author: Bischoff, J.

text:
    Oliver H. Perry, Resp’t, v. The Erie Transfer Co. App’lt.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    Jurisdiction—Action by non-resident against foreign corporation
    Plaintiff, a resident of New Jersey, entered into a contract in that state to hire teams to defendant, which was a corporation organized under the laws of that state. Held, that in the absence of evidence to show that a different place was agreed upon for the purposes of payment, the presumption would be that it was to be made in that state; and that, although such teams were largely employed by defendant within the state of New York, the default in payment, and hence the cause of action arising upon such defaiut arose in New Jersey, and the courts of this state had no jurisdiction of the action.'
    Appeal from a judgment of the general term of the city court, affirming a judgment of that court in favor of the plaintiff entered upon a verdict rendered "by direction of the trial court. Action by plaintiff against defendant to recover for the use of teams hired by the defendant, and employed by it in the transportation of goods between the cities of New York and Jersey city.

      George W. Wickersham, for resp’t; Andrew Kent, for app’lt.

       Reversing 40 St. Rep., 693.

   Bischoff, J.

The question presented to us on this appeal is one affecting the validity of the judgment appealed from for want of authority in the court below to render it.

Defendant is a corporation organized under the laws of New Jersey, hence a foreign corporation within the meaning of the Code. Code of Civ. Pro,, § 3343, subd. 18. Plaintiff at the time of instituting this action was, and continued to be, a resident of the same state. These facts having conclusively appeared upon the close of plaintiff’s direct evidence, defendant protested against further procedure in the action, and asserted that the trial court was without jurisdiction to determine the controversy in suit upon the merits. A motion to dismiss the complaint was denied, and upon failure of defendant to challenge the facts appearing in support of plaintiff’s claim the court directed a verdict in favor of the latter.

To each of these rulings defendant duly excepted and either exception sufficiently raises the question of jurisdiction.

Pursuant to the provisions of the Cede of Civil Procedure, ■§ 1780, the courts of this state are divested of all authority to entertain actions brought therein against a foreign corporation by a non-resident, or another foreign corporation, unless it is sought thereby to recover damages for breach of a contract made within this state, or the action relates to property within this state - when the contract was made, or unless such actions are brought to recover real property within this state, or a chattel replevied therein, or the cause of action shall have arisen within this state and the object of the action is not to affect the title to real property beyond its territorial limits. These restrictions present conditions upon the existence of which the power of the court to determine the action is dependent, and acts in disregard thereof are without jurisdiction and of no effect. Davidsburgh v. The Knickerbocker Life Ins. Co., 90 N. Y., 526. The particular restrictions to be considered on this appeal have been determined to have such effect in Robinson v. Oceanic Steam Navigation Co., 112 N. Y., 315; 20 St. Rep., 741, and the court of appeals also sanctions the contention of appellant’s counsel that this effect .cannot be impaired, or the authority of the trial court enlarged, by consent of the parties or the omission to object to its jurisdiction by answer or demurrer, but that the objection may be made at any time, and that whenever any jurisdictional fact is wanting it becomes the duty of the court to dismiss the action ex mero motu.

It appears inferentially from the evidence that the contract for the hire of teams by plaintiff to defendant was made in New Jersey, but were all evidence concerning the place where the contract was entered into wanting, the fact that both parties were residents of New Jersey at the time would presumptively determine the place as being within that state. Plaintiff was concededly a resident of New Jersey, and defendant’s residence is in contemplation of law within the bounds of the sovereignty which created it. Plimpton v. Bigelow, 93 N. Y., 592.

Defendants having contractually assumed the obligation to pay for the use of the teams in New Jersey, the presumption is, in the absence of evidence tending to show that a different place was agreed upon for the purposes of payment, that such payment was to be made in the same state. Wharton on Contracts, Vol, 2, § 872; Lawson’s Bights, Remedies & Practice, Vol. 5, p. 4142; Smith v. Smith, 25 Wend., 405; Hale v. Patton, 60 N. Y., 233, It is important to bear these facts in mind in determining where plaintiff’s cause of action arose.

Apparently appreciating the force of defendant’s objection to the jurisdiction of the trial court, plaintiff’s counsel sought to overcome its fatality to the maintenance of the action by recalling plaintiff and eliciting from him the further fact that the teams were largely employed by defendant m the carriage of goods within the territorial limits of the State of New York, and he thereupon urged with some degree of confidence that the jurisdiction of the court was thus sustained. Becurring, however, to the provisions of § 1780, Code Civ Pro., it-will be seen that the action was maintainable only provided the contract was made within the State of New York, the contrary of which, as we have shown, was the fact, or that the cause of action arose therein; hence it was quite immaterial where the teams hired by the defendant were employed by it

A cause of action arises “when that is done which ought not to have been done, or that is not done which ought to have been done.” Hibernia National Bank v. Lacombe, 84 N. Y., 367, 384; The Toronto General Trusts Co. v. Chicago, B. &. Q. R. R. Co., 32 Hun, 190; and in the predication of the right to institute and maintain an action this act of commission or of omission is the essential and determining fact. No right of action exists without a cause of action, and every cause of action necessarily implies a right of action for its prosecution. Each derives its life from, the other, and their presence is therefore interdependent. As regards a contiact, the cause of action is the breach in the non-fulfillment of the obligation which it imposes, and until the accruement of a. right of action by the breach no cause of action is existent. Be-! lendants’ breach of contract was its failure to pay the sum agreed to be paid for the teams hired of the plaintiff, and as it was not bound to payment elsewhere than m Hew Jersey, the breach occurred, and the cause of action arose in that state.

For the reasons above mentioned we are constrained to hold that the facts which appeared upon the trial were insufficient to authorize the trial court to render the judgment appealed from, and it must be reversed, but as plaintiff may be able to cure the jurisdictional defects by further evidence, a new trial should be accorded him.

Judgment reversed and new trial granted, with costs to abide the event.

Daly, Ch, J, concurs.


source: Caselaw Access Project

author: Daly, Ch. J.

license: Public Domain

text:
    William Wharton, Jr., & Co., Pl’ffs, v. Charles F. Winch Def’t.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    Contract—Breach—Prospective profits.
    A mere default In the payment of an instalment due upon a contract, where performance by the contractor is not dependent on such payment nor prevented by non-payment, will not entitle the contractor to recover prospective profits in an action for breach of the contract.
    Motion by plaintiff for a new trial upon exceptions directed to be heard at the general term in the first instance, after a verdict directed by the court in favor of defendant.

      Strong & Cadwalader (G. W. Wichersham, of counsel), for pl’ffs; Edward Swann (C. E. Rushmore, of counsel), for def’t.
   Daly, Ch. J.

By the contract between, the parties to this action, the plaintiff agreed to furnish materials ana lay two and a half miles of double track for a street railroad in Lincoln, Hebraslca, for the sum of $56,000; $12,000 to be paid when each half mile was completed. It was also agreed that defendant should pay m advance the value of the material as delivered for the work; a deduction to be allowed from the payment for each half mile for the material used in its construction. The first material delivered was of the value of $12,500, but defendant paid only $4,000 on account thereof; nevertheless, plaintiff, upon repeated promises to pay the balance, went on and laid a half mile of single track, but failing to receive such balance, discontinued the work and brought this action to recover damages, claiming the prospective profits of the whole contract, together with the value of the work actually done.

Prospective profits as damages for breach of contract are not allowed in all cases. They are recoverable where the breach prevents performance by the other party and thus deprives him of the opportunity to earn his profits under the contract, as where there is a refusal to accept performance, or to permit it; and the plaintiff’s claim, therefore, is substantially one for not accepting goods bargained and sold,” Masterton v. City of Brooklyn, 7 Hill, 61; P. W. & B. R. R. Co. v. Howard, 13 How. (U. S.), 307; Canda v. Wick, 100 N. Y., 127; Underhill v. N. A. K. G. Co., 36 Barb., 354; Hill v. Blake, 97 N. Y., 216; Pope v. Porter, 102 id., 366; 2 St. Rep., 61; Norrington v. Wright, 115 U. S., 188.

Prospective profits are also recoverable where the breach complained of is the failure to fulfil an obligation which is a condition precedent to performance by the other party, and upon the fulfilment of which such performance is dependent. Mansfield v. R. R. Co., 102 N. Y., 206; 1 St. Rep., 390. Where the conduct of the party in default evinces an intention to abandon the contract or not tobe bound by it, the effect is the same as where his act prevents performance by the injured party. Norrington v. Wright, supra; Mersey Co. v. Naylor, 9 App. Cases, 434-9.

A failure to make stipulated payments of money for instalments of work done under a contract is not, in the absence of special provision in the agreement or peculiar circumstances, a breach of a condition precedent to performance by the other party. It is, ordinarily, an obligation which does not precede, but follows, performance under a contract for work, labor and materials, cases last cited, and while default in payment of an instalment may justify the aggrieved party in suspending the balance of the work or terminating the whole contract, because default in a payment may, like default in the performance of any part of the work, be a breach of the whole contract, Gardner v. Clark, 21 N. Y., 399; Catlin v. Tobias, 26 id., 217; Elting Woolen Co. v. Martin, 5 Daly, 417, yet the continuance of the work or its completion is not necessarily dependent upon payment for a portion already performed.

It cannot be urged that the failure of defendant to make the payment complained of prevented in any way_ the plaintiff from continuing and completing its work, and it only remains to consider whether the acts of the defendant afforded any ground for the inference of an intention to terminate the contract or not to be bound by it. The evidence wholly fails to support such a contention. The situation of the defendant appeared to be simply one of temporary pecuniary embarrasment. He experienced difficulty in raising the money to pay the $8,500 balance due for the materials delivered at the work, but the extensive correspondence of the parties shows that he repeatedly urged the plaintiff to proceed, with promises of money to be raised if progress were made with the work. He had paid $4,000 in cash on account of the material and had previously turned over to the plaintiff rails of the agreed value of $5,560.22, for which he was entitled to a credit of $5,000 on the final payment under the contract. Part of these rails were used in laying the half mile track, and the rest were in plaintiff’s possession. At the time the latter stopped work, it- had received from defendant money and property to the amount of $9,560.22, as against $5,600; the value of the whole work done in laying the half mile of single track. This fact alone is almost conclusive against the inference that defendant intended to put an end to the contract or to prevent plaintiff from completing it, or to evade responsibility himself on account of it.

