available to the defendants because no grounds for the motion were stated. A motion to direct a verdict for the defendant is in substance a motion for a nonsuit, and must be governed by the same rules. Bissel v. Campbell, 54 N. Y. 335. It is undoubtedly the general rule that a motion for a non-suit is ineffectual unless the grounds upon which it is based are specified. The defect in the plaintiff’s case should be pointed out, so that he may supply it if he can. Booth v. Bunce, 31 N. Y. 246; Binsse v. Wood, 37 id. 525; Thayer v. Marsh, 75 id. 340; Sterrett v. Third Natl. Bank of Buffalo, 122 id. 659; 34 St. Rep. 241; Quinlan v. Welch, 141 N. Y. 458; 56 St. Rep. 680. So much is required by good faith and fair practice, and so much is due to the orderly administration of justice. But where no grounds are specified for a non-suit, the motion is sufficient if it be apparent that the objection made to the plaintiff’s recovery could not have been obviated if it had been particularly specified. To such a case the rule does not apply, as the plaintiff suffers no harm and is not misled because the grounds were not particularly brought to his attention or to the attention of the court. In a case like this, we think, the motion to nonsuit without specifying grounds should be held effectual. The plaintiff was a witness on his own behalf, and we must assume that he gave all the evidence he could. He assumed to state the whole transaction between himself and Haslcin, and we cannot assume that if the ground for a nonsuit now relied upon had been stated he could have changed- his evidence, Lewis seems to have been the principal mover in forming the syndicate of purchasers, and he testified fully about that matter and about the interview which took place with Haslcin. He said that the syndicate was not complete; that really all the purchasers were not known at the time of the only interview had with Haslcin. It cannot be assumed that his evidence could have been fuller, more certain or more favorable to the plaintiff. We cannot, therefore, see how the plaintiff could honestly, fairly or truthfully have made any better case for a recovery if his attention had been called to the ground for a nonsuit now relied upon.

Therefore, as the plaintiff wholly failed to show performance of the contract on his part within the rules of law applicable to such a case, he should have been nonsuited; and the judgment must, therefore, be reversed, and a new trial granted, costs to abide event.

All concur.

Judgment reversed.


author: Andrews,Ch. J,

text:
    Abraham D. Covert, Resp’t, v. John P. Cranford et al. App’lts.

      (Court of Appeals,

      Filed March 13, 1894.)

    1. Negligence—Liability op contractos.
    A contractor, doing a legal and authorized act on the owner’s premises is not liable to the adjacent proprietor for remote consequential injuries, not naturally to be anticipated but flowing from occult causes which could only be conjectured by men of science or disclosed by actual experiment.
    .2. Same.
    But he is liable to the adjoining owner for the damages caused by the method adopted in performing such act.
    Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an ordér made -December 12, 1892, which affirmed a judgment in favor of plaintiff entered upon a verdict and also affirmed an order denying a motion for a new trial.
    This action was brought to recover damages for injuries to a pond belonging to plaintiff, alleged to have been caused by evacuations made by defendants in the construction of an aqueduct.
    The facts, so far as material, are stated in the opinion.

      Jesse Johnson, for app’lt; Benjamin W: Downing for resp’t.

       Reversing 50 St. Rep., 516.

