author: Dykman, J.

text:
    Charles H. Southard, App’lt, v. John J. Curley and Jeremiah M. Brosnan, Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    Contract—Sale of building.
    The action was brought for breach of a written contract for the sale of a building. Defendants alleged that they agreed for an option to purchase within thirty days, but did not absolutely agree to purchase the same, and that the writing did not express the agreement made. The evidence on this point was conflicting. Held, that it was not necessary to reform the writing, but when the jury found that the parties did not make such an agreement as was expressed in the writing, the defendants were entitled to a verdict.
    Appeal from a judgment rendered on a verdict for defendants, and from an order denying a motion for a new trial.
    The action was brought to recover $9,000 damages, for breach of contract. The contract in question is in writing, and on demurrer was held to be an absolute contract of purchase by defendants. The trial judge also so held.
    The defendants, after the decision on the demurrer, set up an alleged mutual mistake, alleging that the real intention was merely to give the defendants an option on the property in question.

      Horace Secor, Jr., for app’lt; Charles H. Morgan, for resp’t Curley; August Kohn, for resp’t Brosnan.
   Dykman, J.

In his complaint in this action the plaintiff stated that he was the owner of the Mammoth Hotel at Rockaway Beach and that after he had torn down and removed a part of the building the defendants in this action entered into a written agreement with him to purchase the portion of the building which remained standing with certain appurtenances for the sum of $31,-000 to be paid in thirty days, and paid one hundred dollars on account of the purchase money; that the defendants have failed to consummate their agreement to his damage of $9,000, which he claimed to recover in this action.

For a defense to the action the defendants set up that they agreed for an option to purchase the building and made no absolute agreement to purchase the same, but that the plaintiff agreed to give them the option to purchase the building in thirty days, and that the writing did not express the agreement made by the parties.

The parties went to trial upon that issue at the circuit and the jury rendered a verdict for the defendants, and the plaintiff has appealed from the judgment entered upon the verdict and from the order denying a motion for a new trial upon the minutes of the court.

Upon the trial the plaintiff introduced the written agreement and- some letters between the parties, and then the defendants were examined as witnesses in their own behalf and stated the agreement according to their answer, which the plaintiff denied.

Such contradictory evidence was submitted to the jury in a faultless charge and the jury found for the defendants. Evidently an appellate tribunal finds no room for interference in this case.

The defendants did not seek to reform the written contract, but said they did not make it. They were willing to abide by the agreement which they said they made, and which the jury must have found they made, but they said there was a mistake in reducing the agreement to writing. It was not necessary, therefore, to reform the writing. If the jury found that the writing expressed the agreement, the verdict must have been given to the plaintiff, but when the jury found that the parties did not make such an agreement the defendants were entitled to the verdict.

The j udgment and order denying the motion for a new trial should, therefore, be affirmed, with costs.

Pratt, J., concurs; Barnard, P. J., not sitting.


source: Caselaw Access Project

author: Pratt, J.

license: Public Domain

text:
    Ida K. Helwig, Resp’t, v. The Mutual Life Insurance Company of New York, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    1. Instjbance (life)—Evidence—Statement of attending physician.
    Where a policy of life insurance requires that the proofs of loss he accompanied by the statement of the attending physician, such statement cannot be used as evidence against the claimant under the policy.
    2. Same.
    The application' contained a statement that the last physician who attended the applicant was Dr. L. It appeared that he was attended at a later date by Dr. F. The court refused to direct a verdict for defendant on this ground, but instructed the jury that if such attendance was for a real or supposed disease, the verdict should be for defendant. Held, no error.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion-for a new trial.
    Action upon a policy of life insurance.
    August 17, 1887, the plaintiff’s husband insured his life for the benefit of plaintiff, in the defendant’s company, for the sum of $5,000. December 26, 1887, he died from the effects of poison taken by him while insane, with suicidal intent It was admitted by the defendant that the deceased was insane when the act of suicide was committed. It defends, however, upon the ground that the deceased’s statements in the application for the policy were warranties, and that there was a breach of such warranties.
    The breach relied upon by the defendant relates to. the 30th question in the application for insurance, which reads:
    “ Q. When last attended by a physician, and cause. A. Six years ago; measles.”
    “ Q. Hame and address of the physician. A. Dr. Langman, New York.”
    The only untruthfulness complained of is, that subsequent to his treatment for measles, as above answered, other physicians attended him.
    On this point defendant claims that the certificate of Dr. Fuhs which accompanies the proofs of loss, and which states that he attended Helwig a year and a half prior to his death for gastralgia, concludes the plaintiff.

      Robert Sewell, for app’lt; A. Simis, Jr. (Max Brill, of counsel), for resp’t.
   Pratt, J.

We do not perceive any principle upon which the statement of the attending physician, accompanying the proofs-of death, can be regarded as legal evidence in favor Of either party to the action. Ordinarily it may be said that a party who makes use of an affidavit thereby holds its forth as truthful. But we think the present case in an exception to the general rule, for it was a condition of the policy that the proofs of loss should be accompanied by the statement of the physician who attended the deceased in the last illness.

The questions were upon a printed blank furnished by the company. It is not to be supposed that the claimant could control the responses, or was in any degree responsible, for their correctness. Had the forwarding of the physician’s affidavit been a matter of choice with the claimant it might well be argued that the statement was put forward as truthful and was evidence against the party using it. But as the claimant had no option and was compelled by the contract to forward the statement, it cannot be used as evidence against her.

The application contained a statement by the deceased that the last physician by whom he was attended was Dr.Langman. Evidence was given to the effect that Dr. Fuhs attended him at a later date and the court on that ground was asked to direct a verdict for defendant That request was refused, but the jury was instructed that if the attendance was for a real or supposed disease the verdict should be for defendant.

We think the limitation was a proper'one. The subject brought to the attention of the applicant by the question was as to the physician last attending him for a disease. If a physician attended on the applicant to urge him to accept a nomination for an office, while within the literal terms of the question, it would not be within its real scope.

The evidence gave some ground to suppose that at the instance of a third party a physician called upon the deceased who declined to take his medicines and care. We think the circuit judge correctly held that was not such an attendance as to violate the warranty.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


author: Barnard, P. J.

text:
    The People ex rel. The Society of The New York Hospital, App’lt, v. Elijah Purdy et al., Assessors, Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed Dec. 8, 1890.)

    Taxes—Exemption—New Yobk Hospital.
    Relator’s farm, which is not self supporting,supplies the hospital with vegetables, but occasionally certain insignificant articles of produce which could not be advantageously used have been sold and the proceeds applied to the support of inmates of the hospital. Held, that the proceeds of such sales were not income within the meaning of chap. 462, Laws 1889, so as to deprive the society of exemption from taxation under that act, nor does the society waive its exemption because it charges some patients who are'able to pay and uses the money for the support of those who are not.
    Appeal from order of special term, dismissing writ of certiorari to review assessment for taxes for the year 1889, on the farm of relator at White Plains.

      Martin J. Keogh, for app’lt; L. O. & W. P. Platt, for resp’ts.
   Barnard, P. J.

By chap. 466, Laws of 1875, the real and personal property of the relator in the city and county of Hew York was made exempt from taxation if no income was derived from it, and the same was used exclusively for the purpose for which the relator was chartered.

By chap. 462, Laws of 1889, this exemption was extended to property “ wherever situated,” but under the same term and condition. The hospital has a farm of land in Westchester county exclusively used for the charter purposes of the society. The farm is not self-supporting, and food is sent from Hew York for the use of the patients beyond the products of the farm and the farm supplies the Hew York Hospital with vegetables. There areoceasionally sales made of certain insignificant articles of produce, such as cabbage, pigs and male calves, the proceeds from which have been applied to the support of the inmates of the hospital buildings on the farm.

The sole question is whether this is income within the meaning of the statute. The exemption as to money corporations depending on “ profits or income was held not to apply where there were receipts, although the receipts were less than the expenses. People v. Supervisors of Niagara County, 4 Hill, 20.

The words profit or income are said by the court to be frequently used synonymously, but “ net income profits ” and “ clear income” are also used in the statute. The court decided the case, however, on what was deemed a legislative intent in the use of the words “ profit or income.” A later section of the act was deemed to exclude “ net profit ” or “ clear income ” as inapplicable to the case.

The case of The People v. Supervisors of N. Y., 18 Wend., 605, held that as to moneyed and manufacturing corporations deriving an income on their capital, the exemption classed under the words “profits or incomes” included any incomes though less than the expenses. The present case is very different. The hospital is not a stock company, but a charitable one. The buildings in the city of Hew York are exempted by law from taxation, and by this amendment the exemption is extended to lands elsewhere. The farm is used solely for the purposes df the charity. The cost of raising the produce exceeds the value of the product, and it is almost entirely used in the institution of the hospital.

The case is very analogous to Betts v. Betts, 4 Abb. N. C., 317, where it was held that the sale of a few simple articles manufactured by the blind inmates of an institution for the blind were not to be deemed a source of income.

