text:
    In the Matter of the Estate of Catherine L. Wolfe, Deceased.

      (Court of Appeals,

      Filed February 10, 1893.)

    1. Collateral inheritance tax.
    Under the provisions of chapter 4P8 of the Laws of 1885 the surrogate is the assessing and taxing officer, and as such the representative of the state for purposes relating to the appraisement and taxation of property, and may proceed with the assessment of the tax, under § 13 of the act, without any notice to state officials.
    2. Same—Notice to comptroller.
    Nothing in the law or in the relations of the comptroller makes a notice to him a prerequisite to a complete determination by the surrogate of the quest:ons presented in the proceedings, and a prior determination as to the liability of property to taxation is conclusive upon the comptroller and district attorney.
    Appeal from judgment of the supreme court, general term, first department, affirming decree of surrogate.

      S. P. Nash, for Rector, etc., Grace Church, app’lt;

      Joseph H. Choate, for Metropolitan Museum of Art, app’lt;

      Benjamin F. Dos Passos, for resp’t.

       Reversing 50 St. Rep., 115.

   Gray, J.

Catherine L. Wolfe died in the month of _April, 1887, leaving a last will, by which, among other dispositions of her estate, she bequeathed a legacy of $350,000 to the rector, etc., of Grace Church, in New York city, in trust for the benefit of that church, and another legacy to the Metropolitan Museum of Art, in said city, of her collection of paintings, of the appraised value of $148,025, and of the sum of $200,000 in money for the preservation and increase of that collection. In June, 1887, her executors applied to the surrogate of New York county for the appointment of an appraiser, under the provisions of chapter 483 of the Laws of 1885, known as the collateral inheritance tax act, in order to ascertain the amount of the tax upon the various legacies. Such an appointment was made, and, upon the coming in of his report appraising the value of the decedent’s property, the surrogate made an order confirming the report and assessing the tax upon various legaciesbut he reserved the question of the liability to taxation of property of the estate disposed of in certain clauses, which included these bequests, for further consideration and fixed a future day named for hearing thereupon. Copies of the appraiser’s report and of the surrogate’s order were thereafter served upon the comptroller of the city.

Upon the return day fixed by the order for the hearing upon the question reserved, neither the comptroller nor the district attorney appeared, and thereafter, and on October the 29th, 1887, the surrogate made a'decree reciting the proceedings had, etc., and adjudging, among other things, that the legacies in question here were exempt from taxation under the act. On May the 31st, 1888, the executors, relying upon said decree, paid over the legacies in full to the respective legatees. On October the 15th, 1890, and possibly, if not probably, moved thereto by our decisions in Catlin's case, 113 N. Y., 134; 22 St. Rep., 189, and in Sherrill's case, 121 N. Y., 701; 31 St. Rep., 896, the district attorney of New York, by direction of the comptroller, filed his petition and instituted the present proceeding for the assessment and collection of a tax under the act. The legatees and appellants here pleaded the previous decision and decree of the surrogate as an adjudication of the matter and their payment of the legacies under the decree, which had remained unappealed from and was in full force, and further set up the non-liability of the legacies to taxation. The surrogate held the proceedings valid, and decided that a tax was due and should be paid. His decision was affirmed at the general term ; where it was held that the legacies were not exempt and, with respect to the prior adjudication, the present decree was upheld on the ground that in the prior proceeding the surrogate had no authority to determine the question that a party is not liable to taxation; except in a proceeding initiated by the district attorney. The theory of the determination, upon the latter point, in the surrogate’s court had been that, under the act, the comptroller of the city was a necessary party to the proceedings, and for the lack of notice to. him, upon the previous proceeding, the comptroller was not bound 'by the decision then made. The general term, in their opinion, however, do not agree in that construction of the act, and hold that it is entirely discretionary with the surrogate as to what notice shall be given and to whom. In sustaining the decree they proceed, as to this point, upon the proposition that, until such a proceeding is instituted as is provided for under §§ 16 and 17, the act has not provided any way by which the-issue of an exemption from taxation can be presented.