   Andrews,Ch. J,

The defendants in the year 1890, under a contract with the city of Brooklyn, constructed a conduit running in an easterly and westerly direction, connecting certain ponds at Massapequa, Long Island, with the Ridgewood reservoir, in aid of the water supply of the city. The conduit line crossed the valley of James brook, a small stream running northerly and southerly, which suppliéd a pond of the plaintiff on his premises about a mile below the point where the conduit crossed the stream, which furnished the water power for a small mill on the plaintiff’s land; which had existed there for more than fifty years. The defendants excavated a trench for the conduit from twelve to twenty-two feet in depth. The evidence tends to show that as the excavation approached the channel of the stream the water in the plaintiff’s pond began to lower, and that since its completion the pond has been substantially drained so as to destroy the water power, and the plaintiff has sufferd a serious injury. In building the conduit across the stream the water was temporarily diverted from the channel. But after the conduit was covered and the bed of the stream at the point of crossing was restored to its original state, the pond as has been stated did not retain the water flowing thereto, and the evidence justifies the inference that the water of the pond passed by underground drainage through the earth into the channel of the conduit and was lost to the plaintiff. It has been held that such an inquiry is actionable. In Dickenson v. Canal Co., 7 Exch. 282. the defendant sunk a well on the premises and pumped therefrom large quantities of water to supply its canal, whereby water that had already reached a surface stream was diverted by percolation from the plaintiff’s dam, and the court decided that an action for damages would lie. In the case of Van Wycklen v. City of Brooklyn, 118 N. Y. 427 ; 29 St. Rep. 790, the second division of this court assumed, if it did not decide, that the same principle applied in the case of driven wells which sucked away the waters from a running stream after they had been collected therein. It is not necessary in this -case to consider whether there are qualifications of this rule. See remarks of Pollock, C. B., in Dickenson v. Canal Co., and opinion of Lord Wensleydale in Chasemore v. Richards, 7 H. of L. Cases, 380. The point here is whether the defendants, the contractors for building the conduit, are liable to the plaintiff.

It is conceded that the conduit was laid upon the lands of the city of Brooklyn under a contract with the city. The contract is not in evidence, but the court on the trial ruled, upon the request of the defendants, that the jury could not infer that the conduit was constructed contrary to the terms of the contract. The plaintiff acquiesced in this ruling, and the fact inferable from the evidence is that the defendants in constructing the conduit, and in the manner of executing the work, were complying with their contract with the city. We think the defendants are liable for any injury sustained by the plaintiff, resulting from the actual interruption of the flowing of the stream during the time they were engaged in constructing the conduit across it. It was a patent violation of the property rights of the lower proprietors, not justified by any necessity so far as the record shows. The maxim aqua currit el debit currere, says Denio, J., in Bellinger v. N. Y. C. R. R. Co., 23 N. Y. 42, “absolutely prohibits all individuals from interfering with the natural flow of water to the prejudice of another riparian owner upon any pretence, and subjects him to damages at the suit of any party injured, without regard to any question of negligence or want of care.” In constructing the conduit the defendants were not mere servants or laborers. They doubtless had a discretion and could exercise an independent judgment in the method by which the conduit should be carried under the bed of the stream. They knew, or were bound to know, that they had no right to cut off the flow of water in the stream as against riparian owners below. A wrongdoer cannot interpose the direction of another to execute a plain and palpable wrong. But the injury sustained during the temporary interruption of the flow of the stream, while the conduit was being laid across it, is comparatively of small moment. The main question is whether the contractors are liable for the injury caused by the conduit in draining the pond in the manner before stated. Upon this point we are of opinion that for this injury the owners of the land, by whose direction the conduit was constructed, are alone liable. There was evidence that the defendants commenced the work of building the conduit in September, 1890, and completed it the following November. The jury might have so found. This action was commenced in May, 1891. The trial judge in substance ruled that the defendants were liable for the injury caused by the draining of the pond up to the commencement of the action, on the theory that as the defendants constructed the conduit, and made the trench into which the water, of the pond found its way by underground percolation, they were liable, and that it was immaterial, whether the injury was suffered during the time they were engaged in performing the contract or after its completion. The rule upon which the case vras submitted to the jury would render the defendants liable for recurring damages for the time, or until the cause of the damage was removed, or the city shall condemn the water rights of the plaintiff. We think such a principle has no foundation in the law. The construction of the conduit was, in itself, a perfectly lawful act. It became actionable as to the plaintiff for reasons which lay outside of the realm of observation, and from causes which the defendants had no reason to anticipate. The conditions happened to be such that the conduit did operate to drain the water of the plaintiff’s pond, a mile away. It would be a unreasonable rule which should subject a person doing an act on another’s premises, under his authority, lawful in itself, to damages to the proprietor of adjacent lands, for consequential injuries, remotely resulting from the act, not naturally to be anticipated and flowing from occult causes which, to put it in the strongest way, could only be conjectured by men of science or disclosed by actual experiment. When the owner of land, in such case, ascertains that injury is being done, he may be bound to act. In the case of nuisance it is said, that “a party who has erected the nuisance will sometimes be answerable for its continuance after he has parted with the possession of the land. But it is only where he continues to derive a benefit from the nuisance as by devising the premises or receiving rent,” Bronson, J., in Mayor, etc., v. Cunliff, 2 N. Y. 174, or where he has conveyed with covenants for the continuance of the nuisance. Waggoner v. Jermaine, 3 Den. 306. The plaintiff’s remedy is, we think, exclusively against the city as the owner of the lands on which the conduit was laid, and the real author of the wrong for the consequential damages from the draining of the pond. The rule which would make the contractors liable would subject innocent parties, who cannot control and have no power to interfere with the conduit, to liability for acts such as the owners of the property may lawfully direct and which involved injury to another, only because it turned out that the water of the pond communicated by hidden ways through the strata of the earth with the trench constructed by the defendants.