The evidence in this case shows that all the proceeds of the farm go to the support of the relator’s patients, and this result de- • termines the character of the income received from the farm as a whole and not from a few sales of property which could not be advantageously used by relator. If the hospital had permitted this property to be wasted, no exemption would be waived or forfeited. Temple Grove Seminary v. Cramer, 98 N. Y., 121.

The hospital does not waive its exemption because it charges some people who are able to pay. Whether this fact makes the hospital other than a public charity, and thus subjects its buildings in Hew York and the farm as well to taxation, is fully discussed and decided in City of Philadelphia v. Penn Hospital, Leg. Int., February 14, 1889, page 70.

The case shows that all its income from property and donation is used for the purpose of the charity and the money received from pay patients is wholly applied to the support and attendance on those who cannot pay. The hospital is at present quite heavily in debt and has to meet many thousands of applicants every year. . There is a large excess of disbursements over receipts of board for patients in 1888, amounting to $128,994.50.

The order should, therefore, be reversed and judgment given that the farm is exempt from taxation, with ten dollars costs and disbursements on appeal.

Barnard, P. J., and Pratt, J., concur.


text:
    Charles White, an Infant, App’lt, v. The Wittemann Lithographic Company, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    Masteb and servant—Negligence—Employment op minor.
    The mere hiring of a child under thirteen, followed by an accident, is not sufficient to sustain an action. The violation of the statute is only evidence on the question of negligence; but other negligence and freedom from contributory negligence must be proven.
    Appeal from judgment in favor of defendant, entered on verdict, and from order denying motion for a new trial.

      James C. Church, for app’lt; L. C. Raegener, for resp’t.
   Barnard, P. J.

The complaint alleges that the defendant employed the plaintiff, who was at the time under thirteen years of age, and that he was placed at work on a dangerous machine without sufficient instructions as to its management. That by reason of the plaintiff’s ignorance of the machine he was injured. The proof as to the age of the boy is conflicting. He said when he was employed that he was fourteen years old. The defendant’s agent asked the boy for his father and mother upon this question of age. The plaintiff gave excuses why they could not come and the defendant hired the boy upon his own assurance as to his age. The case went to the jury upon the question whether or not the plaintiff was sufficiently instructed as to the management of the , machine and as to its dangerous "character if not properly attended to. The jury found for the defendant There was no negligence therefore proven except that involved in the employment of the boy, who was under the age of thirteen years, contrary' to statute.The question was not distinctly raised at the trial. The judge instructed the jury that a boy under fourteen years of age, there being a statute against employments under thirteen, could not avail himself of the fact against the defendant The judge refused to charge that it was immaterial whether the factory act was violated or not. An employment óf a boy under thirteen did not of itself give a right of action for an injury sustained in the service. The boy was competent; was fully instructed and may have been careless, for this follows the verdict. The only possible question therefore is whether negligence is made out by the mere hiring of a child under the statute age. The general purport that the employment of a minor upon dangerous machinery is not of itself proof of negligence is abundantly decided. De Graff v. N. Y. C. & H. R. R. R. Co., 76 N. Y., 125; Hickey v. Taaffe, 99 id., 204, and cases cited.

The principle of the decisions is that the minor takes the risk of the employment like an adult, only qualified by the fact that his judgment and care in the business shall be such only as is called for by a minor. Stone v. Dry Dock, etc., R. R. Co., 115 N. Y., 104; 23 N. Y. State Rep., 551. There have also been decisions that when an employment has been entered into with a minor, that proof of negligence on the part of the master and freedom from negligence on the part of the minor shall be proven to entitle a plaintiff to judgment A violation of a statute has been held to be insufficient of itself to establish negligence. The case of Brown v. Buffalo, etc., R. R. Co., 22 N.Y., 191, held that proof of an ordinance regulating speed was inadmissible as evidence upon the question of negligence of the company in maintaining a greater rate of speed than was permitted by the ordinance. McGrath v. N. Y. C. & H. R. R. R. Co., 68 N. Y., 522; Massoth v. Delaware & Hudson Canal Co., 64 id., 524.

The case under consideration is not like Willy v. Mulledy, 78 N. Y., 310. There a breach of duty causing damage was held to be actionable. The breach of duty in this case did, not occasion the injury of itself. The violation of the statute was evidence only upon the question, but other negligence and freedom from contributory negligence must be proven.

The question is not free-from doubt. The statute was designed to protect children from dangers before the maturity of judgment assumed from a certain age was acquired. The decisions however hold that a minor assumes the risk of the employment. The statute does not say that a mere employment of a child under thirteen and an accident afterwards shall support an action. The question whether a violation of law as to rate of speed is proof of negligence when the accident is caused by the rate óf speed is somewhat unsettled by the weight of authority being that the ordinance is only evidence upon the subject.

The judgment should therefore be affirmed, with costs.

Dykman and Pratt, JJ., concur.


text:
    George W. Didsbury, App’lt, v. J. Wesley Van Tassell, Sheriff, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    1. Sheriffs—Liability for escape.
    Where the escape of a prisoner from the limits is very certain to subject the sheriff to a law suit, as to which he had full notice, evidence that the sheriff and under sheriff supposed him to be constantly within the limits is sufficient to warrant the jury in finding that there was no assent to such escape.
    3. Same.
    In an action for escape the defense was that the prisoner returned to the limits before the summons was served. Plaintiff's witnesses testified to a return by a later train, while others testified that it was by an earlier one. The prisoner testified that he came by the early train and went to the later one to meet a friend and mingled with the outcoming passengers. Held, that a verdict for defendant was not against the weight of evidence.
    Appeal from judgment in favor of defendant and from order denying motion for a new trial.
    Action for the escape of Daniel E. Grlynn, a prisoner under execution against the person, from the jail limits of Dutchess county.

      Defense, that Glynn was hack within the limits before the action was brought. The summons was served at 6.55 P. M.
    Plaintiff proved by positive testimony that he returned on a train which left Fishkill at 8.26, and arrived at Poughkeepsie at 8.55 p. M., two hours after the summons was served. Defendant’s testimony tended to prove that he returned on a train which left Fishkill at 5.49 and arrived at Poughkeepsie at 6.20 p. M., thirty-five minutes before the summons was served.
    The plaintiff asked the court to direct a verdict for plaintiff on the ground that the defendant had not established a defense under the testimony, which motion was denied and exception taken.
    The court charged that plaintiff could not recover if Glynn returned on the 6.20 train.
    The plaintiff requested the court to charge that defendant had established no defense, and directed jury to give a verdict for plaintiff, because the defendant had not shown that the various escapes were not with his assent, which request was refused, to which refusal exception was taken.
    The defendant’s attorney asked the court to charge that plaintiff must show affirmatively that the summons was served while ■Glynn was off the limits; that it is not necessary that the sheriff show affirmatively that he was within the limits.
    The court so charged, to which plaintiff excepted.
    . Me Oroslcery & Seeger, for app’lt; Wood & Morsehauser (W. D. Dickey, of counsel), for resp’t
   Pratt, J.

The principal ground for reversal urged by appellant is that it was not affirmatively proven that the prisoner left the jail limits without the assent of the sheriff. A motion for non-suit was made on that ground and denied.

The testimony on that point was not entirely satisfactory and we would be better satisfied if it had been stronger; but it can hardly be said that there was no testimony on the subject It was testified that the sheriff and under sheriff supposed the prisoner was constantly within the jail limits. And in the details of the evasion as shown by the testimony, the jury may have some grounds to satisfy them that the sheriff was not a consenting party.

There can be no presumption that a public officer is guilty of a breach of duty. And where the evasion of the prisoner was very certain to subject the sheriff to a law suit, as to which it is shown the sheriff had. in this case full notice, the jury may have thought the sheriff’s assent so improbable that slight proof convinced them it did not exist

It is also urged that the verdict is opposed to the weight of evidence. We do not so regard it. Several witnesses testified that the prisoner came upon the late train which arrived in town after the summons was served. More witnesses testified that he came upon an earlier train. The prisoner and at least one other witness testified that he arrived upon the early train, and that, expecting to meet some one to arrive by the late train, he went there and mingled with the outcoming passengers.

This does something towards showing the plaintiff’s witnesses, may have been led into error, and testified honestly and mistakenly that the prisoner arrived by the "late train.

Judgment affirmed, with costs.