There being in this case, therefore, merely a default in the payment of an instalment due, and performance by plaintiff not being dependent upon such payment, nor prevented by the nonpayment, the plaintiff was not entitled to claim as damages the profits it would have earned if it had gone on and completed the contract, Moore v. Taylor, 42 Hun, 45; 5 St. Rep., 202; but it had the right to refuse to proceed further with the contract and to sue for a recovery for the work actually done. Flaherty v. Miner, 123 N. Y., 382; 33 St. Rep., 681; Canal Co. v. Cordon, 6 Wallace, 561; Phillips Co. v. Seymour, 91 U. S., 646.

The plaintiff availed itself of its right to refuse to proceed with the work, and in effect rescinded the contract. This is apparent from plaintiff’s letters notifying defendant that no more than the half mile of single track would be laid until the money due was paid, and also that in view of defendant’s breach plaintiff did not consider itself further bound by the contract; and finally by the ultimate abandonment of the work by plaintiff before this action was commenced. This entitles plaintiff to recover for the value of the work and materials already done and furnished in laying the half mile of single track. The value of this work is $5,600, but as the contract is rescinded the defendant is entitled to set off against that sum the $9,650 which plaintiff has already received to be credited on future payments. Nothing, therefore, is due plaintiff, and the direction of a verdict in favor of the defendant was proper.

Motion for a new trial denied, and judgment ordered for defendant, with costs.

Bischoff, J., concurs.


text:
    The Mitchell Vance Co., App’lt, v. Mina Daiker, Impl’d, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    Mechanic’s lien—Owner.
    Defendant contracted to purchase certain premises with the gas fixtures, which were to be supplied by the vendors. At the request of the vendors plaintiff furnished such gas fixtures and completed the work before, but did not file a lien until after the premises were conveyed to defendant. Held, that defendant was not the owner of the property within the meaning of the statute and could not consent as such; that her interest during the progress of the work was that of a mere vendee, and that the lien was not effective against her.
    Appeal from a judgment of the district court in the city of New York for the third judicial district, dismissing the complaint against the defendant Daiker, in an action brought for the foreclosure of a mechanics’ lien, claimed pursuant to the nrovisions of chap. 342, Laws of 1885.

      James S. Stearns, for appl’t; Joseph Fettretch, for resp’t.
   Bischoff, J.

Except in a case of manifest injustice this court will not reverse the judgment of a district court on questions of fact which were determined upon conflicting evidence; and, for the purposes' of this appeal, therefore, we must assume that the justice below determined the fact of defendant Daiker’s oral consent to the performance of the services and the supply of the materials for which the lien was claimed against the appellant and in favor of the respondent. Weiss v. Strauss, 39 St. Rep., 78.

The facts undisputed, however, on the trial, and upon which appellant predicates its claim that the dismissal of the complaint against the defendant Daiker was error, were: that on Septem ber 6th, 1890, defendants Burchell and Hodges were copartners in business, and joint owners of the premises 1384 Amsterdam avenue in the city of ¡New York; that on the day mentioned they entered into an agreement in writing for the sale and conveyance of the premises, inclusive of the gas fixtures then remaining to be supplied, to the defendant Daiker; that after the making of that agreement, plaintiff, at the request of Burchell & Hodges, and upon their promise to pay therefor, equipped the premises with the necessary gas fixtures, and in so doing rendered services and furnished materials of the aggregate value of one hundred and nine dollars and nine cents ; that such services and materials were not fully rendered and furnished until ¡November 7th, 1890; that on October 28th, 1890, Burchell conveyed his interest in the premises to his partner Hodges who, by deed dated and recorded Movember 11th, 1890, conveyed the entire premises to defendant Daiker, and that on December 3rd, 1890, plaintiff caused its notice of lien to be filed against defendants Burchell, Hodges and Daiker, of which notice was given to each of them within the time required by law.

The fact -that the agreement between Burchell & Hodges and Daiker, for the sale of the premises to the latter, required the vendors to supply the gas fixtures intended for use therein, is relied upon by appellant as evidence .of defendant Daiker’s consent to the performance of the services and the supply of the materials above mentioned, within the meaning of the Mechanics’ Lien Law (Laws of 1885, chap. 342).

Assuming that the defendant Daiker did consent to the supply of the gas fixtures by the plaintiff, still it does not follow that the notice of lien was effective as against her. Section 1 of the Mechanics’ Lien Law referred to defines the “ owner,’’ upon whose consent to the performance of the services, or the supply of materials, a valid lien may be acquired for the amount due therefor, to be either the owner of the fee, or of a less estate, or a lessee, for a term of years, or a vendee in possession under a subsisting contract of sale, or the owner of some right, title or interest which may be sold under execution, and the undisputed facts, stated above, fail to show that defendant Daiker was either. The owners of the fee, at the time when plaintiff’s services were performed or its materials furnished, were Burchell & Hodges, and defendant Daiker’s interest in the premises was that of a mere vendee, which could not be sold under execution, Bates v. Lidgerwood Mfg. Co., 20 St. Rep., 778; Higgins v. McConnell, 56 Hun, 277; 30 St. Rep., 958, and it does not appear that defendant Daiker was in possession.

Rollins. Cross, 45 N. Y., 766; Otis v. Dodd, 90 id., 336, and Schmalz v. Mead, 125 id., 188; 84 St. Rep., 779, cited by appellant are not authority for the claim made for it on this appeal. Hollin v. Cross was the case of a lien claimed under Laws 1862, chap. 478, which did not define the owner ” whose interest could be subjected to the lien, and no more was held than that a vendee in possession at the time services were performed and the materials furnished and who subsequently acquired the fee was an “ owner ” within the meaning of that act. In Otis v. Dodd it appeared that the owners of the land had leased it to another who pursuant to the terms of the lease was required to build and it was held that the owner’s consent to the performance of work upon the building sufficiently appeared from the lease. So in Schmalz v. Mead the owner of the land had agreed to sell it under a contract by which the vendee was entitled to possession and required to build before he should become entitled to the delivery of the deed of conveyance to him, and the court decided that the facts established the owner’s consent to the performance of work upon the buildings which the vendee had undertaken to erect.

Section 5 of the Mechanics’ Lien Law (Laws 1885, chap. 842) still further provides that the owner who has made an agreement to sell the premises shall for the purposes of the act continue to be the owner until the actual delivery of the deed to the purchaser. Thus, Burchell and Hodges were the owners up to October 28th, and from that time Hodges up to November 11th, when defendant Daiker became the owner by delivery and record of the deed to her. Hence, defendant Daiker could not in the sense of “ owner ” have consented to the performance of services and the supply of materials by plaintiff prior to the time she became such.

The judgment appealed from should be affirmed, with costs.

Daly, Ch. J., and Pryor, J., concur.


author: Pryor, J.

text:
    The Lambon Consolidated Store Service Co., App’lt, v. George C. Hartung, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    Evidence—Parol to vary written contract—When contract com> plete—Warranty.
    When a written oiler, containing expressly or by implication all the engagements appropriate and necessary to the agreement is signed by one. party and accepted by -the other, it constitutes such a complete contract that oral evidence is inadmissible to add to its terms, and if such a contract be an executory agreement for the sale of a chattel, a warranty of the thing sold is not open to proof by paroi testimony.
    Re-ARGUMENT of appeal from judgment of a district court. See 45 St. Rep., 50.
    Action for balance of purchase price of a chattel. The contract sued on is as follows:
    “ June 24, 1891.
    “ To Damson Consolidated Store Service Co,

    “ Boston, Mass.:

      “ Please ship two No. 7-25 Adding Register to No. 775 9th Avenue, New York, for the use of which the undersigned agree to pay you for two Registers so shipped as follows: $75 cash on delivery, and $75 each month, until the sum of $300- for two Registers so shipped has been paid, then said Registers to become the property of the undersigned.
    “ It is specially agreed that until said sum is fully paid the undersigned are to have the custody only of said Register, the title and right of possession remaining in the Lamson Consolidated Store Service Company; and the undersigned are to use said Register in a reasonable manner, and are not to remove it from the said premises without the consent of said company in writing first obtained.
    “ If any part of said sum is not paid as and when agreed, or if the above contract is in any way broken, said company may enter the premises where said Register is situated, and remove the same without process of law, and the undersigned shall have no right to recover any portion of the amount theretofore paid for use of said Register.
    “ Register shipped June 29, ’91.
    “ Plate No. 70454, 70459.
    “No. 849.
    “ Geo. C. Hartung,
    “775 9th Ave."
    (On margin) : “ Change and pint key and tablets. P. A. S.’
    The judgment below was reversed because, among other grounds, of the admission of oral evidence of a warranty by the seller.

      Theodore H. Friend, for app’lt; Louis F. Doyle, for resp’t.
   Pryor, J.

Assuming for argument that the evidence suffices to establish a warranty by the plaintiff, and that under the answer the defendant was privileged to prove it, the question is: Whether the order for the registers constituted such a contract as precluded parol evidence of the warranty ?

The rule is' fundamental and familiar, that if a paper appear on its face to be a complete contract, then, in the absence of fraud, accident or mistake, paroi evidence is inadmissible to enlarge its terms, the conclusive presumption of law being that such paper embodies the entire agreement of the parties.

And, whether or not a writing, upon its face, be a complete expression of the agreement of the parties is for determination by the court. Harrison v. McCormick, 89 Cal., 327: 23 Am. St 469.