The judgment should be reversed and a new trial ordered.

All concur.

Judgment reversed.


author: Bartlett, J.

text:
    The People, Pl’ff, v. John Y. McKane et al., Def'ts.

      (Supreme Court, Kings County Oyer and Terminer,

      Filed March 21, 1894.)

    Pleadings—Demurrer—Criminal Law.
    A demurrer to an indictment for conspiracy to commit a felony charging overt acts which show that the felony was actually committed must he sustained on the ground that the misdemeanor was merged in the felony.
    The indictment charged a conspiracy on the part of John Y. McKane and twenty-one others to violate the provisions of the election law by rendering the registry lists of the town of Grave-send inaccessible to the public for examination or copying.

      James & Thomas H. Troy, (James Troy, of counsel), for deft McKane; Edward M. Shepard & Benjamin F. Tracy, Deputy Attorneys General for People.
   Bartlett, J.

The indictment charges the defendants with conspiracy to commit certain crimes which are felonies under the election law.

It also alleges that the defendants, in pursuance of the conspiracy, actually did commit the felonies which they had conspired to commit. The case, therefore, squarely presents the question, whether under the law of the state of New York, a conspiracy to commit a felony when executed by the conspirators does not merge in the felony so as to prevent a prosecution for the conspiracy itself.

To understand the New York decisions on this question it is necessary to refer to the case of Commonwealth v. Kingsbury, 5 Mass., 106, decided by the supreme judicial court of Massachusetts in the year 1809. There it was held that a conspiracy to commit a felony which had actually been committed could not be punished as an offense distinct from the felony. Chief Justice Parsons, however, went further in his opinion and declared that the same rule applied to an executed conspiracy to commit a misdemeanor.

The latter doctrine has not been génerally approved; but so far as I have been able to discover, whenever the question has been touched upon by the higher appellate courts in the state of New York, the judges have assumed it to be the law that in the case of an executed conspiracy to commit a felony, the conspiracy, which is a misdemeanor merges in the felony.

In 1827, the well known ease of Lambert v. People, 9 Cow. 578, was decided in the court of errors by the casting vote of the president in favor of reversing the judgment below. The principal opinion for reversal was delivered by Senator Spencer, who cited the Kingsbury case in Massachusetts as a correct exposition of the law and showed (on page 595) that the case of Lambert fell within the doctrine that a conspiracy to commit an offense of a higher grade than a misdemeanor merges in the higher offense when committed, because Lambert was indicted for a conspiracy to cheat by false pretences and that was an offense of higher grade, “ it is urged,” he said, that this indictment charges an executed conspiracy ; that the first agreement to commit the offense and every other preliminary and intermediate step is absorbed in the actual commission of it.