Barnard, P. J., concurs; Dyk'man, J., not sitting.


author: Dykman,' J.

text:
    The People, Resp’ts, v. William F. Sinell, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)
    Excise—Saxe op liquor without license.
    Defendant was convicted of a sale of liquor without license. He was a bottler of beer, and claimed to be treasurer of an incorporated social club which met at his house, and that such sales were made by the club to its members. It appeared that the members sometimes received the beer from defendant or his son, and paid them, and sometimes took the bottles-themselves and put the money in the glass. The court submitted the question whether the club was a scheme contrived for the evasion of the statute, and the jury returned a verdict against defendant. Held, no error; and that such defense is swept away by the decision in People v. ■ Andrews, 115 N. Y., 427; 26 H. Y. State Rep., 442.
    Appeal from judgment entered upon conviction of defendant for a violation of the excise law.
    The facts proved were as follows: That the defendant resided at Suffern, Rockland county, in the building owned by his wife. That a lower room of his house was the resort of men and boys, many of whom claimed to be members of the Suffern Social Club. The defendant claimed to be treasurer of the club and his son the steward. The defendant was a wholesale dealer and bottler of lager beer, carrying on this, business in the rear .of the building used by this club. Beer bottled by the defendant was brought into this so-called club room and partaken of by its frequenters. The beer drank in this club room was paid" for in the following manner: Certain witnesses testified that they got beer sometimes from the defendant and sometimes from the son,; and paid the person from whom they received it. Others testified that they helped themselves to the beer and put five cents in the glass for the bottle they drank.
    " G. P. Hoffman, for app’lt; G. Z. Snider, dist. att’y, for resp’ts.
   Dykman,' J.

The defendant was indicted for a violation of the excise laws by the sale of spirituous liquors, and upon a trial in the court of sessions in Rockland county he was convicted of the offense, and this appeal is from such judgment of conviction.

The offense was established upon the trial, but the defense was that the sales of liquor so proven were made by a social club, and not by the defendant.

Thereupon the public prosecutor charged and insisted that the club was a sham and a pretense devised and organized to evade the excise laws,‘and that question was submitted to the jury, and the verdict was against the defendant.

It is therefore to be assumed now that the jury found the club to be a scheme contrived for the evasion of the laws prohibiting the sale of spirituous liquors.

The decision of the court of appeals, however, in the case of The People v. Andrews, 115 N. Y., 427; 26 N. Y. State Rep., 442, sweeps away that defense, and leaves the defendant without any justification.

The conviction should, therefore, be affirmed.

Barnard, P. J., and Pratt, J., concur.


text:
    John Simpson, an Infant, Resp’t, v. Charles Griggs, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    Animals — Employee not liable eon injubies caused by vicious dog BELONGING TO EMPLOYE.
    An employer does not harbor a dog because he knows that his hired man has one in his family, which occupies a separate residence, and is not liable • for injuries caused by such dog where he has no personal knowledge of its evil qualities and no power over him.
    Appeal from judgment in favor of plaintiff, entered on a verdict, and from order denying motion for a new trial.
    Action for damages resulting from the bite of a vicious dog.

      IT. H. Hustis, for app’lt; Schlosser & Wood, for resp’t.
   Barnard, P. J.

The defendant and others occupied, under a lease from Mrs. Hunt, a farm in Wappingers, Dutchess county. There was a brick yard on the farm which was operated by Griggs & Co. They employed one Ward to work the farm. Ward occupied a farm house on the premises, and the defendant and his partner had the proceeds of the farm. Ward occupied the house as a hired man and the occupancy was a part of the compensation for the labor of Ward. Ward brought a dog with him when he went there, and this dog was kept by Ward at the house he occupied on the farm of Griggs’ land in Newburgh. While Ward denied his ownership of the dog, it is manifest that he did own him and bad absolute and sole control over him. The dog was vicious and bit the plaintiff. The defendant knew nothing of the bad disposition of the dog other than is implied from a knowledge by Ward that the dog was savage and would bite mankind. The defendant’s liability was based upon the proof that he employed Ward and Ward brought the dog with him, and that the defendant’s firm had the proceeds of the farm, and that the employee Ward occasionally used the dog to churn butter which was made for the farm. The employer does not harbor a dog because he knows that his hired man has one in his family which occupies a separate residence. Auchmuty v. Ham, 1 Denio, 495.

The defendant knew nothing of the evil qualities of the dog personally, and had no power over him.

The judgment and order denying a new trial should, therefore, be reversed, with costs to abide event.

Pratt, J., concurs; Dykman, J., not sitting.


text:
    Augustus A. Levey, Trustee, and Isaac Levey, App’lts, v. The Union Print Works, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    Mortgage—Demand op interest.
    Defendant issued bonds and executed a mortgage to Augustus Levey as trustee to secure them, which provided that if default in payment of interest continued for six months after." payment shall have been duly demanded,” the whole should at the option of the trustee become due. The trustee’s father took the whole issue of. bonds. The trustee demanded payment of the interest at a branch office of the defendant in New York city of his brother, who was treasurer, and who shortly after resigned, and no notice of the demand was given to the other officers of the company. Held, that no such demand as the mortgage called for was made.
    Appeal from, judgment dismissing the complaint
    Action to foreclose a mortgage or trust deed made by the defendant, a domestic manufacturing corporation, on certain real estate and personal property located in the city of Brooklyn,

      George W. Wingate and Augustus A. Levey, for app’lts ] J. II. V. Arnold, for resp’t
   Barnard, P. J.

On the 1st of January, 1889, the defendant-executed a deed of trust or mortgage to secure the payment of $25,000, made up of twenty-five bonds of $1,000 each. Isaac Levy took the entire issue. On the 1st of July, 1889, the interest was not paid on the bonds. The bonds and the trust deed, provide that a default in the payment of the interest, if such default continues six months after “ payment shall have been duly demanded,” shall, at the option of the trustee, render the whole payment due and payable. Edgar J. Levey was the treasurer of the company. The trustee and the treasurer were both sons of the holder of the bonds. The principal office of the company was in Brooldyn.

The company had also a branch office in New York. It was-at this office the demand was made, and of the treasurer, Edgar J. Levey. No notice was given either to the president or vice-president by the treasurer, who resigned his office as treasurer during the month of July, 1889. On the 1st of July, 1890, the company tendered the back interest for July 1, 1889, and that which became due January 1,1890. The trustee made the demand for his father upon his brother, and did not inform the officer of the company, but waited until the expiration of the six months, and then claimed to foreclose for the principal and interest. The court properly found under tnis state of facts that no demand, such as was called for by the mortgage, was made. The interest was payable at the company’s office, in the city of Brooklyn. It can be reasonably inferred from the resignation of the treasurer soon thereafter that there was some dissension between the company and the treasurer, in which his father and brother sympathized with him. The demand, so-called, was simply a device by which a form would be substituted for the substance of a demand, and thus an advantage be obtained by the holder of the bonds over the company. The discussion of the question, whether the provision as to default is a penalty or condition, and whether the holder of the bonds must signify his option to claim absolute default, is not called for where no demand was ever made.

The judgment should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur.


text:
    Theodore McKuskie, App’lt, v. John Hendrickson, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890)

    Costs—Appeal from justice’s court—Code Civ. Pro., § 3070.
    Plaintiff recovered judgment in justice’s court for thirty dollars damages * and nine dollars costs, from which defendant appealed and within fifteen days made an offer of judgment of five dollars which was not accepted. Ona new trial in county court plaintiff recovered judgment for thirly-five dollars. Held, that plaintiff was entitled to costs.
    Appeal from order vacating taxation of costs.
    On the 25th day of January, 1889, the plaintiff recovered a judgment against the defendant, injustice’s court, for a sum of money only, viz: Thirty dollars damages and nine and 20-100
    costs. The defendant duly appealed from such judgment to the county court of Queens county and demanded a new trial in the appellate court. Within fifteen days after service of the notice of appeal, the defendant served upon the plaintiff a written offer-to 'allow judgment to be rendered in the appellate court against him and in favor of the plaintiff for a specified sum, viz: Five
    dollars. The plaintiff did not accept the offer, nor did he make any offer. The action was re-tried in the appellate court on the 3d day of March, 1890, and the plaintiff obtained "a verdict for thirty-five dollars. Thereafter the clerk of Queens county, against the objections of the defendant, taxed the plaintiff's costs at $80.25, and docketed judgment against the defendant for $115.25. The county court, on motion of the defendant, vacated the taxation of costs, and reduced the judgment to thirty-five dollars.

      Henry A. Montfort, for app’lt; Harrison S. Moore, for resp’t.
   Barnard, P. J.

This action was tried before a court held by a justice of the peace and the plaintiff recovered a judgment for thirty dollars damages and $9.20 costs. The defendant appealed and demanded a new trial in the appellate court. Within fifteen days after the service of the notice of appeal the defendant offered to allow judgment for five dollars damages. The offer was not accepted. On the new trial the plaintiff recovered thirty-five dollars damages. The clerk taxed costs to the plaintiff and the county court set aside the taxation. The case seems a plain one under •§ 3070 of the Code. If an offer is made within the fifteen days after the service of the notice of appeal and not accepted the appellant must get a more favorable verdict to be entitled to costs of the appeal, “ otherwise the respondent is entitled to costs.” There are two sections which affect the question of costs upon appeals from justice’s judgment. One offer under § 3070 must be made before return and one under § 3072 after return filed. The first offer operates upon the entire costs of the appeal and the second only on the costs “ from the time of the offer ” which is not accepted and there is a failure to obtain a more favorable judgment. This offer comes within the § 3070. I presume that the affidavit does not show that the return was filed, but under either section the respondent was entitled to costs. The appellant did not reduce the recovery under § 3072 ; the appellant failed to receive a more favorable recovery and thus was not entitled to receive costs from date of the offer. The order setting, aside taxation should be reversed, with costs and disbursements, and the motion denied, with costs.