Purporting to be a conditional sale of chattels, the paper in question specifies the conditions, names the seller and buyer, identifies the things sold, states the price, times of payment and place of delivery; in this enumeration what element requisite to the completeness of such a contract is wanting? True, the paper is signed only by defendant, the buyer; but the acceptance of it and delivery of the chattels pursuant to its provisions makes plaintiff, the seller, as essentially a party to it as would be implied by a formal subscription. Mason v. Decker, 72 N. Y., 595; Dent v. S. S. Co., 49 id., 390; Pierson v. Morch, 82 id., 503; Sands v. Crooke, 46 id., 564, 570; McCrea v. Purmort, 16 Wend., 460.

The plaintiff being thus a party to the contract and bound by its terms, the position is untenable that the paper contains and exhibits only the agreement of the defendant. By acceptance of the order plaintiff incurred an obligation to fulfil it, and that obligation the paper distinctly defines. If the paper imports an agreement on the part of the defendant to buy and pay the price, it equally expresses an agreement on the part of the plaintiff to sell and accept the price. If the paper imports that the chattels are to continue the property of the seller until paid for, it equally expresses that the chattels are to become the property of the defendant when paid for. In a word, the paper signed by the defendant and accepted by the plaintiff comprises and exhibits the agreement of both parties; and as constituting on its face a complete contract, each party is estopped to say that it is incomplete because not containing a term resting in paroi. If oral testimony be admissible to show the incompleteness of an apparently complete agreement, then, manifestly, nothing remains of the immemorial and salutary rule, that paroi evidence is incompetent to alter a written contract.

The conclusion is as clear upon authority as upon principle. Thomas v. Scutt, 127 N. Y., 133; 38 St. Rep., 692; Eighmie v. Taylor, 98 N. Y., 288; Seitz v. Machine Co., 141 U. S., 510; Dent v. S. S. Co., 49 N. Y., 390.

The cases cited to the contrary of the proposition are distinguishable. In Routledge v. Worthington, 119 N. Y., 592, 596; 30 St. Rep., 195, “ there-was no written contract between the parties,” and the oral evidence was of a collateral and independent agreement. In Chapin v. Dobson, 78 N. Y., 74, the original contract was oral and entire, and only a part of it was reduced to writing. In Curtis v. Soltau, 16 Daly, 490; 34 St. Rep., 767, a latent ambiguity lurked in the language of the agreement, namely, whether the sale was by sample, and such ambiguity is always open to paroi explanations. In Toccio v. Arata, 16 Daly, 494; 36 St. Rep., 42, it is not apparent from the report but that the oral evidence went only to prove some collateral and independent stipulations. Besides, the writing purported to contain the obligation of but one party; whereas here the contract comprises the engagements of both parties, e. g., of the plaintiff that on full payment the registers should become the property of the defendant In Brigg v. Hilton, 99 N. Y., 517, and in Wise v. Rosenblatt, 16 Daly, 496; 34 St. Rep., 1005, the instruments could not be construed as being the whole contract between the parties. In Van Brunt v. Day, 81 N. Y., 251, the evidence was of an independent collateral agreement.

Perhaps it may be deemed important, in deciding of which party the paper expresses the undertaking, to ascertain from whom it emanated. If it came as an overture of purchase from the defendant, then, possibly, it might be construed as containing only the terms upon which he proposed to buy; and in this aspect we have hitherto contemplated it In fact, though ostensibly an order from the defendant, plainly the paper was prepared by and proceeded from the plaintiff, and so declared the terms upon which he offered to sell; that is to say, his undertaking. Accepted and signed by the defendant, then exhibited the obligations of both parties.

In our judgment, after the paper was subscribed by one and accepted by the other party, it was quite immaterial from whom it issued in the first instance ; and we advert to the fact that it was actually an offer of sale by the plaintiff only to demonstrate that, by the defendant’s own argument, it expressedfthe engagement as well of seller as of buyer.

We affirm these propositions as true beyond doubt or discussion, namely, that where a written offer, containing, expressly or by implication, all the engagements appropriate and necessary to the agreement, is signed by one party and accepted by the other, it constitutes such a complete contract between them that oral evidence is inadmissible to add to its terms ; and that if such a contract be an executory agreement for the sale of a chattel, a warranty of the thing so sold is not open to proof by paroi testimony.

It results, therefore, that the order reversing the judgment was correct; and that it must be re-affirmed, with ten dollars costs and disbursements.

Bookstaver and Bischoff, JJ., concur.


text:
    Rose Heyman et al., Resp’ts, v. Sigmund A Schmidt, App’lt.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    Evidence—Defense to contract proved but not pleaded.
    Where the plaintiffs are permitted to prove a different contract from that set up in the complaint, defendant is entitled to the benefit of any defense he may have to the contract proved, and plaintiffs cannot be heard to object to his proof of such defense on the ground that it is not pleaded.
    Appeal from a judgment of this court entered upon a verdict directed for the plaintiff.

      Joseph C. Rosenbaum, for app’lt; Richard M. Henry and Charles Meyers, for resp’ts.
   Daly, Ch. J.

It was alleged in the complaint that the plaintiffs employed the defendant to sell their goods upon a commission of ten per cent; that they had advanced him $847.86 in excess of commissions which he had earned, and that they were entitled to the return of that sum. The answer was a general denial. On the trial the plaintiffs proved a different contract, namely: an agreement by which the defendant was to receive five per cent commissions and eight dollars a day for traveling expenses, plaintiffs to pay him thirty dollars a week on account of commissions. The moneys which plaintiffs seek to recover back were paid under that agreement; and the defendant attempted to show that by a modification thereof the thirty dollars a week was to be paid to defendant in the nature of a salary. The plaintiffs objected to this evidence on the ground that it was not pleaded, and the proof was excluded.

The plaintiffs having been permitted to prove a different contract from that set up in their complaint, the defendant was entitled to the benefit of any other defense which he could make to the contract proved. The plaintiffs, having first disregarded the pleadings, could not invoke them to restrict the defendant. The answer of the latter was interposed to the cause of action pleaded, and not to that which was proved, and he ought not to be confined to pleadings which had no reference to the issue to be tried. “ IE the action was to be tried in disregard of the pleadings, defendant was entitled to the benefit of any defense which the evidence disclosed. It would be manifestly unjust to permit plaintiff to secure the benefit of a new cause of action not embraced m the pleadings and refuse to defendant the corresponding benefit- of a defense not thus disclosed.” Arnold v. Angell, 62 N. Y., 508.

J ndgment reversed and a new trial ordered, with costs to abide the event.

Bischoff and Pryor, JJ., concur.


text:
    The Hungerford Co. Resp’t, v. Clara Rosenstein, App’lt.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    Evidence—Pabol to vaby written contract. .
    Where the agreement for the sale of, goods is in writing and is in evidence, evidence to prove a contemporaneous paroi warranty is inadmissible.
    Appeal from a judgment for plaintiff entered upon the verdict of a jury, and an order denying defendant’s motion for a new trial. Action to recover a balance of purchase money agreed to be paid for the sale and delivery of specified' machinery, and for work, labor and services rendered and materials furnished at defendant’s request

      William B. Ellison, for resp’t; H. Aplington, for app’lt.
   Bischoff, J.

The complaint declared upon two causes of action; the first for the unpaid balance of the purchase money agreed to be paid for the sale and delivery of certain machinery to defendant, and the second for work, labor and services rendered, and materials furnished, at defendant’s request.

There was no motion to dismiss the complaint, or for the direction of a verdict for defendant, and the sufficiency of the evidence to support plaintiff’s recovery upon both causes of action was thus conceded. The learned trial judge also charged the jury, without objection or exception by defendant, that the second cause of action remained undisputed, and that in any event a verdict should be rendered in favor of the plaintiff therefor, and the only exceptions, therefore, which may be urged as presenting ground for reversal, are those relating to the rulings on the trial. -

Defendant offered to show by the testimony of witnesses that at the time of entering into the agreement for the sale of the machinery plaintiff had warranted their fitness lor certain purposes. It appeared from the complaint, and was admitted by the answer, that the agreement was in writing, and the agreement itself was in evidence. Under precisely like conditions we have held that evidence to prove a contemporaneous paroi warranty is inadmissible. See opinions in Lamson Consol. Store Service Co. v. Hartung, 45 St. Rep., 50, and same case on reargument herewith handed down, 46 St. Rep., 191.

The judgment and order appealed from should be affirmed, with costs.

Pryor, J., concurs.


text:
    Edward Myers, Resp’t, v. The Metropolitan Elevated Railway Co. et al., App’lts.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    Railroad—Elevated—Evidence.
    In an action for an injunction and damages against an elevated railroad, evidence tending to show that since the construction of the road the rental value of premises in the same street in the vicinity of plaintiff’s premises has been diminished is admissible.
    Appeal from a judgment for the plaintiff, entered upon the verdict of a jury.
    Action by an abutting owner to recover past damages sustained by reason of the erection, maintenance and operation of defendants’ elevated railroad in front of his premises, Ho. 201 South Fifth Avenue in the city of New York.

      Henry Schmitt, for resp’t; Davies & Rapallo, for app’lts.
   Bischoff, J.

The learned trial judge, against the objection of defendant’s counsel, admitted testimony for the plaintiff tending to show that, since the construction and operation of defendants’ elevated railroad on South Fifth Avenue, the rental value of premises on the same street in the vicinity of plaintiff’s premises had been diminished, and the exceptions to the admission of this evidence are urged as presenting error which requires the reversal of the judgment appealed from.

The evidence, however, was admissible under the rulings made by the court of appeals. It was in respect to similar evidence that Judge Finch says, in Drucker v. Manhattan Railway Co., 106 N. Y., 157; 8 St. Rep., 599, “ Objection was made to the proof that since the building of the elevated road the trade and business of Division street had fallen off, and the current of custom has largely lessened in volume and changed in character, and upon the ground that injury to the plaintiff and not to his neighbors was alone material. But to measure and appreciate that individual loss, the nature and extent of the general injury was necessarily to be considered. To ascertain how much the plaintiff was injured by the impairment of his easement required a survey of the general facts, and a deduction from them of the special and particular damage to be estimated.”