As I read the provisions of this act, I think we must differ with the conclusions below and that the proper construction of this act. makes of the surrogate the assessing and taxing officer, and, as such, the representative of the state for purposes relating to theappraisement and taxation of property. I think it is very clear that the legislature has provided, as the general term opinion in fact concedes, that the surrogate should proceed with the assessment of the tax without notice to any state official. The difficulty encountered by the learned justices below is in their failure to give full effect to the provisions of § 13 of the act Section 13,. so far as it is material, reads as follows, viz.: “ In order to fix the-value of property of persons whose estate shall be subject to the payment of said tax, the surrogate * * * shall appoint some competent person as appraiser, whose duty it shall be forthwith to give notice to all persons known to have, or to claim, an interest in such property, and to such persons as the surrogate may by order direct, etc., to appraise the same at its fair market value and make a report thereof in writing to said surrogate * * * and from this report the said surrogate shall forthwith assess and fix the then cash valve of all estates * * * and the tax to which the same is liable, etc." By § 15 it is provided that “ the surrogate's court * * * shall have jurisdiction to hear and determine all questions in relation to the tax, etc.” When we read all of the provisions of this act, it is perfectly apparent that an especial system of taxation was created for the benefit of the state, with all the necessary machinery for its working; the control with respect to which was vested in the surrogate’s court, with a jurisdiction exclusive in its nature. In the assessment of a tax upon property passing by will, or by the intestate law, the responsibility is imposed by the law upon the surrogate. He acts for the state, and he is commanded to assess and fix the tax to which the property is liable. To comply with the command in § 13 of the act, in that respect, he must, necessarily, determine the question of liability to taxation, inasmuch as if no such liability exists be is without jurisdiction in the matter. When the machinery of this system of taxation is set in motion, under § 13 of the act, whether upon the-application of interested parties, or upon his own motion, the surrogate by force of its provisions is at once invested with the office and the functions of an assessor for the state, whose duty it is to-assess for its use a tax ; and in whom, not only by virtue of the. office, but by the further provisions of § 15, inheres the authority, -and upon whom rests the obligation, to determine the question of whether the property of the decedent, which passes to others, is subject or .liable to taxation by the state. He must decide whether the property is taxable, for that fact lies at the foundation of his jurisdiction, and is of the essence of his right to proceed with the assessment. Mot all the property of decedents may be subject to the tax imposed by the first section, and what property shall be assessed for taxation is left, by the thirteenth section, for the surrogate to determine. To quote again the language, he “shall assess and fix the cash values of all the estates, etc., and the tax to which the same is liable,” and his authority to assess involves the necessity, as well as the power, to determine the question of liability; as much as it does in the case of assessors of taxes in the general scheme of taxation.

I can see no diEerence between the principle upon which the surrogate acts in proceeding to assess property for taxation under the act, and that upon which, in the general system of taxation in the state, tax assessors act in the assessment of persons or property for purposes of taxation. It is well settled as to them, that in their proceedings they must determine the question of liability to taxation as a fact which gives them jurisdiction to assess. It is not only an important, but it is a conditional step in the proceeding for the assessment

That the doctrine of notice has any application in such proceedings to the case of the comptroller, is a proposition which has neither support in some requirement of the act, nor is justified by his relation to the subject-matter. He is not a person who has any interest in the property. He is an utter stranger to it. Contingently upon the refusal or neglect to pay a tax due under the act, it may become his duty to notify the district attorney to proceed to enforce collection. The performance of that duty, however, involves the idea of a failure of the surrogate to act at all, or of a neglect or refusal to obey the decree of the surrogate’s court. It doubtless is very proper that the surrogate should cause the comptroller to be notified of the proceedings for appraisement and assessment, in order that a question which concerns the interests of the state may be tried out in the fullest possible manner; but nothing in the law or in the relations of the comptroller makes notice to him a prerequisite to a complete determination by the surrogate of the questions presented in the proceedings. The doctrine of notice is one which, finds application when it is sought to tax the property of the citizen. When he is to be assessed it is essential that he shall be given an opportunity to be heard to establish a demand against him. As matter of fact, in this proceeding, it appears that the comptroller was caused to be notified by the surrogate before he passed upon the question of the liability <of these legacies to taxation ; so that he had his opportunity to appear and be heard, if he had chosen to avail himself of it. I can see no more force in the argument as to an implied requirement of notice to him, than if the argument was made, in the case of the assessment and taxation of property under the general system of taxation in the state, that some state oificial should have notice and the opportunity to be heard.

Section 17, to which the general term opinion refers as pointing out the sole method for obtaining a determination of the question of exemption, has relation to the enforcement and collection of the tax. Its plain reading is that whenever the comptroller has reason to believe that any tax is due and unpaid, after the refusal or neglect of the person interested in the property liable to said tax to pay the same, he shall notify the district attorney, and that official is to prosecute the proceedings for the enforcement and collection of such tax.” The section has reference only to a case where a tax is due and has not been paid. The tax may be due because the surrogate had so determined under § 13; or, where no proceedings have been had for appraisement, etc., the comptroller and district attorney may believe a tax to be due, and in either case the machinery may be set in motion to collect it through the provisions of §§ 16 and 17. There is nothing in §§16 and 17, as I read them, which provides for the determination of the question of a liability to taxation exclusively through their authority. Of course, in such a proceeding the question could be determined because of the general power to do so which is conferred upon the surrogate. Being vested with the duty and the authority to assess and fix the tax to which property is liable, under § 13, which carries the power to determine the question of liability, a prior determination of that question is conclusive upon the comptroller and district attorney, and leaves no scope for the operation of §§ 16 and 17, except in the case of a refusal or a neglect to pay the tax which is due. In the present case, the surrogate’s decree of October, 1887, was an adjudication upon the liability of these legacies to taxation which was final, and was a complete bar to the maintenance of any subsequent proceeding by the district attorney to collect a tax.