Dykman and Pratt, JJ., concur.


text:
    Charles Hardy, Resp’t, v. The New York Central & Hudson River R. R. Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    Railroads—Ejection of passenger for non-payment of fare.
    Plaintiff wished to go by the West Shore road from Haverstraw to New York and return, but could not get a ticket as the office was closed. The conductor procured an excursion ticket for him at the next station, 0., on receiving the regular fare. On his return he explained the matter to the conductor of that train, who told him to get aboard, but subsequently demanded fare from C. to Haverstraw, and on a refusal to pay put plaintiff off the train. Held, that having invited plaintiff on board, with knowledge of all the facts, the conductor was not at liberty to treat the ticket as one to O. only.
    Appeal from judgment in favor of plaintiff.
    Action to recover damages for wrongfully and forcibly ejecting plaintiff from one of defendant’s cars on which he had taken passage from Weehawken to Haverstraw.

      Ashbel Green and Herbert JS. Kinney, for app’lt; Wm. McCauley, Jr., for resp’t.
   Barnard, P. J.

CThe plaintiff wanted to go by the West Shore railroad from Haverstraw to New York and return the same day. The regular rate was one dollar. He could not get into the ticket office at Haverstraw, but entered the train without a ticket. He paid the conductor a dollar and stated that he wished an excursion ticket from Haverstraw to New York and return. The conductor promised to get such a ticket at Congers, a station- next below Haverstraw. The conductor left the train at Congers, went info the station and returned with a ticket which he tore in two and kept the part which entitled the plaintiff to go to New York and delivered the other part to the plaintiff. When the plaintiff wished to enter the train on his return to Haverstraw it appeared that the ticket was from Congers to New York and return. The man in charge of the door through which passengers had to pass to get to the train, when he saw the ticket, informed the plaintiff that the train did not stop at Congers. The circumstances surrounding the purchase of the ticket were stated to him and he went and saw the conductor who made the arrangement, and he replied “ all right; get aboard.” When the ticket was presented to the conductor he demanded the fare between Congers and , ' Haverstraw, and on a refusal by plaintiff to pay the same, the conductor ejected him from the train some eighteen miles south of Haverstraw. The conductor of the return train and who removed the plaintiff was not the same conductor who brought him to New York in the morning, but was the same who told the plaintiff to enter the train. The only issue he makes is that the plaintiff, according to his evidence, agreed to pay the extra fare from Congers to Haverstraw. The only real issue made by the conductor of the train from Haverstraw to New York was that he paid twenty-five cents back to the plaintiff and only got a ticket from Congers and return with the remainder of the one dollar he received. The jury have found for the plaintiff, and his narrative is the most reasonable. He could not get a ticket at Haverstraw by the omission of the company to open the ticket office. A ticket to Congers and return was not what he wanted. The case did not fall within the rules of the company that a passenger must produce a proper ticket. He was carried on it from Haverstraw and it was purchased as an excursion ticket from that place. The conductor of the return train was informed of the circumstances under which the ticket was purchased in the morning. While there is an absence of direct words that the full price from Haverstraw had been paid for it, no other inference than that a full statement was made, because after it the conductor invited the plaintiff to ride upon the ticket to Haverstraw, and he had no right to put him off the train. The case is not one which resembles Hibbard v. N. Y. & Erie R. R. Co., 15 N. Y., 455. That case was one where the passenger refused to show his ticket. The case of Lynch v. Metropolitan Elevated R. Co., 90 N. Y., 77, only holds that a company cannot imprison a passenger who has lost his ticket; that he had a right to leave the train. The case of Hamilton v. N. Y. C. R. R. Co., 51 N. Y., 100, holds that what was said by way of insulting language when he was not acting as conductor, was to be disregarded by a jury in an action against the company for putting a passenger off tlie train. A passenger may pay his fare to the conductor on the cars and travel without a ticket. A conductor on one train is not bound to take a passenger’s word that he had a ticket which was taken up by the conductor of a previous train. Townsend v. N. Y. C. & H. R R. R. Co., 56 N. Y., 295. In this case the conductor of the return train invited the passenger on the train with full knowledge of the facts, and he was not at liberty to treat the ticket as one to Congers only. The evidence that the plaintiff had articles needed for his work progressing at Haverstraw was not improper. It was a direct injury from the failure to get home by the train he was on, if damages resulted, but was not followed up so far as to show any damage. The evidence was harmless in itself.

The judgment should therefore be affirmed, with costs.

Dykmah and Pratt, JJ., concur.


author: Pratt, J. Cullen, J.

text:
    The Mayor, etc., of New York, Resp’t, v. Mary Wright, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    Eminent domain—Constitutional law—Laws 1883, chap. 490.
    The New York aqueduct act, chap. 490, Laws 1883, makes ample provision for the payment to land owners of damages assessed by authorizing the issue of bonds therefor and empowering the amount to he raised by taxation, and thus meets the requirement of the constitution. It is not necessary .that compensation he given in advance of or concurrently with the taking.
    Appeal from judgment in favor of plaintiff.
    This was an action of ejectment commenced against the defendant to obtain possession of premises acquired by the city of New York, for a storage reservoir in connection with the new aqueduct, under chap. 490 of the Laws of 1883, commonly known as “the aqueduct law.”
    Possession was refused on two grounds:

      First. That the act in question was unconstitutional in authorizing occupation to precede compensation.

      Second. That said act was “ not broad enough to include ” the defendant’s property.
    The case was argued before Justice Barnard, there being no disputed facts and no allegation of irregularity in the statutory proceeding.
    Justice Barnard overruled all objections raised by defendant’s counsel, and held the act constitutional, and that under its provisions the city could acquire all lands necessary for dams and storage reservoirs.
    A. J. Adams, for app’lt; H. T. Dykman, for resp’t. •
   Pratt, J.

This case was tried before a judge without a jury, and upon the allegations contained in the pleadings, and really involves only questions of law as no proofs were submitted.

The first defense set up in the answer hinges upon the second and third defenses, which it is only necessary to notice.

It is claimed that the acts of the legislature under which this property has been condemned under the right of eminent domain are not broad enough to cover the locus in quo.

That is a question that should have been raised in the condemnation proceedings where the question of fact might have been tried.

The statutes authorize the plaintiff to acquire any property necessary to construct storage reservoirs for the new aqueduct.

This was determined to be necessary by the proper officers and proper proceedings taken to condemn it for that purpose, and we think it is too late now to make the objection available.

The third defense is that no compensation has been paid for the land.

It is now too well settled to require comment that the compensation is not to be given in advance of the taking or even concurrently in point of time. It is enough to satisfy the constitutional requirement if an adequate and certain payment is provided for such owner which he can avail himself of. In Matter of U. S., 96 N. Y., 287 ; Matter of Mayor, etc., 99 id., 577.

The statute has made ample provision for payment of the damages assessed. The law gives the land owners whose property is condemned ample security for the certain and immediate payment by authorizing the issue of bonds pledging the resources of the city, and empowering the amount to be raised by taxation. In other words, the law puts the public purse of the city behind the debt as the source of its payment.” Matter of the Mayor, etc., supra.

Such security has been held to be a sufficient guarantee of payment to meet the requirements of the constitution. Lewis on Eminent Domain, 457; Pittsburgh v. Scott, 1 Pa. St., 309.

It seems to have been the neglect of the defendant that she has not already received the award.

Judgment affirmed.

Cullen, J.

The evidence adduced on the trial has not been placed before us. The appeal is substantially upon the judgment roll and no exception has been taken to any of the findings of fact. Such findings show that the aqueduct commissioners and commissioners of public works of the city of Hew York under the act of June 1, 1883, and the acts amendatory thereof, determined to construct a dam and reservoir, and to acquire for that purpose the real estate in suit, and that they in all respects complied with the requirements of said acts for that purpose.

There is nothing in the record before us to show that the land of the defendant lies outside of the limits of the reservoirs and aqueduct authorized by the legislature, and in the absence of evidence' or a finding showing such fact we must assume that the land is within the limits which the legislature authorized the plaintiffs to acquire.

The sole question which the defendant can raise on this appeal is, therefore, the constitutionality of the legislation under which her land is sought to be acquired. The grounds on which the validity of the legislation is assailed seem to us to have been so settled by repeated adjudication of the highest court in this state as to foreclose any elaborate discussion. That payment in advance of the taking is unnecessary provided a certain and adequate source and manner of payment to the landowner is provided, and that the public purse of the city is such adequate and certain source of payment, was held by the court of appeals in Matter of the Mayor, 99 N. Y., 569, and Sage v. City of Brooklyn, 89 id., 189. The provision for payment of any awards is as certain and definite in the act here in controversy as that contained in the park act, the validity of which was determined in the first of the cases cited. Indeed no distinction is attempted to be drawn except in the fact that the act before us prescribes no time within which the commissioners of appraisal must make their report We do not think such provision necessary. The landowner himself is the moving party. He files his claim; his award draws interest. The court can secure to him the prompt determination of his claim if he himself acts with diligence. This is sufficient.