In Doyle v. The Manhattan Railway Co. et al., 128 N. Y., 488; 40 St. Rep., 474, it was held, to be competent for either party to show the general effect of the operation of the road upon other premises abutting upon the street, in the vicinity of, and similarly situated with plaintiff’s, where it appears that damages claimed by plaintiff, if actually sustained, must have been common- in the vicinity along the street, and because evidence of that character which was offered by defendants had been excluded the judgment was reversed.

No other errors are claimed, and the judgment and order deny, ing defendant’s' motion for a new trial should therefore be of. firmed.

Judgment and order affirmed, with costs.

Bookstaver," J., concurs.


text:
    The Knickerbocker Company, Resp’t, v. Charles I. Roskopf, Appl’t.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    Appeal-—Demurrer— City court of New York.
    A judgment of the general term of the city court, affirming an interlocutory judgment sustaining a demurrer, with leave to plead anew, and directing that m default of such pleading final judgment may he entered, is only interlocutory and not a final judgment, and an appeal will not lie therefrom to the common pleas.
    Appeal from an interlocutory judgment of the general term of the city court, affirming an interlocutory judgment of that court rendered at special term, and sustaining a demurrer to defendant’s counterclaim, with leave .to defendant to serve an amended pleading.

      George Walton Green, for resp’t; Mitchell L. Erlanger, for app’lt.
   Bischoff, J.

The judgment of the general term of the court below, from which this appeal is attempted to be taken, does not finally adjudge plaintiff’s recovery upon the demurrer interposed to defendant’s counterclaims. The judgment purports to accomplish no more than to affirm the interlocutory judgment, which was directed at special term, and adjudged that the demurrer be sustained, with leave to defendant to “ plead anew ” within six days after its entry and service, or that in default of such pleading plaintiff may thereafter enter final judgment dismissing the counterclaims.

In Fuller v. Tuska, 43 St. Rep., 523, we held that a judgment of the general term of the city court in all respects like the one under consideration is in itself only interlocutory, and not a final judgment, within the meaning of § 3191 of the Code of Civil Procedure, which is our only authority for entertaining appeals from the city court.

It was within the province of the general term of the city court to direct the entry of final judgment for the plaintiff upon its affirmance of the interlocutory judgment rendered at special term, Flatow v. Von Bremsen, 44 St. Rep., 302, and had such a judgment been rendered, the determination of the general term would have been reviewable by us upon a direct appeal therefrom. As it is we are without jurisdiction.

Appeal dismissed, with costs.

Daly, Ch. J., concurs.


author: Bookstaver, J.

text:
    Gabriel Jourdan, Resp’t, v. Warren M. Healey et al., App’lts.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    1. Appeal—District courts—Code Civ. Pro, § 3057.
    Section 3057 of the Cede refers exclusively to appeals from justices’ couits, and not to appeals from district courts.
    2. District courts—Adjournment—Surprise.
    A district judge has ample power under chapter 334, Laws 1857, to adjourn the tiial of an action to enable the defendant to procure witnesses to meet testimony of the plaintiff which could not have been anticipated from the pleadings, if in his discretion he thinks such an adjournment should be granted.
    Appeal from a judgment rendered in the district court of the city of New York for the third judicial district.

      Robert Thorne, for app’lts; Emile B. Morel, for resp’t.
   Bookstaver, J.

Although the appellant has appealed from the judgment rendered in the court below, he relies chiefly upon an error in fact in the proceedings at the trial, and upon the argument presented affidavits setting forth what he regarded as such error. For this procedure appellant relies upon § 8057 of 'the Code of Civil Procedure, which provides that “ where an appeal is founded upon an error in fact in the proceedings not affecting the merits of the action and not within the knowledge of the justice, the court may determine the matter upon affidavits, or in its discretion upon the examination of witnesses, or in both methods b.ut after a careful examination we are convinced that this section refers exclusively to appeals from justices’ courts and not to appeals from district courts. This section is a part of article 1, title 8, of the Code, which relates exclusively to appeals from justices’ courts. As far as we have been able to discover, no such provision is made for appeals from the district courts of this city. But if the section under consideration did apply, we think the alleged error shown in the affidavits not covered by the provisions of that section. The errors in fact referred to in that section relate to some incapacity of the party, such as infancy, coverture, or some irregularity in the service of process, or misconduct of the jury, or other error not within the knowledge of the justice at the time of the trial. Biglow v. Sanders, 22 Barb., 147, 149; Adsit v. Wilson, 7 How. Pr., 64, 68, 69; Kasson v. Mills, 8 id., 877; Hurd v. Beeman, id., 254; Wavel v. Wiles, 24 N. Y., 685, 637. But the error complained of was fully within the knowledge of the justice on the trial, and he denied the motion to adjourn on the ground that he had no power to do so.

From the return it appears that the action was brought by the plaintiff against the defendants to recover wages which the former claims to have earned from the latter under a contract made, as he claimed on the trial, with the defendant Healey personally. As all contracts of that character, according to the custom of the house, were made not by Mr. Healey, but by defendant’s foreman, who was present’ at the trial, and as the pleadings did not disclose that it was claimed to have been made with either of the defendants personally, we think they were not guilty of negligence in not having Mr. Healey present as a witness, and it is apparent from the return that the testimony of the plaintiff was a surprise to the defendants, and they immediately moved for an adjournment for a time long enough to procure the attendance of Mr. Healey. This the court below refused on the ground that it had no power to adjourn a case after trial commenced, except by consent. The learned judge who made this decision doubtless had in mind, at the time of rendering it, the cases of Edwards v. Drew, 2 E. D. Smith, 55; Aberhall v. Roach, 11 How. Pr., 95; Wight v. McClave, 3 E. D. Smith, 316; Story v. Bishop, 4 id., 423; Giberton v. Ginochio, 1 Hilt., 218; Redfield v. Florence, 2 E. D. Smith, 339, decided in this court, which abundantly sustain his ruling. But all of these cases were decided before the act of 1857, chap. 344, § 78, which expressly provided that the trial of an action or special proceeding may be continued from day to day, or from one day to any other day or days, until the same is finished.” This provision was retained in the consolidated act of 1882. We think it gives the district judge ample power to adjourn a case, under circumstances like these, for a sufficient time to procure the attendance of witnesses, if in his discretion he thinks such an adjournment should be granted, and from the return it appears that the justice did think so, as he said on denying the motion, If I had such a right, I should certainly give you an opportunity to bring Mr. Healey.”

Although not necessary to a decision in this case, it may be added that even in justices’ courts it has been held that after amendment it was discretionary with the justice to grant an adjournment or not on the ground of surprise. Sherar v. Willis, 5 Lans., 329. So, too, it was long ago held that it was a matter of discretion on the part, of the justice to hold a case open in order to allow one or the other parties to obtain witnesses, and that it was not error to do so for a period of two hours. Pease v. Gleason, 8 Johns., 409. And in Day v. Wilber, Coleman & Caine’s Cases, 381, 385, in was held that it was not error to continue the case from the 2d of June, when the venire was returned, to the 3d of that month, when the cause was tried; and on appeal in that ease it was said, “ there is nothing in the law to prohibit a justice from continuing his court from one day to the next when the exigencies of the case require it” Although it is true that in Green v. Angel, 13 Johns., 469, it was decided that, under the circumstances in that case, holding it open for twenty hours to procure the attendance of a witness was unreasonable. It, therefore, seems that the matter of continuing the case is in the sound discretion of the justice. See, also, Cowen’s Treatise, §§ 1219, 1220.

But, in addition to this, it may be said that the decisions of this court, above cited, were rendered when it had no power to grant a new trial as it now has, and, on a review of this case, we are of the opinion that justice-requires a new trial should be had, even had no error of law been shown, under Curley v. Tomlinson, 5 Daly, 283.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.

Bischoff, J. concurs.


author: Mayham, P. J.

text:
    William Bookheim, Resp’t, v. Thomas Alexander, Impl’d, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 2, 1892.)

    1. Bills and notes—Bona fide holder. .
    A note for $100 was transferred to plaintiff before maturity, who paid $20 therefor and gave a credit of $80 for meat which had been bought by the transferer on an agreement to pay cash. Held, that this made the plaintiff a bona fide holder, and that it was not error to exclude evidence as to the equities between such transferer and defendant, who was a prior endorser.
    2. Same—-Direction of verdict.
    When the plaintiff’s right to recover rests solely on his own testimony, or where his evidence is a necessary element to a recovery, and stands alone, the credit to which he is entitled is a question for the jury, and it is error for the court to refuse to submit such question, and to direct a verdict.
    Appeal from a judgment entered upon a verdict by direction of the court at the circuit.

      Nathaniel Niles, (Albert Hessberg, of counsel) for appl’t; Henry. E. Stern, (Andrew Hamilton, of counsel), for resp’t.
   Mayham, P. J.

This action was prosecuted upon a promissory note made by John H. Ruso and Harriet L. Ruso, payable to Thomas Alexander, and by him transferred by endorsement before maturity to John Gr. Myers, who endorsed the same before maturity, and transferred it to the plaintiff.

The action is prosecuted against the makers and first endorser of the note. The answer put in issue all of the allegations of the complaint except the execution and delivery of the note. The proof shows that the defendant Alexander endorsed this note and transferred it to John Cr. Myers, receiving for it at the time ten dollars in money. Myers transferred it to plaintiff for $20 cash, and a credit of $80 for meat which he bought of plaintiff on an agreement to pay cash.

The defendant Alexander testified in his own behalf, under objection of the plaintiff, to the transaction between him and Myers at the time he let Myers have the note, that he was boarding at Myers’ hotel, and wanted money, and got a loan of ten dollars, and left the note with Myers as security, and at the same time wrote his name on the back of the note at Myers’ request; this was before the note became due.