I am deeply impressed with the weight of this objection. I cannot conceive how a crime can be split up with its several parts, and each of those parts made the subject of accusation. If a man committed a theft by robbing I cannot understand how the two can be separated and the defendant tried for the theft alone. An indictment for murder always charges that the defendant made an assault on A. B., and him murdered with malice aforethought. If a general verdict of guilty were rendered on such an indictment, would it enter into the head of any man to inflict punishment merely for the assault? That assault is part of the crime and is absorbed in it. So in this case, the agreement to cheat, the false tokens or false pretences used, are all concentrated and collected in the offence of cheating.”

The minority, opinion in the Lambert case was delivered by senator Stebbins and it is to be noted that while he dissented from the Massachusetts decisions in Commonwealth v. Kingsbury, 5 Mass. 106, so far as it intimated that an executed conspiracy merged in a misdemeanor which was its object, he expressly declared that the court properly held that a conspiracy to procure goods in a manner amounting to larcency was merged in the felony when executed, 9 Cow. page 621, so that both reported opinions in Lambert v. People assume the correctness of the doctrine that . an executed conspiracy to commit a felony merges in the felony.

In 1830, we find the same assumption in the opinion of Marcy, J., in the celebrated case of the People v. Mather, 4 Wend. 229, arising out of the alleged abduction of William Morgan.

He rejected the view that a conspiracy to commit a misdemeanor was merged in the misdemeanor when committed, saying that where two crimes were of equal grade there could be no legal technical merger, but his language shows that he deemed the doctrine of merger applicable where the crime was of a higher grade than the conspiracy and the object of the conspiracy was fully accomplished.

Both these cases were decided before the law made it essential in most indictments for conspiracy to allege the commission of some overt act in furtherance of the conspiracy and it was suggested on the argument of the case at bar that this change in the law of conspiracy has had the effect to do away with the doctrine of merger, so far as it is sanctioned by these two decisions. That view cannot be entertained however in reference to the case of Elkin v. People, 28 N. Y., 177, which was decided by the court of appeals in 1863 when the law in respect to alleging and proving overt acts was substantially the same as it is now. In the Elkin case, Davies, J., delivering the opinion of the court, distinctly assumed that the doctrine of merger was still in force and said that no felony being established by the proof, “ No merger of the misdemeanor in it did or could take place.”

It is argued that the cases which I have cited are not binding as authorities inasmuch as what was said in the opinions in regard to the merger of a conspiracy in an executed felony was not necessary to any one of the decisions actually rendered and that the observations on this subject are therefore to be deemed obiter dicta. It is not clear that it is true of the Lambert case, but even if it be true of all of them still the uniform expression of the higher courts of the State on the question under consideration are not to be disregarded by the courts of first instance. Such utterances furnish the latter with the most trustworthy guides to a correct decision, in the absence of direct precedents.

While there is, no doubt, a tendency to abandon the strictly technical rule of merger in England and in some of the States, and while it appears to have been actually abandoned in Massachusetts, Commonwealth v. Walther, 108 Mass. 309, Mr. Wharton, in the ninth edition of his well known work on American Criminal Law, cites the Waliher case and the Elkin case as recognizing its existence in Blew York, § 1344. And the same learned commentator, in his earlier treatise on Precedents of Indictments, referring to conspiracy to commit felonies and citing the case of the People v. Mather, says “ Care must be taken in preparing an indictment for this branch of conspiracy to charge the offence as merely an unconsummated attempt. If however in an overt act, or in the body of the count, the commission of the actual offence be charged, the conspiracy merges in the felony and the indictment is incapable of supporting a conviction.” Precedents of Indictments, etc., 3 Ed. S. 607.

Whatever may be the ultimate decision upon this question when directly presented to the tribunal of last' resort it seems to me clearly the duty of a trial court to accept and apply the doctrine of the merger of a conspiracy in an executed felony as sanctioned in the opinion delivered in the cases cited in the court of errors, in the old supreme court and in the court of appeals. The people have the right of appeal from an order sustaining a demurrer to an indictment and it is far better that this question should be passed upon by the general term and court of appeals beforehand than after a long trial the labor of which would be wholly wasted if the judicial opinions to which I have referred are correct expositions of existing law.

The demurrers to the indictment are sustained.