The judgment appealed from should be affirmed, with costs.

Dykman, J., concurs.


text:
    In the Matter of the revocation of probate of the will of William Watson, deceased.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    1. Wills—Execution—Testamentary capacity.
    Testator’s will was drawn "by a competent attorney from instructions given by him and was executed in due form, no one being present except the attorney and the other witness. A type written will precisely similar except as to the date was executed the following day. Testator was feeble and occasionally was under 1ke influevce of liquor, but was shown to be sober when the will was execute d and to be capable of transacting business. Held, that the will was properly admitted to probate.
    2. Same—Power op appointment.
    A general bequest includes a personal estate which the testator had the power to appoint by will, and the will will be held to execute such power where no contrary intention appears therein.
    (Pratt, J.,dissents.)
    Appeal by Francis A. Watson and Henry R C. Watson, heirs and next of kin of deceased, from decree of surrogate of Westchester county denying application to revoke probate of will and ratifying and confirming said probate.

      George 0. Blanhe, for app’lts; Cornelius B. Kene, for resp’ts ; Samuel D. Osborne and M. M. Silliman, special guardians for infants.
   Barnard, P. J.

William Watson, the younger, died in Westchester county in September, 1887, leaving a last will and testament. The will was admitted to probate by the surrogate of Westchester county on the 23d of January, 1888. The deceased left no child or children, and by his will made his wife the residuary legatee of his estate. The petitioners, who are brothers of the deceased, ask that the probate be revoked for irregularities in the probate and because the testator was not free and capable. The proof taken makes a very voluminous record. The will was drawn on the 27th of July, 1887, and executed on the 28th of July, 1887. Cornelius E. Kene, a capable and respectable. attorney of this court drew the will upon the personal instruction of the deceased. It was executed under the form which the statute prescribes for the validity of wills. The witnesses to it were Mr. Kene and Mr. Peter Schleger. Ho one else was present. Mr. Kene was doing some business for testator, and on the Monday preceding the execution, and on two or three occasions prior thereto, he told Mr. Kene he wished to make a will. On this Monday an appointment was made with Mr. Kene for the draft of a will on the Wednesday following. ’ On Wednesday a will was drawn in the testator’s presence and executed. It was thought to be best to have a type written copy made, which was done, audit was executed the next day, Thursday. The Thursday will is the one offered for probate. The two wills were precisely alike, except in date. The same witnesses signed both wills. The testator took away with him. the written will when he executed the type written copy. This was some six weeks before the testator’s death. Mr. Rene had no interview with him until two or three days before his death, when the testator told him that he had destroyed the written will of Wednesday, the 27th, when he went to the Coburn farm, where he had stopped on his way to his residence. The testimony of Mr. Rene, beyond showing a. person who was occasionally under the influence of intoxicating liquor and was quite feeble, establishes a full understanding of his affairs, and entire sanity and freedom from restraint on the part of the deceased when the will was executed. The other is equally direct and positive as to the capacity of the testator.

This witness heard testator declare the will to be his last will and testament and saw him sign it, and at his request was a witness. He then had a conversation of some length with testator as to his travels in Europe. He was perfectly sober and there was nothing to show lack of memory or any incapacity to execute a will. Alfred Mewton, the professional nurse, testifies to no incapacity. In July and part of August, 1887, the testator could get in and out of a wagon and was out about the farm the day before his death The witness testifies that the deceased went to Mr. Rene’s office in July, 1887, “perfectly sober.” .The witness testified to a habit of drinking but never saw him in such condition that he would call him “ a drunken man.” Brainard T. Harrington, a witness who, for many years prior to his death, had means of observation greater than others outside - of the family of deceased, establishes a perfectly capable testator. When drunk he would talk like a drunken man and that was all. The witnesses for petitioner (contestants) do not prove incapacity. F. S. Ivins proves ill habits from drink. He had conversation with deceased “ when his mind was clear.” Moran had no acquaintance with deceased after 1883. Carrill left the employment of deceased in 1884. The witness Scofield was one who drank with deceased and his testimony is not very definite as to times when he had conversations with deceased. He proves nothing. He states that the testator, when drunk, “he was pleasant, joking and full of fun.” Mr. Thompson, the guardian, shows merely a man who drank at times to excess, but “ capable of transacting the business of the farm and of Homecroft generally, in his directions to me.” It is not necessary to go further with a minute statement of the evidence. The will was fully proven both in formal essentials and in the capacity and freedom from restraint of the testator. By the ninth clause of the will of William Watson, Sr., a trust- fund was created for the benefit of William Watson, Jr., during his life, and after his death to his children, -and on default of children, • “ to such person or persons, and in such manner or form, as he shall by his last will and testament, executed after he shall attain the age of twenty-one years, limit or direct.” It is not easily apparent that the trust fund was any different from other individual property of William Watson, Jr. It was part of his father’s estate with a life use in it, with a remainder to his children if he had any, and if there were no children, with a power to will it freely to whomsoever he would. He had no children. He was over twenty-one when he made the will, and he willed all his property to his wife after giving a few legacies to others. The subject of a reference to the power in the disposition of property is thoroughly discussed in White v. Hicks, 33 N. Y., 383, where the conclusion is reached that a general bequest includes a personal estate which the testator had the power to appoint by will, and that the will will be held to execute such power where there is no contrary intention apparent from the will.

The decree should, therefore, be affirmed, with costs.

Dykman, J., concurs; Pratt, J., dissents.


author: Brady, J. Yan Brunt, P. J.

text:
    Mary Cambreling et al., Resp’ts, v. Euphemia G. Purton et al., Resp’ts. In the Matter of the Application of Morris Littman, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    1. Judicial sale—Defects in title—When purchaser required to COMPLETE.
    If the existence of the alleged fact which is supposed to clog the title is a possibility merely, or the alleged outstanding right is a very improbable and remote contingency which, according to ordinary experience, has no probable basis, the court' may compel the purchaser to complete his purchase, but such discretion should be carefully and guardedly exercised and used only where the case is free from reasonable doubt.
    2. Same—Presumption of death.
    In an action for partition one of the parties, G., who was an heir of the ' former owner, was not served except by publication. It appeared that C. was in wretched health, caused by habits of dissipation, and the doctor forbid him leaving his room, saying it was dangerous to do so, and that at most he could only live a year. He knew of his condition and said he hoped he would die on one of his sprees. He left the house on a stormy day in 1874, and has not since been heard from, and an administrator has been appointed of his estate. Held, that there was a strong probability of the death of 0., and that the purchaser at the sale should be required to complete.
    (Van Brunt, P. J., dissents.) '
    Appeal from an order of the special term denying the motion of Morris Littman, a purchaser at the partition sale in the above entitled action, to be relieved of his purchase and to have the moneys paid by him on account of the purchase price and his other expenses repaid to him.

      Page & Taft, for app’lt; John Vincent and William P. Quin, for resp’ts.
   Brady, J.

This is an appeal by the purchaser at a partition sale ordered in the above entitled action to be relieved from his purchase.

It appears that Alfred Colvill died intestate seized of the premises in question on the 6th of December, 1878, leaving him surviving a widow and five children, one of whom was John Oolvill.

In January, 1881, an action of partition was brought by Euphemia Gr. Purton v. Caroline W. Colvill and others for the partition of the intestate’s real estate. John Colvill was not personally served nor did he appear in the action, but the summons in reference to him was served by publication if then living.

There appeared upon this motion not only those facts, but also, that from 1865 to 1870 he was a man of very intemperate habits, having spells of hard drinking, which increased in frequency until his disappearance in 1874, when he seems to have become a ■chronic drunkard. On the occasions of his excessive drinking he disappeared from home and remained away from a week to a month. On his return he was generally prostrated and in a very demoralized condition; indeed, an examination by his physician in 1873, upon his return after one of his debauches, disclosed the fact that he was suffering from a number of organic diseases incident to alcoholic indulgences, namely, chronic disease of the liver, ■congestion of the kidneys and valvular disease of the heart; he had several severe attacks of inflammatory rheumatism and several hemorrhages from the stomach.