He also testified that he offered to pay Myers the ten dollars he got of him, at the time he let him have the note, and five dollars for the use of it. This evidence was objected >to by the plaintiff and stricken out on his motion, and at the conclusion of all of the evidence the trial judge directed a verdict for the plaintiff for the amount of the note and interest, on which judgment was entered.

The defendant insists that the plaintiff was not a bona fide holder of this note for value, and that he therefore took this note Subject to all the equities existing against it in the hands of Myers, and that as between Myers and Alexander there never was a bona fide transfer of the note, but that Myers took it as security for a loan of ten dollars.

Whether this contention is sound depends upon the transaction between the plaintiff and Myers. The legal presumption arising from the transfer is that he took it before maturity and for value. In Merchants & Traders’ Bank v. Crow et al., 60 N. Y., 87, it was held that the holder of a negotiable promissory note is presumed to be a bona fide holder for value, without notice of any defense to the instrument, and proof of want or failure of consideration between the original parties did not change that presumption, or put the holder to proof of the consideration upon which he received the paper. In the same case it was held that when the note was taken by the holder before maturity and paid for in part in cash, and the balance in payment of a past due note of the endorser, the holder became a bona fide holder for value; citing Brown v. Leavitt, 31 N. Y., 113; Pratt v. Coman, 37 id., 440; Chrysler v. Renois,43 id, 209: Weaver v. Barden, 49 id., 286, and holds that a verdict for the plaintiff was properly directed by the court. The points discussed and disposed of in the above cases are applicable to the case at bar. The plaintiff received the note before maturity. He paid cash at the time in part and turned in a cash obligation of the endorser in part payment for the balance.

The plaintiff within these authorities being a bona fide holder of this note, it was not error to exclude the testimony of the defendant, Alexander, as to the equities existing between him and Myers, his endorsee.

By endorsing the note and putting it in circulation a subsequent holder became entitled to rely implicitly upon such endorsement, and he is estopped from denying the validity of that endorsement as against an innocent holder of the note, without notice of any equities in favor of the endorser.

But it is insisted on the part of the defendant that all of these facts depend upon the testimony of the plaintiff and that as there was no other witness to support the plaintiff’s case than himself, the case should for that reason alone have been submitted to the jury, and the refusal of the learned judge to submit it was for that reason error for which the judgment should be set aside.

With the testimony of the defendant out of this case its determination must to a great extent depend upon the credence that attaches to the testimony of the plaintiff. His testimony, with the corroboration only of the possession of the note, and the endorsement of the defendant, established Ms right of recovery if that right is established in this action.

It has been repeatedly held that when the plaintiff’s right to recover rests solely on his testimony or when his evidence is a necessary element to a recovery and stands alone, the credit to which he is entitled is a question for the jury. In Joy v. Diefendorf, 40 St. Rep., 491, the principal defense relied upon to defeat a recovery was that plaintiff was not a bona fide holder of the noté, and the only witness on the part of the plaintiff to establish that proposition was the plaintiff’s own evidence, and a verdict for the plaintiff under the direction of the court was set aside and judgment entered thereon reversed on the ground that the question should have been submitted to the jury.

To the same effect is the case of Vosburgh v. Diefendorf, 119 N. Y., 357; 29 St. Rep., 448; Canajoharie Nat. Bank v. Diefendorf 123 N. Y., 191; 33 St. Rep., 389. We think this case comes within the principle of those decisions and that this case under proper instructions should have been submitted to the jury, and that the refusal of the learned judge to submit it on the request of the defendant’s counsel was error.

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

Putnam, J., concurs ; Herrick, J., not acting.


author: Herrick, J.

text:
    William H. Finley, by Guardian, Resp’t, v. The Hudson Electric Railway Co., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 2, 1892.)

    Negligence—Railboad.
    Plaintiff, a boy eight years old, fell and was injured while trying to get on one of defendant's cars, by invitation of the motor man in payment for services in opening a switch. It appeared that the company had forbidden their employes to allow boys to do so, and that the car was going slowly. Held, that the motor man was not acting within the scope of his duty ‘in inviting plaintiff to ride, and that defendant owed him no duty as a passenger or guest, and was not liable.
    Appeal from judgment in favor of plaintiff, "entered upon verdict, and from order denying motion for a new trial.
    Action for injuries alleged to have been caused by defendant’s negligence. Plaintiff, while endeavoring to get on one of the defendant’s cars, after opening a switch for the car, slipped and fell under the car, which passed over his left leg and injured it so that it had to be amputated about four inches below the knee.

      R. E. Andrews (L. F. Longley, of counsel), for app’lt; Cady & Hoysradt (J. Rider Cady, of counsel), for resp’t.
   Herrick, J.

The car of the defendant was moving at a moderate rate of speed, and carefully, through the streets, so that no duty that the defendant owes to other users of the street was violated. The plaintiff was not seeking to obtain passage as a passenger ; he was not expecting or expected to pay fare, and the defendant owed no duty to him as a passenger. Connolly v. Knickerbocker Ice Co., 114 N. Y., 104-9; 22 St. Rep., 675; Fleming v. B. C. R. R. Co., 1 Abb. N. C., 433; aff’d, 74 N. Y., 618; Buckley v. N. Y. & H. R. R. Co., 43 Supr. Ct., 187.

But it is claimed that the plaintiff was getting upon the car by invitation of the motor man or conductor, in payment for his services in opening a switch for the motor man; assume that to be the fact, in doing so the motor man was not acting within the line of his duty, neither was he doing it in furtherance of the defendant’s interest or for its benefit. Ho benefit was to be derived by the defendant from the motor man’s act Hot only is it not within the scope of his employment to invite people to ride free, or to employ others to assist him in the performance of his duties and compensate them by free transportation, but in this particular case the defendant, for the purpose of breaking up a practice of the kind in question, had ordered their motor men not to permit or allow it, and had made rules against it

The master is liable only for the authorized acts of the servant; those done within the scope or line of the servant’s employment. The root of the master’s liability for the servant’s acts is his consent, express or implied, and when his acts are done within, the scope of his employment, or for his master’s benefit, or in furtherance of his interest, although not strictly in the line of his duty, yet in the course of his employment the master’s assent is implied, and he is accordingly held liable. Mehan v. Morewood, 52 Hun, 566; 23St. Rep., 487; Mulligan v. N. Y. & R. B. R. Co., 129 N. Y., 506; 42 St. Rep., 83.

And as in the case .of Quinn v. Power, 87 N. Y., 535, where although the servant departed from the strict line of bis duty, yet what was done was in the line of his business for the master’s benefit in furtherance of his interests, and what the master might naturally have done if he had been present.

The proposition of law is beyond dispute; the difficulty is, as in most cases, in applying it

The scope of the motor man’s duty as motor man, or driver of the car, was to conduct or drive the car carefully through the streets; as conductor, for he seems in this case to have been both motor man, or driver, and conductor, it was his duty to see to the welfare of passengers, or those seeking to become passengers; he owed as the servant of the defendant a duty to no one else; the plaintiff was not injured by reason of any neglect of duty that the defendant owed to other users of the streets; neither was he injured by any neglect of duty that the defendant owed to him as a passenger, or one seeking to become a passenger, and it was not within the scope of the conductor’s duty to invite him on the car as a guest, and as such the defendant was under no obligation of duty to him.

It seems to me that it was not a part of the motor man or conductor’s business, or within the scope of his employment, or for the benefit of the defendant or in furtherance of its interest, to invite the plaintiff upon the car under the circumstances in this case, and hence that the defendant’s assent thereto cannot be implied.

For these reasons judgment should be reversed and a new trial granted, dosts to abide the event

Mayham, P. J., and Putnam, J., concur,


text:
    James Thompson, Jr., App’lt, v. Isaac M. Narwood et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed July 2, 1892.)

    Venue—Charge op—Assault.
    Although an action for assault and battery and false imprisonment is a transitory one and may be tried in a county other than that where the.principal transactions occurred, yet, everything else being equal, the court may regard that as an important, if not a controlling factor in determining where the trial should be had.
    Appeal from an order changing the place of trial of this action from Rensselaer county to Kings county.

      Frank While (Thomas S. Fagan, of counsel), for app’lt; Jackson & Burr (Joseph A. Burr, of counsel), for resp’ts.
   Mayham, P. J.

action is for an alleged assault and bat tery and false imprisonment of the plaintiff by the defendant in the city of Brooklyn, Kings county. .

The motion is made on the ground of convenience of witnesses; but although this is a transitory action and may be tried in a county other than where the principal transactions which are the subject of controversy occurred, yet, everything else being equal, the court may regard that as an important, if not a controlling factor, in determining where the trial should be had. In Belding v. Ladd, 27 St. Rep., 296, the court says “Where the number of material and necessary witnesses on each side is substantially equal the place where the transaction occurred ought generally to control.’’

In Maynard v. Chase, 30 St. Rep., 348, it was held that when the evidence as to the convenience of witnesses is conflicting, and there is no great preponderance, the place where the contract was made or the action is located is an important element in determining the question of a change of place of trial. It is quite probable in this case that all of the witnesses named on either side on this motion will not at the trial be actually needed or called by the parties, but the court can see that some of them are clearly necessary and material, and that among those named the witnesses actually necessary are about equal, and it is fair to presume that the learned judge at the special term reached that conclusion, and as the question of the proper place of trial upon the proof before him was one largely in his discretion, Lane v. Hancock, 29 St. Rep., 635; Green v. Weston, 31 id., 478, and as that discretion was not abused, or improvidently exercised, this court should not interfere with his conclusion.

Order affirmed, with ten dollars costs and printing disbursements to the respondent.

Putnam, J., concurs.


author: Mayhan, P. J.

text:
    The People ex rel. Benjamin W. Wooster, Resp’t, v. Edward A. Maher, Mayor, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 2, 1892.)