In 1873 he went to the Binghamton Inebriate Asylum, urged thereto by his physician and family, and remained there until the following January, when he returned to his father’s house although he had been advised by his physician to remain at the asylum for at least a year and a half and had promised to stay there a year. After his return from the asylum he went off on a long spree of several weeks and returned to his home in a very bad physical condition. He disappeared again in March, 1874, returning in the same condition and had a severe illness marked by two hemorrhages of the stomach; it was discovered that the condition of his kidneys had become decidedly worse, that his heart’s action was very much disturbed and that there was extreme congestion of the liver. He again disappeared in May, 1874, was gone a little longer than the usual time and returned apparently more prostrated than before. Dr. Strachan, who attended him, thought he might die at any moment and that if he went off on .another spree death would be inevitable. The doctor stated that he had never known of such severe hemorrhages of the stomach as Colvill then had and was astonished that the man did not die from them. His legs were badly swollen and the action of his heart was labored and intermittent as the result of blood poisoning from the condition of his kidneys. The attending physician gave instructions that it would be unsafe for him to go out of his room and would not allow his sister to see him, telling the family he was in a dangerous state and that if he got away he would not come Back alive, and farther, that under the most favorable circumstances he would not live a year. He had been warned by his physician that another attack would probably prove fatal and had expressed a desire to die, stating that he could not control his unfortunate habit and therefore had to go on the sprees in which he indulged.

In June, 1874, while he was seriously ill, he was advised of the death of a lady to whom he had been attached and it was reported ■engaged, and who had died during his previous spree. He was very much affected, by the intelligence and about two o clock in the afternoon of that day told his brother he had some business to attend to down town and would return in a couple of hours. His brother saw him enter a Fifth avenue stage; he wore a one buttoned gaiter and one shoe and left his valise packed at his house; it was raining. His departure from his father’s house under the circumstances subjected him to an exposure yrhich might kill him in twenty-four hours,"as established by the evidence of the physician, and others, in the case. He has never been seen or heard of since this disappearance; diligent efforts to find him were made by his family, but without success. He was twenty-nine years of age at the time of his final disappearance.

It furthermore appears that Euphemia Gr. Purton, one of the defendants, was duly appointed administratrix of the personal estate of John Colvill by the surrogate of this county, who confirmed the report of the referee, Sherman W. Knevals, in the proceedings for such appointment, and who decided that John Colvill died shortly after June, 1874, the date of his last disappearance.

The purchaser, in the affidavit accompanying his application to be relieved of his purchase, stated he had diligently endeavored to ascertain whether John Colvill was living at the time the action for partition was commenced, already mentioned, or at the time when the decree of sale was entered therein, or whether ,he had died since or was then living; but had been unable to obtain any information whatever concerning these matters. Here then is a very important array of facts and circumstances leading to no other result than that John Colvill was dead; indeed, that his last disappearance and his death followed close upon each other, if indeed they were not contemporaneous.; his condition then and the exposure to which he subjected himself resulting probably in his death within a very short time, possibly within a few hours after he left his residence. In all probability he was found dead, and asan unknown person subjected to burial without any discovery of his death by his relatives.

It is not necessary to indulge in any extended researches to ascertain what rules have governed the courts on a kindred question, particularly as in the case of Ferry et al. v. Sampson, 112 N. Y., 415; 21 N. Y. State Rep., 577, the court of appeals has established a rule applicable to the facts -and circumstances of this case, and calling upon this court in the exercise of its discretion to determine that a good and sufficient title may be given the purchaser notwithstanding a possible doubt as to the existence of John Colvill. It is there said that although a purchaser on a judicial sale is entitled to a marketable title, that is, a title free from reasonable doubts, and the courts are not disposed to compel a purchaser to.take title where a doubtful question of fact relating to an outstanding right is not concluded by the judgment under which the sale is made, nevertheless the rule is not absolute that a disputable fact not determined by the judgment is in every case a bar to the enforcement of the sale. It depends in some degree on discretion. If the existence of the alleged fact which is supposed to clog the title is a possibility merely, or the alleged outstanding right is a very improbable and remote contingency, which according to ordinary experience has no probable basis, the court may compel the purchaser in such a case to complete his purchase, suggesting that the discretion should be carefully and guardedly exercised, and used only where the case is free from reasonable doubt. In that case it was thought that the presumption of the death of Robert White Armstrong, an intestate, without leaving a widow or children surviving, was upon the facts disclosed very strong, amounting to scarcely less than certainty, and jet it was a case of his disappearance only, although he had not been out for quite a number of years and was a man in good health. Here it appears that John Oolvill was in wretched health, and who for a series of years had been industriously engaged in destroying it by excesses; who had declared himself to be so controlled by his habit of excessive drinking that he could not stop it, and who hoped that he would die in one of his so-called sprees. There is very little doubt that his wish in that respect was gratified, and that shortly after he was last seen he paid the penalty of his unfortunate and destructive habit

For these reasons it is thought the order appealed from was properly made, and that the purchaser should be required to complete his purchase.

Ordered accordingly.

Daniels, J., concurs.

Yan Brunt, P. J.

(dissenting.)—I cannot concur. I do not think that a purchaser should be required to take the risk of establishing the facts upon which the decision of this motion is founded, and which depend upon the evidence of witnesses which may not always be at his command. I, therefore, dissent.


author: Brady, J.

text:
    Paul M. Berger et al., Resp’ts, v. George E. Varrelmann, Impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Assignment for creditors—Preferences—Confession of judgment.
    Immediately prior to the execution of a general assignment for creditors the firm confessed judgment to the father of one of the partners for more than one-third the entire value of the assets, which fact was known to the creditor. Held, that the confession of judgment was made in contemplation of the assignment, and a part thereof, and was in violation of the statute against preferences. .
    Appeal from judgment of the special term, setting aside a confession of judgment obtained by George E. Yarrelmann against Henry Erdtmanu and Gustave Yarrelmann.

      Rudolf Dulon, for app’lt; Frederick W. Hinrichs, for resp’ts.
   Brady, J.

This appeal rests upon the findings alone, no requests to find having been submitted.

The action was brought by the plaintiffs as judgment and simple creditors of the firm of W. & H. Erdtmánn, consisting of Henry Erdtniann and Gustave Yarrelmann, in aid of the general assignment of that firm, to set aside as in fraud of such assignment a confessed judgment of the firm to the defendant Georgb EL Ycrrelmann, the father of Gustave, dated April 29, 1889. '

It appears that on the afternoon of April 29, 1889,‘the firm oí Erdtmann &Yarrelmann made a general assignment to the defend» ant Kracht with preferences, which was recorded on the 2d of May, 1889. On the afternoon of the same day, and immediately prior to the execution and delivery of the general assignment,, and while the firm was absolutely insolvent, they confessed a jiidg»' ment to George E. Yarrelmann, the father, as suggested, of one 0$ the members of the firm. It is found, and not questioned, that ai> the time of the confession of the judgment and the making'of the assignment, the firm and their creditor to whom the judgment’was; given were all well aware that a sale under an execution would; absorb much more than one-third of the assets of the firm, the: entire value of which was not three times the amount thereof, but,, on the contrary, payment of said judgment at the time would have, absorbed much more than one-third of such property.

The learned presiding justice, before whom the 'case was tried in the court below, found that the judgment mentioned, execution and levy were made in contemplation of the assignment, and as part thereof, for the purpose of duly preferring the judgment creditor, and to prevent the assets of the firm from going into the hands of their assignee to be distributed according to the terms of the assignment; that the judgment, execution and levy were in fraud of the assignment .and void, and that the assets levied upon or their proceeds should be paid over to the assignee Kracht.

The judgment of the learned presiding justice rests upon the established legal proposition that confessions of judgments made with intent to avoid the statute as to preferences in assignments are void.

There is nothing presented upon this appeal to limit in any manner the rule laid' down or to relieve the- appellant from its. force and destructiveness.

It is suggested, it is true, that it is not found as a fact that when the firm confessed the judgment they contemplated making the assignment, which is sufficiently answered by referring to the fact, that both acts of confession and assignment were perpetrated on the same day, the judgment having been confessed immediately prior to the execution and delivery of the assignment. The fact-therefore springs out of the circumstances attending the two performances, and is so plainly written upon the transaction that he who runs may read.

The confession was in violation of the statute against preferences. Laws 1887, chap. 503, § 30; Spelman v. Freedman, 54 Hun, 409 ; 27 N. Y. State Rep., 392 ; Wilcox v. Payne, 8 N. Y. Supp., 407 ; 28 N. Y. State Rep., 712 ; see also Manning v. Beck, 7 N. Y. Supp., 215 ; 26 N. Y. State Rep., 483; also Kessell v. Drucker, 6 N. Y. Supp., 945; Turnbull v. Cohen, N. Y. D. Reg., June 16, 1889 ; Abegg v. Schwab, 7 N. Y. Supp., 46 ; 24 N. Y. State Rep., 986; affirmed 9 N. Y. Supp., 681; 31 N. Y. State Rep., 139.

The appellant can derive no advantage whatever from the adjudication of Trier v. Herman, 115 N. Y., 163; 24 N. Y. State Rep., 552. That case relates to the right of a creditor to obtain a judgment against his debtor in any one of three modes. But although it seems to be favorable to him, it is burdened with the observation that “if his practice is regular and his claim and proceedings are honest and bona fide, no court will deprive him of the advantage his judgment will give him.”

The judgment creditor’s practice in this case was not regular. It was not bona fide, because it is expressly found that he knew when he obtained his judgment that he would secure an undue advantage which is an unlawful advantage under the statute, and thus violate the statute to which reference has been made.

For these reasons the judgment appealed from must be affirmed, with costs.

. Daniels, J., concurs.


author: VAN Bbunt, P. J.

text:
    John Mullen, Resp’t, v. The Mayor, etc., of New York, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Municipal corporations—Aqueduct commissioners have no power to SUSPEND INSPECTOR.
    ■ PlaintiS was employed by defendant through the aqueduct commissioners as an inspector of masonry. During his employment he was suspended at times by the division engineer. In an action to recover salary for the time he was so suspended, Held, that while the commissioners had the right .to dismiss such inspectors, they had no power to suspend them without pay.
    Appeal from judgment entered upon verdict directed by the court.

      Sidney J. Oowen, for app’lt; Peter Mitchell, for resp’t
   VAN Bbunt, P. J.

The plaintiff in this action was employed, by the defendant through the aqueduct commissioners as an inspector of masonry to supervise and inspect the work of construction of the new aqueduct by virtue of the powers vested in such, commission by the aqueduct act. The plaintiff duly entered upon the discharge of his duties and continued in his employment until April 18, 1888, when he was “ suspended by the division engineer in charge of the division in which the plaintiff was employed.” He was then kept suspended without pay from time to time to the 4th of May following, when he was put back to work until the 18th of August, 1888. On the latter date he was again suspended by the division ei%ineer and continued so suspended until his final discharge.

This action was brought to recover his salary during the period that he was suspended.

We cannot see any distinction whatever between the case at bar and Gregory v. The Mayor, 113 N. Y., 416; 22 N. Y. State Rep., 703. In that case it was held that although the board of excise had the arbitrary right to remove inspectors, they had no power to suspend without pay. It was held in that case that no such. power appeared in the language of the statute, and none was to be inferred from the necessities of the case.

It is sought to distinguish the case at bar from the one cited because of the different nature of the work to be performed by the inspectors, and it is claimed that they were laborers, and not officers, in the strict sense of that term; and that the suspension of an aqueduct inspector leaves no office to fill; nor does it create any vacancy which the law requires should be filled.

That is precisely the case with the excise inspectors. They are simply employes of the department. The excise board, in the case of the dismissal of an inspector, is not required to appoint another. Neither does the suspension of an excise inspector leave an office to fill. There seems to be no distinction in reference to the powers conferred upon the aqueduct commissioners from those conferred upon the excise commissioners in respect to their inspectors. They had the right to employ and the right to dismiss: but there was no provision in the statute that the inspectors might be suspended from their employment without pay.

It is urged that a dereliction on the part of an aqueduct inspector might, and in fact would, work incalculable injury to the city. That may be true, but if there was such a dereliction of duty on the part of an inspector the commissioners were amply empowered to dismiss the delinquent.

It is urged that it was necessary to suspend during an investigation. It was equally necessary in the case of the excise board that when a charge was made against an inspector he should be suspended during an investigation. In fact, there seems to be no argument in favor of the power of suspension in the one case that is not equally applicable to the other.

We have read with care the opinion of Mr. Justice Daly upon this subject, but we do not think that the consideration urged by him, namely, that an agreement exacted from the employe that he is only to receive pay while he is at work, in any way affects the question; and besides in the case at bar no such agreement appears. It has been held over and over again that a compensation fixed by statute cannot be impaired by agreement between the corporate authorities and its employees.

The judgment, should be affirmed, with costs.

Daniels and Brady, JJ., concur.


author: Van Brunt, P. J. Daniels, J.

text:
    Albert P. Miller, Resp’t, v. The New Jersey Steamboat Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Carriers—Not required to exchange cabin berths for stateroom— Civil rights.
    Plaintiff, a colored minister, took passage on one of defendant’s boats, and engaged berths in the cabin for himself and family, but finding the accommodations too limited, requested the purser to exchange them for staterooms. The pu'ser consulted the captain, and then declined to make the exchange, and thereup-n plaintiff demanded and received his money back, and with his family left the b at. Held, that these facts did not make out a cause of action, and the court erred in charging that one had been made out; that whatever may have been the duty of defendant towards plaintifE, it was not bound after he had bought and paid for these berths to exchange them for a stateroom.
    Appeal from judgment entered on the verdict of a jury and from order denying motion for new trial

      W. P. Prentice, for app’lt; II. L. Brant, for resp’t
   Van Brunt, P. J.

This action was brought to recover damages for the refusal by the defendant, a common carrier, to furnish the plaintiff accommodations on its steamboat.

The facts sworn to by the plaintiff are briefly these: The plaintiff, a colored minister, on the afternoon of August 10,1887, applied to the defendant for passage for himself and family, consisting of his wife, two children and mother-in-law, from New York to Albany on defendant’s boat, the “ Drew.” And having ascertained at the purser’s office what the tickets would cost, and desiring to save expenses, at the same time being as comfortable as possible, he concluded to take berths, the wife, children and mother-in-law going to berths in the ladies* compartments and the plaintiff having a berth elsewhere. The plaintiff found that these berths would cost $2.00 apiece, passage and everything, and accordingly paid for the berths and was immediately directed to the ladies’ saloon, where he and his family were met by the stewardess, who conducted them to the ladies’ cabin to some berths in the rear, where berths were assigned to his wife, mother-in-law and two children. They sat down their little bundles and were told by the stewardess they could not keep them there because there were others who were to come there and there was no room.

The plaintiff further testified that there was only a small passageway, and that they turned around, and said: “ These berths are very small; we do not see how we can get along with two women and two children; ” whereupon his wife said: “ Suppose you go to the purser and get a stateroom; they only cost fifty cents more; get two staterooms.” He then returned to the purser, and said: “Well, Mr. Purser, I would like to. exchange these berths; we find them too small for comfort, inadequate for proper accommodation, and no place to put little bundles, or anything of the kind.” The purser said : “ I cannot make the change without the consent of the captain.” The plaintiff then sought out the captain, and had some conversation with him, and the captain saw the purser, and had some conversation with him, whereupon the plaintiff asked the purser: “ What is the pleasure of the captain, sir?” His reply was: “No other arrangement will be made.” After waiting a little while, the plaintiff sought out the purser again, and said: “ If you cannot do better than this, and you have not had us to understand that you had no stateroom accommodations, we will have to leave the boat, and you will please give me my money. We would rather leave the boat than go in this shape.”

The witness further testified that at the time he came back he saw the purser give staterooms to other parties. The purser replied : “ I cannot do that without the consent of the captain.” The plaintiff went after the captain again, who returned with him to the purser’s office, and after a while his money was refunded to him. The plaintiff then said: “ I cannot help the color of my skin any more than you can' the color of your eyes. It seems too mean that an American citizen shall be treated in this manner right in the city of Mew York." He had-some further conversation in regard - to the offices of the company, and then left the boat. The plaintiff further testified that he had never been told by any of the officials that there were no staterooms.

Upon the trial the learned court charged the jury: “ I am inclined to think that the plaintiff has made out &J cause of action of about this width and extent; ” to which the counsel for the defendant duly excepted; and requested the court to charge that if "the plaintiff voluntarily left the boat there was no cause of action, which was refused.

We think that the learned court below.fell into an error in supposing that the evidence showed that there was any demand for a stateroom except in exchange for the berths which the plaintiff had already secured.

We have searched the case in vain to find any proof of this description. The demand upon the part of the plaintiff was to exchange the berths which had been assigned to him, and for which he had paid, for a stateroom, which seemed to him after examination to be preferable and better suited to his wants. The evidence shows that when the money paid for these berths was returned he left the boat, and made no demand after that time for a stateroom. /

We think under these circumstances no cause of action was made out. Whatever may have been the duty of the defendants toward the plaintiff, they were not bound after he had bought and paid for these berths to exchange them for a stateroom. They were under no such legal obligation, although they may have been under a legal obligation to- furnish the plaintiff with a stateroom the'same as other travellers upon a demand made by him for the same and an offer to pay. But there is no offer to pay for a stateroom, except by the return of tickets which he had reserved for the berths, and possibly offering to pay the difference in price between the berths and the • stateroom. The plaintiff had bought the berths and the defendants were willing to comply with tho contract which the payment of the plaintiff called upon them to fulfil. But the plaintiff was not satisfied with those accommodations and desired others. He demanded an exchange, and nothing else but an exchange. After having sold these berths to the plaintiff, and he having secured them, the defendants were not bound to rescind" this contract and buy back the berths and run the risk of selling them over again. If for his convenience the plaintiff desired more ample accommodations it was necessary that he should pay for them, and this he did not offer to do except upon the condition that the defendants would rescind the contract which they had already entered into with him by the sale of the tickets for the berths.

We think for this reason that there was a failure to make out a cause of action and the learned justice erred in charging to the jury that a cause of action had been made out in favor of the plaintiff.

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

Beady, J., concurs.

Daniels, J.