    1. Municipal corporations — Albany — Obstructions in streets — Mandamus.
    The common council of the city of Albany passed an ordinance requesting the mayor to direct the city engineer to serve notice on the owners of certain premises to remove a portico which encroached on the street, or in case of neglect or refusal to do so, to causejts removal. Held, under the city charter, upon the adoption of such ordinance, it was no longer discretionary with the mayor to give such direction, but became a positive legal executive duty, which could be compelled by mandamus.

    2. Same—Expiration op term op mayor.
    The fact that the term of the mayor in office when the proceeding-commenced has expired is no defense to the proceeding for mandamus in such a case, as the proceeding may be regarded as brought against the mayor as such, and not against the incumbent of that office individually, and hence the mandamus when granted will operate upon the office in the possession of the present incumbent.
    Appeal from a final order granting a peremptory mandamus, and the judgment in favor of the relator entered thereon.
    The appeal brings up for review the order granting an alternative writ, and the alternative writ, together with the verdict, report and decision thereon, and the final order directing a peremptory writ, and the judgment for costs.

      Hale & Bulkeley (Matthew Hale, of counsel), for app’lt; Franklin M. Danaher, for resp’t.
   Mayhan, P. J.

On the petition of the relator a writ of alternative mandamus was issued reciting that the defendant being mayor of the city of Albany, and having the power and duty in the premises, has unjustly refused, after due demand made upon him, to cause a certain obstruction in North Pearl street to be removed pursuant to § 10 of title 13 of chapter 298 of the Laws of 1883, as amended by chapter 398 of the Laws of 1888, and requiring the defendant, on the receipt of the writ, to send written directions to the city engineer of the city of Albany to send written notice to the owner, or person who erected, or who is now maintaining, the porch or building in question, within ten days, to remove said porch or building under and pursuant to the provisions of the acts above referred to, or show cause why the command of said writ ought not to be obeyed.

The defendant answered such alternative writ and admits that the Albany Female Academy, a domestic corporation, has erected and now maintains a building, porch or portico, which stands upon and projects thirteen feet easterly from the front of the building of the store adjoining thereto occupied by the relator, but as to whether such erection and maintenance by the said Albany Female Academy is unlawful and as to whether the said porch or portico projects thirteen feet beyond the range of the west side of North Pearl street as laid out, and whether the same is a public nuisance, or whether the same causes loss, inconvenience or damage to the relator in his business, the defendant denies any knowledge sufficient to form a belief.

The answer also alleges that the Female Academy has maintained this building and portico as described in the alternative writ of mandamus for more than forty years in its present condition and has as against the city of Albany acquired by prescription and long user a right to maintain such building and portico in its present location.

The defendant by his answer admits that he is mayor of the city of Albany, but denies that he has the power and duty of giving directions to the city engineer as stated in the alternative writ of mandamus. The issue joined by the alternative writ and answer was tried by the court, a jury having been waived by the parties, and the court ordered a peremptory writ of mandamus to issue and from the judgment and order the defendant appeals. The case discloses that before the trial the official term of Edward A. Maher as mayor of the city of Albany had expired by its own limitation, and his successor had been chosen and qualified, but had not by any order of court been substituted as defendant in this action. The appellant insists that the statute under which the relator prosecuted this action does not justify the court in granting a writ of mandamus against the mayor to compel him to give a written notice to the city engineer under § 10 of title 18 of chap. 398 of the Laws of 1888. That section is as follows. “ If any building now' erected or hereafter to be erected shall stand upon or project beyond the range of the street, the city engineer shall, upon receipt of written directions from the mayor, send written notice thereof to the owner, or person erecting or maintaining the same, who shall within ten days remove said building, etc.”

It is insisted that this statute imposes no absolute duty upon the mayor, and that it is a matter resting in the discretion of that officer whether or not he will require, by written direction from him, the engineer to give the written notice to the owner, or person erecting or maintaining an encroachment beyond the line of the street, and that there is no power in the court to compel the mayor to give such direction, or to set in motion the exercise of that discretion on the part of the mayor, and that the mandatory power of the court cannot be invoked to compel the performance of a discretionary act; and that proposition seems in the abstract, to be sound both upon principle and authority.

If the court can control the exercise of a purely discretionary pow'er vested in an executive or administrative officer, then such power would cease to be discretionary in the officer, and would vest in the court. The boundary line of discretion must be passed, and the domain of clear, legal official duty of such officer must be' reached, before the court can exercise its coercive power to compel a ministerial, executive or administrative officer to act.

In People ex rel. Demarest v. Fairchild, Att’y Gen., 67 N. Y., 336, the relator sought by mandamus to compel the Attorney General to bring an action in the nature of a quo warranta to test the title to an office. Allen, J., in delivering the opinion of the court, says: “ The control over the action, and the right to bring it, is with the Attorney General, and the court cannot sit in judgment upon the exercise of his discretion, or coerce his action.” So, also, in People ex rel. Hammond v. Leonard, Overseer, 74 N. Y., 443, Church, Ch. J., says: “While a mandamus is an appropriate remedy to enforce the performance of a ministerial duty, it is well settled that it will not be awarded to compel an act in respect to which the officer may exercise judgment or discretion.”

But the respondent, in answer to this contention of the appellant, insists that the duty of the mayor was not discretionary, but peremptory; a duty imposed upon him as the chief executive officer of the city by statute, and that by not giving the direction to the engineer referred to in § 10 of title 13 of chapter 398 of the Laws of 1888, above referred to, he failed in the performance of this statutory requirement and duty, and thereby subjected himself to the coercive mandate of this court.

The statute relied upon by the relator in support of this contention is § 9 of title 4 of chapter 298 of the Laws of 1883, which in part defines the powers and duties of the mayor of the city of Albany. In defining the powers and duties of the mayor, that section provides that, “ He shall be vigilant and active in causing ordinances of the city and laws of the state to be executed and enforced, and the affairs of the city to be well administered.”

This section also gives the mayor the right to exercise a sort of supervision over other and subordinate officers, and to suspend them for non- perform anee of official duties. Section 17, of the same title, provides that: “He shall perform all such duties as may be prescribed for him by the city ordinance and the laws of the state, and be responsible for the good and efficient government of the city.”

Section 14, of the same title, makes the common council commissioners of highways with power to prevent and remove encroachments upon the public streets, and by § 9 of title 3 of the same act, an ordinance of the common council passed in pursuance of the charter becomes binding in ten days after its passage without the signature of the mayor. On the 21st of January, 1889, the common council of the city of Albany referred to the law department of that body a resolution as follows: •

Resolved, That the mayor be, and he hereby is, requested to direct the city engineer to send a written notice to the trustees of the Albany Female Academy to remove the porch of the building owned by them, which projects beyond the range of North Pearl street, on the west side thereof, between Maiden lane and Steuben streets, and in case of their neglect or refusal to remove the same, to cause such removal to be made pursuant to § 10 of title 13 of chapter 298 of the Laws of 1883, as amended by chapter 398 of the Laws of 1888.”

The law committee of the board of common council reported favorably on such resolution and recommended its passage, and the 15th day of April, 1889, the common council duly adopted such resolution.

While it is true that § 10 of title 13 of chapter 298 of the Laws of 1883, as amended by chapter 398 of the Laws of 1888, does not in terms make the action of the mayor in giving the written direction to the city engineer to depend upon the action of the common council of the city, yet when the common council of the city under their authority as commissioners of highways, coupled with their legislative authority to pass a city ordinance, do give such direction which by the lapse of ten days is permitted to become an ordinance, it would seem to follow that the mayor, under the provisions of § 17 of title 4 of chapter 298 of the Laws' of 1883, which provides “ that he shall perform all such duties as may be prescribed for him by the city ordinance and laws of the state,” would be' bound to give such order to the engineer.

The ordinance having been adopted, it was no longer a discretionary power, to be exercised or not according to the volition of the mayor, but became a positive legal executive duty, which may be compelled by mandamus.

The appellant also insists that the peremptory writ should not have been granted, for the reason that at the time of granting the same the official term of Edward A. Maher as mayor had expired and his successor had assumed the duties of the office, and that the appellant as mayor was functus officio and powerless to obey the mandate of the writ. Unless this writ runs against the office of mayor and not the individual disconnected from the office, this objection is sound and fatal to these proceedings. Clearly a peremptory mandamus could not compel Edward A. Maher after the expiration of his official term as mayor to do an act that could by law be done only by the mayor, and direction from him to the engineer would be unofficial and wholly impotent to put the engineer in motion and compel him to serve the written notice on.the owner required by the statute. Mo order of this court could galvanize into life the official functions of mayor in the defendant, Maher; once out of office he is powerless to resume his official functions or perform official duties, and the court has no power to rehabilitate him in office or reinvest him with official power. This must be so upon principle and has been frequently so held upon authority.

In People ex rel. Gaige v. Reardon, 49 Hun, 425; 22 St. Rep., 629, the court held: “ The board of inspectors (of election) upon making and filing its certificate had fully discharged its official duty and therefore became functus officio as a board. A writ directed to them would be of no effect since they could not legally again convene as a body and undo an act done at a prior time and when in the proper discharge of official duty.”

In People ex rel. Bailey v. The Supervisors of Greene County, 12 Barb., 222, Harris, J., in discússing the power of the court to compel by mandamus the performance of an official act when the body or officer sought to be compelled to act is out of office, uses this language: “But when the board having performed the office for which it was constituted, whether legally or not, has been dissolved it is incapable of being reanimated. Any act it should attempt to perform, even though it be done in obedience to the mandate of this court, would be extra official and nugatory.” In People ex rel. Stevens v. Hayt, 66 N. Y., 607, the court of appeals in discussing the power of the court to grant a writ of mandamus and its effect upon the board or officer sought to be commanded, uses this language and adopts this rule: “ First, that to entitle a relator to the writ, he must show himself legally and equitably entitled to some right properly the subject of the writ, and that it is legally demandadle from the person to whom the writ was directed; also that such person still has it in his power to perform that duty.”

Further citations of authority upon this subject are unnecessary, and it remains for us to examine whether this writ can be held to have been directed to the the Mayor of Albany or to Edward A. Maher. If to the latter then, as we have seen, the writ cannot be upheld. If to the former, then change of the incumbency of the office would leave its mandate to operate on the incumbent as mayor, whoever he may be, and the writ so far as the question now under consideration can be upheld.

By § 1 of title 4 of chap. 298 of the Laws of 1883, the mayor is made the chief executive officer of the city of Albany, and §§ 6, 7 and 8 of that title provide for the succession of the executive functions, in case pf death, removal from office, or the expiration of the term of the incumbent of that office.

From these provisions it appears that official functions vested in the mayor are continuous, and do not terminate with the end of the official term of any incumbent.

If, therefore, this action can be held to have been prosecuted against the mayor a change in the incumbency of that office would not terminate the action, or the effect of the writ, but the same would continue to operate upon the office and the duties and obligations imposed by it would attach to the incoming incumbent and acting mayor.

In determining whether the writ operates upon the office through the incumbent, or only on the incumbent it is important to consider whether the duty enjoined would be incumbent on the successor in office. If it would, then it would seem that it is the performance of the official duty that is commanded to be performed without regard to the name of the incumbent, and in such case the writ may proceed against the office by name without the name of the incumbent appearing in the proceedings.

In the case of the People ex rel. Shaut v. Champion et al., Commissioners of Highways, 16 Johns., 61, Spencer, J., in delivering the opinion of the court, says: “ It is urged that non constat the commissioners to whom the alternative mandamus was directed are now in office; and that if they are not the peremptory mandamus will be unavailing. It is not necessary in the first instance to issue the writ to any persons by name; for this is not a proceeding against any individual until an attachment issues. The relator might omit the names and proceed against the commissioners of the town, whoever they may be, and if as commissioners they disobeyed our mandate they would incur 'personal responsibility.”

In the case of the People ex rel. Case v. Collins et al., Commis sioners of Highways, 19 Wend., 56, it was held that a mandamus to the defendants, commissioners of highways, to open and work a road, will be granted without regard to the near approach of the expiration of their offices. When the terms of office expire their successors must obey the command of the writ, and the court says: “ The obligation sought to be enforced devolves on no particular set of commissioners and no right is in question which will expire with the year. The duty is perpetual upon the present commissioners of Smyrna and their successors, and the peremptory writ may be directed to, and enforced upon the commissioners generally. To say otherwise would be to sacrifice the substance for the form.” These cases seem to have been approved and followed not only in this state, but in many of the sister states and in the federal courts.

In the People ex rel. Scott v. The Supervisors of Chenango County, 4 Seld., 317, it was held that when the supervisors neglected to perform the duty of levying ■ military tax required by statute, a mandamus would lie to compel them to reconvene and perform that duty, and Willard, J., in pronouncing the opinion of the court, uses this language: “ Their neglect to perform their duty at the time required cannot nullify the statute. They or their successors were bound to do what was required, and on failure to perform it may be compelled by mandamus.”

In Thompson v. The United States, 103 U. S., 480, the court says: But we cannot accede to the proposition that proceedings in mandamus abate by the expiration of office of the defendant, where, as in this case, there is a continuing duty irrespective of the incumbent and the proceeding is undertaken to enforce an obligation of the corporation or municipality to which the office is attached. The contrary has been held on very high authority,” citing 16 Johns., 61, and 19 Wend., 56, supra. But it is urged that in the cases above cited some public or municipal duty’ was involved and not one personal to the officer, and that in that particular those cases are distinguishable from the one at bar. In the leading cases to which reference has been made, the commissioners of highways refused to carry out an order made by commissioners on appeal directing them to cause the highway to be opened and worked. Without obedience to that order by the commissioners the alleged public improvement could not be completed.

In the case at bar the common council by an ordinance requested the mayor to direct the engineer to notify the owners t© remove the alleged encroaching portico. Without the giving of such notice, the commissioners or common council were under the law powerless to make the alleged public improvement, in removing this portico. Both are claimed to be public duties, which cannot be accomplished but by the active operation of the public officers charged with the performance of the alleged duty. The alleged duties in both cases were continuous, and could be performed by the then incumbents of the office, or by their successors in office.

Nor do I see how the present incumbent can be injured or damaged by these proceedings being continued against him as the present incumbent of the office into which he had been inducted as the successor of Mayor Maher, or how he can claim immunity from the operation of this writ, by reason of any assertion of want of notice or knowledge of these proceedings. The new incumbent of an office assumes the duties charged with knowledge of the official acts of his predecessor and must take up and complete the unfinished business of his predecessor, whether they be official financial obligations of the municipality or official] legal controversies in which it may be involved.

We are, therefore, inclined to the opinion that, under the authorities, the mayor of Albany may be regarded as before the court in these proceedings, and that the peremptory mandamus must be regarded as operating upon the office in the possession of the present incumbent. We have examined the various questions raised by the appellant upon the admission and rejection of evidence on the trial, and the exceptions taken by the defendant to findings and refusals to find by the learned court, ancj find no error for which this writ should be quashed or judgment reversed.

Order and writ of mandamus confirmed, but without costs to either party as against the other of this appeal.

Putnam, J., concurs; Herrick, J., not acting.


text:
    Elizabeth Kinmouth, Resp’t, v. William McDougall, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 2, 1892.)

    Animals—Injuries by—Contributory negligence.
    Plaintiff, a school teacher, while on the school house grounds, was attacked and injured by a ram belonging to defendant, whose premises adjoined the school house. The evidence was conflicting as to -whether-defendant had knowledge of the vicious character of the ram. It did not appear that plaintiff knew that the school children interfered with the ram or gave them permission to do so. Held, that the conduct of the children in vexing and exciting the ram could not be imputed to plaintiff, and that a judgment in her favor would not be disturbed.
    This is an appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      Young & Kellogg, for appl’t; J. M. Whitman (L. H. Northup of counsel), for resp’t.
   Mayham, P. J.

The plaintiff prosecuted this action to recover damages for an injury which she suffered by being butted or struck by a vicious ram, which she alleges the defendant suffered to run at large, knowing that it was accustomed to butt persons. The answer was a denial, and also that the plaintiff by her own negligence contributed to the injury of which she complains.

The trial disclosed that the plaintiff was a public school teacher, .and that the farm of the defendant adjoined the school house lot, between which and the school bouse there was no fence.

That the plaintiff while on her way to the school house, and on the school house grounds, was attacked by the defendant’s ram and knocked down and her arm was broken.

There was evidence that this ram had attacked the defendant and others to the defendant’s knowledge, And there was also evidence on the part of the defendant that it was not this but another ram of the defendant’s that was accustomed to do mischief similar to that complained of in this action, to the knowledge of the defendant, and that this ram was not, to the knowledge of the defendant, vicious. On these disputed questions the referee found with the theory of the plaintiff, and we think his finding sustained by the evidence.

The main contention of the appellant is that the plaintiff-was guilty of contributory negligence in not preventing the pupils who attended her school from vexing and exciting this ram, and that their wrongful acts in exciting and teasing this animal caused him to make the attack upon the plaintiff.

It does not appear that the plaintiff did anything to excite this animal, or that she knew that the school children interfered with him, or gave them any permission or authority to do so, and we have been cited to no authority holding a public school teacher responsible for the rude and mischievous acts of the pupils, during recess, without the knowledge or consent of the teacher.

It is probable that if-one of the scholars had been injured by this ram on the defendant’s premises, while in the act of worrying or vexing the animal, no action would lie for such injury. Such scholar would be deemed to have by his own wrongful and negligent act contributed to the injury. But in this case the conduct of the children cannot be imputed to the teacher, so as to make her a party or privy to the- wrongful acts of the children.

She was lawfully upon the school-house grounds, and so far as this case shows the ram was a trespasser there. If the defendant knew of the vicious propensities of the animal, he was bound at his peril to keep him under proper restraint. The rule is so well settled as to be elementary, that one who keeps a domestic animal which is accustomed to attack or injure mankind, with a knowledge of such vicious propensities, is liable to an action for damages at the suit of a party injured by such animal. Muller v. McKesson, 73 N. Y., 196; Loomis v. Terry, 17 Wend., 496; Qakes v. Spaulding, 40 Vt., 347.

It is true this rule might not obtain when the plaintiff was wrongfully on the premises of the defendant, where the animal was so kept and restrained by the owner that no injury would have come to the plaintiff but for his illegal act.

But that is not this case. Here the plaintiff was lawfully on her own premises, or where from her employment she had a right to be, and when the defendant’s ram was a trespasser.

In Marsh v. Hand, 120 N. Y., 315; 30 St. Rep., 1003, in a case in some respects like this, Bradley, J., says: At the time of the injury the buck sheep which made the attack on the plaintiff was trespassing upon his premises. This was prima fade sufficient to charge the owner with liability for the damages sustained by the plaintiff,” citing Van Leuven v. Lyke, 1 N. Y., 515. We have examined the exceptions taken by the defendant to the various rulings upon evideuce and findings and refusals to find by the referee, and see no error committed by him for which this judgment can be reversed.

Judgment affirmed, with costs.

Putnam: and Herrick, JJ., concur.


text:
    The People, Resp’ts, v. Joseph Davis, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 2, 1892.)

    1. Criminal law—Reasonable doubt.
    When there is evidence upon which the jury might or might not entertain rational doubt, it is not for the court on appeal to say that the jury should have doubted, and given the defendant the benefit of that doubt by his acquittal.
    2. Larceny—Proof of corpus delicti.
    Proof that the complainant went in a closet and hung up his vest with his watch in it; that defendant followed him in, and came out immediately after him, and left the saloon; that complainant shortly after put on the vest, and after going 2,000 feet discovered that the watch was gone, is sufficient to establish the corpus delicti on a trial for larceny.
    3. Same—Circumstantial evidence.
    It is not error for the court to charge that it is quite as safe to convict on circumstantial evidence in a proper case as on direct, positive proof, where he also adds that the circumstances must lead to the conclusion of guilt of the party, and in no other direction.