I concur, as the plaintiff failed to make out his right to maintain the action with that degree of clearness as to justify the court in holding that he was entitled to recover. It was for the jury to decide whether the refusal to exchange the berths for staterooms was made on account of the plaintiff and his family being colored persons and for that reason refusing them the privileges extended to the white passengers. The evidence was sufficient to submit that question to them, but not to sustain the court in ruling that a cause of action, as matter of law, had been proved.


author: Per Curiam.

text:
    Joseph J. O’Donohue, Resp’t, v. Zachariah E. Simmons, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    1. Indemnity—Sheriffs—Charge.
    In an action on a bond of indemnity, the court, after charging that the sheriff would lose his indemnity in case of misconduct of the auctioneer employed by him, charged that the jury “ought to be thoroughly satisfied that the conduct of the auctioneer was not merely negligent or careless, not a mere oversight. Before concluding that the sheriff should lose his indemnity because of the auctioneer’s acts, you should be quite satisfied that the latter was acting in bad faith and was guilty of misconduct tending to affect the sale seriously. In other words, the element of fraud here comes in, and the misconduct on the part of the auctioneer which would destroy the indemnity should be carefully distinguished from mere carelessness or oversight.” Held, error.
    3. Same.
    In protecting the rights of his indemnitors the sheriff is bound to use reasonable diligence and care, and fraud need not be shown to release the indemnitors.
    3. Trial—Charge.
    In a civil case the jury need not be thoroughly satisfied of any fact claimed to be proved, and it is error to charge that they must be so satisfied.
    Appeal from judgment entered on verdict after trial at circuit.

      A. Kling, for app’lt; J. M. Smith, for resp’t.
   Per Curiam.

This action was brought to recover upon an indemnity bond given to the sheriff, indemnifying him against seizing, under execution, property which he judged to belong to the defendant.

The two important questions which were presented upon the trial were, first, whether the defendant had ever executed and delivered the bond set forth in the complaint; and, secondly, whether the negligent and illegal acts of the sheriff had not discharged the defendant from the terms and conditions of the hand.

This action has been tried three times. The record presents only one question which requires notice.

The bond of indemnity to the sheriff upon which the suit is brought was designed to protect that officer against the consequences of his official acts, particularly his act in taking the goods which he judged to belong to the defendant in the execution.

It was not intended to afford protection in case of any misconduct or violation of duty by the sheriff or his agents, and the court so held on the previous appeal.

The appellant now insists that the learned judge who presided at the trial committed an error which calls for a reversal of the judgment because of the following charge:

“If a sheriff takes a bond of indemnity and employs a competent and proper auctioneer to sell the property it may seem to you to be a hardship that the sheriff should lose his indemnity because that auctioneer misbehaves himself. Now, while I do lay that down as a rule of law, yet I think it fair to say to you that you ought to be thoroughly satisfied that the conduct of the auctioneer was not merely negligent or careless, not a mere oversight. Before concluding that the sheriff should lose his indemnity because of the auctioneer’s acts, you should be quite satisfied that the latter was acting in bad faith and was guilty of misconduct tending to affect the sale seriously. In other words, the element of fraud here comes in, and the misconduct on the part of the auctioneer which would, destroy the indemnity should be carefully distinguished from mere carelessness or oversight.”

The learned counsel for the appellant excepted to the portion of the charge just quoted, in which it was stated that something more than negligence on the part of the auctioneer must be shown, to make the sheriff liable in discharging the bond of indemnity.

We think that this portion of the charge was in conflict with the opinion of the court upon the previous appeal.

The court, also, in stating to the jury that they should be thoroughly satisfied that the conduct of the auctioneer was not merely negligent or careless, was giving them an incorrect standard as to the conclusiveness of proof. In a civil case the jury need not be thoroughly satisfied of any fact claimed to be proven. If there is a preponderance of evidence in favor of the fact they are bound so to find whether they are thoroughly satisfied or the proof is conclusive to their minds or not

And, furthermore, the charge was incorrect instating that fraud must be shown in order that the indemnity should be lost.

There might be negligence and carelessness of the grossest kind without its amounting to fraud, and in fact such negligence pr carelessness may amount to misconduct without the element of fraud entering therein. And the rule laid down upon the previous appeal was that if any property was lost by the misconduct of the officer the sureties would not be liable. It was not laid, down that fraud must be shown, but simply that unless the officer executed his process with fidelity and with reasonable diligence he could not claim his indemnity. In attempting to import the element of fraud into the consideration of this question, the fact seems to be lost sight of that the indemnity is given to the sheriff for his protection in the execution of the process; and in protecting the rights of his indemnitors he is bound to use reasonable diligence and care. If he is careless or negligent in the execution of the process he cannot claim indemnity against those persons who have agreed to stand between him and loss provided he executes the process with due care and diligence.

By the instruction referred to the jury were necessarily misled, and for this error the judgment must be reversed and a new trial ordered, with costs to appellant to abide event.

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


author: Van Brunt, P. J.

text:
    Alfred C. Barnes et al., Pl’ffs, v. Edwin M. Barnes et al., Def’ts.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Pleading—Parties—Action for accounting and construction of will.
    Where a legatee under a will has assigned his interest to third persons, such persons are -necessary parties to an action by the executors and trustees for an accounting and construction of the will, and the grounds upon which such persons claim may with propriety be set forth in the complaint.
    Appeal from interlocutory judgment overruling demurrer of the defendant Sarah E. Blake to the complaint.

      0. B. Smith, for app’lt; F. B. Candler, for resp’t.
   Van Brunt, P. J.

The plaintiffs in this action are the executors and trustees under the will of Alfred 0. Barnes, 'deceased, and it is claimed by them that this action was brought for a final settlement óf their accounts as such executors and trustees, and for a construction of the will of the deceased in respect to certain points which it is necessary to settle before said accounts can be finally disposed of.

The defendants are the parties interested under the will and the assignees of the appellant, one of the legatees. The complaint sets forth the circumstances of the various assignments and the indebtedness which it is alleged they were made to secure. It is claimed upon the part of the appellant that there has been a misjoinder of causes of action, in that it combines a cause of action by the executors for an accounting with a cause of action by the alleged creditors against the appellant.

We do not think that this objection is well taken. It may be true that the executors in the bringing of this action might have alleged that the assignees of the appellant claimed a share of her interest in the estate, leaving it to them to set up the particulars. But in order that there may be a final determination and settlement of the accounts and of all questions in relation thereto, it was necessary that they should make parties all persons claiming an interest in said estate, whether as legatees or devisees, or assignees of legatees and devisees. The assignee of a legatee has as much right to be heard in reference to the adjustment of the accounts of the estate as the original legatee. He is just as much a necessary party, and his claim against the original legatee must be settled before a decree of distribution can be made; and certainly it cannot in any way invalidate the complaint to state all the facts, as the plaintiffs understand them, necessary to a proper determination of the questions which such facts bring up for adjudication.

If the appellant had not executed assignments of her interest in the estate to these various defendants, although she may have been indebted to them, clearly they would have been improper parties to the action. But she having given them a.specific lien upon her interest in the estate by assignment, they were entitled to be heard as to the distribution, its method and amount. And, although incidently the questions as to the indebtedness of the appellant to these assignees may arise, yet they are kindred to the subject matter of the action, viz.: the accounting of the executors, and the determination under the terms of the will as to how charges against the various devisees are to be made.

It is conceded upon the part of the appellants that perhaps all of them. may be proper parties, but it is urged that it is not necessary to discuss that question here, the objection being not that there is a misjoinder of parties, but that there is a misjoinder of causes of action, and that there is no power of the court or authority in law compelling the different defendants to litigate in this action their rights, against the defendant Blake.

It is. clear, however, from what has already been said, that if these defendants choose to litigate their claims against the defendant Blake, .they have a right to do so, and they are not complaining of the allegations in the complaint. If there had been no allegations in reference to the claims of the defendants out of which these assignments arose, each assignee would have a right to set up his particular claim against the estate and have it determined here, as they are by reaáon of their assignments the representatives of the defendant Blake to the extent of their respective claims.

The defendant Blake cannot take the objection that these creditors cannot be forced to come in and litigate their claims against her in this action ; 'and if these various assignees do not choose to assert their rights here they have a very easy remedy by disclaiming in their answer all interest in the estate as the assignees of Mrs. Blake. Until this is done, they having made their claims against the estate by reason of the assignment, they are not only necessary parties, but the .grounds upon which they claim may, with propriety, be set forth in the complaint.

We are of opinion, therefore, that there has been no improper joinder of causes of action; that the complaint is one for an accounting and the construction of the will; and that the other allegations in reference to the assignments made by the defendant Blake, of interest in her share of the estate, are mere incidents in respect to the accounting and construction.

■ The judgment should be affirmed, with costs, and with leave to the appellant, upon payment of the costs of this court and of the court below within twenty days after notice of the entry of the ■order upon this decision, to withdraw her demurrer and serve an answer.

Daniels and Brady, JJ., concur.