      4. Same—Former conviction.
    Nor is it error for the judge in his charge to refer to a former conviction of the defendant for some other crime.
    6. Criminal law—Re-sentence.
    A person convicted of crime may be re-sentenced so that the termination of his sentence may be at the season required by the Code, where the original sentence did not so provide, and his rights are not prejudiced because his counsel is absent at the time.
    Appeal from judgment of the Albany court of sessions, convicting defendant of the crime of grand larceny in the second degree.
    In the charge to the jury the court said: “ Circumstantial evidence cannot very well lie. It is quite as safe for a jury to convict on circumstantial evidence, when a proper case is given, as it is on direct, positive proof. The direct, positive proof may be false; the circumstances cannot be false. But you must remember one thing, gentlemen, before you can convict any person of a crime on circumstantial evidence the circumstances must lead to the conclusion of guilt of the party, and in no other direction. If they lead in any other direction, and that some other party may be guilty, then the case is not made out and then the jury have no right to convict.”
    The court also said in the charge: “This man is entitled to have the same rules of law applied to his case as any other man, no matter if he was the best citizen in the state, the only difference is that he is unfortunate in having been convicted and that conviction stands against him.”
    The conviction took place in February, and defendant was sentenced to four years in state prison. He was subsequently brought again into court, and, in the absence of his counsel, and without-assigning new counsel, sentenced to four years and three months in said prison, the court stating that it was done for the purpose of bringing its expiration within the statutory limits.

      P. D. Niver, for app’lt; James W. Eaton, district attorney, for resp’ts.
   Mayham, P. J.

The defendant was convicted of grand larceny,, second degree, in stealing a watch. The facts relied upon to prove the larceny and the guilt of the defendant are stated by the complainant in his testimony substantially as follows: Complainant was tending bar, and at the same time doing work as a carpenter in a. saloon of his brother-in-law in Cohoes.

Defendant came in, and asked for a drink, which was refused; complainant then walked into a closet, and hung-up his vest, the pocket of which contained his watch; defendant followed complainant into the closet but came out immediately after complainant, and soon left, the saloon. About twenty minutes after placing his vest in the. closet the complainant went and got it and started for home, not noticing whether or not the watch was in the pocket, and after traveling about 2,000 feet he missed the watch. No further affirmative proof was offered by the People. The defendant was sworn in his own behalf and denied taking or knowing anything about the watch.

At the conclusion of the evidence on the part of the People and also at the conclusion of all the evidence the counsel for the defendant asked the court to discharge the prisoner on the ground that the evidence was insufficient to warrant the submission of the same to the jury. The court denied the motion and the defendant’s counsel duly excepted. And the judge thereupon charged the jury. To some portions of the charge the counsel for defendant excepted. The jury rendered a verdict of guilty. The counsel for defendant thereupon moved for a new trial pursuant to § 465 of the Code of Criminal Procedure on the-ground:

First: That the substantial rights of the defendant had been prejudiced.
Second : That the court misdirected the jury in matters of law.
Third: That the court refused to instruct the jury as prescribed by § 420 of the Code of Criminal Procedure. The court thereupon rendered judgment of conviction and sentenced the prisoner to the state prison for four years and three months,"from which conviction and sentence the defendant appeals. The counsel for the appellant now insists that the evidence is too slight to justify a conviction and that if the jury had fairly applied to this case the rule of law that gives to a prisoner accused of crime the benefit of every reasonable doubt, they would have acquitted the defendant.

That question, however, is always one for the jury under proper instructions from the court; and the jury were we think fully and fairly instructed upon that point by the learned trial judge. And ■when there is evidence upon which the jury might or might not entertain rational doubt, it is not for the court on appeal to say the jury should have doubted and given the defendant the benefit of that doubt by his acquital. Such a determination on appeal would transfer from the jury to the court the domain of doubt, and render any instruction upon that subject by the court to the jury useless.

Again, it is urged that the evidence fails to establish the corpus delicti. We think not. The proof shows that the complainant owned and had in his possession a watch. That watch was, without the knowledge or consent of the complainant, taken out of his possession and carried away or concealed by some active agency. It could not have gotten away from him without assistance. Such taking or removal from the possession of the owner, without his knowledge or consent, followed by concealment, was evidence of larceny. It proved that a crime had been committed, and thus established the corpus delicti. True, that alone did not prove who committed the crime; only that the crime had been committed. Who committed it ? The People relied upon the circumstances that the defendant was in a position to have committed it, and that no other person was in a situation to have done so. That reliance was wholly upon circumstantial evidence; and upon that kind of evidence the trial court made the remark to which the learned counsel for the defendant took an exception, which he argues here as a ground of reversal of this conviction.

We think the trial judge laid down the proper rule upon that subject, and that he did not overestimate the force and effect of that kind of evidence; qualified as his remarks were in his charge upon that subject. It is true that circumstances do sometimes mislead and point to an erroneous conclusion, but they sometimes point with unerring certainty to the truth. And we do not think that the rule was erroneously stated by the trial judge. Mor do we think the judge’s reference to the former conviction of the prisoner for some other crime error. Doubtless the jury in construing the circumstances and weighing the credibility of the defendant as a witness take that into the account.

It is also urged that the re-sentence of the prisoner was erroneous. This was done so that the termination of the period of imprisonment might be at the season required by § 697 of the Penal Code. It was a proper exercise of authority, and we think the absence of the prisoner’s counsel worked no wrong.

He was not deprived of counsel, nor were his rights in any way prejudiced or jeopardised by the absence of counsel at that stage of the proceeding. It was not a violation of § 8 of the Code of Criminal Procedure. People v. Trimble, 38 St. Rep., 997.

The conviction must be affirmed.

Putnam and Herrick, JJ., concur.


text:
    John De Witt Peltz et al., Adm’rs, Resp’ts, v. John A. Schultes et al., Ex’rs, App’lts.

      (Supreme Court, General Term, Third Department,

      Filed July 2, 1892.)

    Executors and administrators—Accounting—Limitation.
    One W. died in 1871, leaving a will, by which he gave all his property, except certain specific legacies, to his wife, who was named as executrix, for life, and directed its distribution among the legatees one year after her death. The wife died in 1889, and defendants are her executors, and plaintiffs-were appointed administrators of W.’s estate. JHeld, that defendants could be required to account for any property which came into their hands which belonged to W.’s estate; that the proceeding was not barred by the statute of limitations, as no right to a distribution or a final accounting could arise until the death of the wife.
    Appeal from order of the surrogate of Albany county requiring defendants to account as executors of a deceased executrix.

      John D. White (Eugene Burlingame, of counsel), for app’lts; William McElroy (William L. Learned, oí counsel), for resp’ts.
   Herrick, J.

This is an appeal by the defendants from an. order of the surrogate of Albany county requiring them as executors of Mary Watson, deceased, to account for the property that came into her hands as executrix of Isaac H Watson, deceased. Sometime in the year 1871 Isaac H. Watson, then a resident of Albany county, died, leaving a last will and testament, which was admitted to probate by the surrogate of Albany county on the 6th day of June, 1871. On the same day letters testamentary were issued to John J. Canaday as executor and Mary Watson as executrix, they being so designated in the will; both duly qualified, and thereafter filed an inventory of the estate.

On or about October 26, 1875, the said John J. Canaday died intestata

On or about September 25, 1889, Mary Watson died, leaving a last will and testament, wherein the defendants were named as executors, and which will was admitted to probate by the surrogate of Albany county January 9, 1890, and on the same day the defendants duly qualified as executors, and thereafter, and on March 10, 1890, duly filed their inventory of the personal effects of the estate of Mary Watson.

No judicial settlement of the estate of Isaac H. Watson has ever been had by the executors thereof or either of them.

With the exception of some specific legacies to other parties, Isaac H. Watson bequeathed all his property both real and personal to his wife, Mary Watson, during her life; he further provided for the distribution of his property among various legatees one year after the death of his wife.

On the 24th day of November, 1891, letters of administration with the will annexed of the estate of said Isaac H. Watson were issued by the surrogate of Albany county to the respondents, who duly qualified as such administrators.

None of the beneficiaries under thé will of Isaac H. Watson ever attempted to bring the executors of his will, or either of them, to an account,

The respondents as such administrators of the will of Isaac H. Watson applied to the surrogate of Albany county to have the defendants as executors of the will of Mary Watson render an account of any property that had come into their hands as such executors that, belonged, to the estate of Isaac H. Watson.

The defendants resisted such application,' alleging that more than seven years had elapsed prior to the death of Mary Watson and after the issuing to her of letters testamentary ; also that none of the beneficiaries under the will, although not incapacitated so to do, had taken any steps to compel an accounting within six years from the time sucji right accrued.

I think the decree of the surrogate should be affirmed. The right to compel the executor of an executor to account upon the application of the successor of the original executor is provided for by § 2606 of the Code of Civil Procedure.

The right to demand an accounting of the defendants did not accrue until their appointment The property that is being sought, and for which they are asked to account, was not to be distributed until the death of their testator, Mary Watson; until that time the legatees had no right to demand the same, and the statute would not run against them.

They could not sue for their legacies and could not have an accounting, Matter of Hodgman, 31 St. Rep., 479. The right to a distribution and to a final accounting of the estate of Isaac H. Watson could not arise until the death of Mary Watson ; the defendants have no right to the remainder of that estate in the possession of their testatrix at the time of her death. If instead of dying September 15, 1889, Mary Watson had so conducted herself that the letters granted to her had been revoked on that day, she could have been made to account for the property in her hands as executrix and turn the same over to her successor. The defendants occupy her position and must account in the same manner. Matter of Clark, 119 N. Y., 427; 29 St. Rep., 682; Matter of Wiley, 119 N. Y., 642; 29 St. Rep., 787.

The decree of the surrogate should be affirmed, with costs and printing disbursements to be paid by the defendants personally.

Mayham, P. J., and Putnam, J., concur.