The conclusion reached makes it unnecessary to consider the other question, of an exemption under the act of 1892, which amended the act in question.

The order of the general term and the decree of the surrogate should be reversed, and the application of the district attorney should be denied, with costs in all the courts to the appellants.

All concur, Maynard, J., in result.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    Mary A. Wardlaw, Adm'rx, Resp't, v. The Mayor, etc., of the City of New York, App'lt.

      (Court of Appeals,

      Filed February 10, 1893.)

    Municipal corporations—Suspension of officer.
    The commissioner of public works addressed a communication in writing to plaintiff’s intestate, as follows: “Notice of suspension as assistant engineer in the department of public works is hereby served on you, the same to take effect on and after July 81, 1886.” On January 30,_ 1890, he addressed another communication as follows: “Sir: Understanding from the counsel to the corporation that you claim to be still in the employ of • the department as an assistant engineer, and without admitting the fact to be so, I desire to set at rest all doubt on that point by discharging you from and after this date, which I hereby do.” In the meantime intestate had accepted other employment from the commissioner. Held, that it was a question of fact which should have been submitted to the jury, to determine upon the letters of the commissioner, the conduct of the parties, and all the facts and circumstances of the case, whether the so-called letter of suspension. was not intended as a termination of the relations, etc., and whether the subsequent conduct and action of the intestate did not amount to an abandonment of the office if there was not a technical discharge.
    Appeal from judgment of the New York superior court, general term, affirming judgment in favor of plaintiff entered on verdict directed by the court.

      J). J. Dean, for'app’lt;

      L. Laflin Kellogg, for resp’t.

       Reversing 46 St. Rep., 861.

   O’Brien, J.

The plaintiff’s intestate was, on the first day of June, 1885, appointed assistant engineer in the department of public works of the city of New York. The salary of the place was fixed at $1,500 per year, which, on January 1, 1886, was increased to $1,800. He was paid the stipulated salary up to July 23, 1886, when the commissioner of public works addressed to him a communication in writing as follows: “ Notice of suspension as assistant engineer in the department of public works is hereby served on you, the same to take effect on and after July 31, 1886.” The recovery in this case was for the salary subsequent to this date, and to January 30, 1890, on which last-named date the commissioner addressed to him another communication in writing as follows:

“Sir: Understanding from the counsel to the corporation that you claim to be still in the employ of the department as an assistant engineer, and, without admitting the fact to be so, I desire to set at rest all doubt on that point by discharging you from and after this date, which I hereby do.”

The original plaintiff died while the action was pending and the present plaintiff, his widow and administratrix, was substituted. The commissioner had power to discharge assistant engineers in the department at pleasure, and the plaintiff’s contention is that this conceded power was not exercised as to her intestate until he received the last communication. It does not follow that because the commissioner in his first letter used the term ■“ suspended ” instead of “ discharged ” that he did not intend to terminate the employment as assistant engineer and to create a vacancy in the office, if it be one, nor does it follow that Wardlaw did not understand from this communication that his services-were no longer required as an assistant engineer. The commissioner had the power to dismiss or discharge, and no partícula: form of words was necessary in order to accomplish that result If he intended to and did communicate to the employee the fact that his services in that capacity were no longer required, and this was so understood by both parties, then a discharge was -effected as completely as if the word had been used. The plaintiff admits that the letter of January 30, 1890, operated t,o discharge her intestate, and no claim is made for salary after that date. But the commissioner had the same power to discharge on the 23d -of July, 1886, and there is every reason to believe from the facts and circumstances of the case that he intended to exercise it in the one case as much as in the other. He used the word suspended in the first letter, and after being informed that there was a claim made that a dismissal was not thereby accomplished, he used the word discharged in the second. If, however, Wardlaw understood from the first letter that his services were no longer required as an assistant engineer, and that compensation was no longer to be paid to him in that capacity, and that such was the purpose of this notice from the commissioner, and both parties acted accordingly, then the first notice operated to terminate the employment, though it was called a suspension instead of a dismissal.

It appears from the record that between July 31, 1886, and January 30, 1890, the period during which it is claimed that the plaintiff’s intestate was holding the office of assistant engineer and entitled to the salary attached to it, though actually performing no duty of that office, he was in the service of the city, under the direction of the commissioner of public works, in another capacity. He was performing the duties of a surveyor in laying out, regulating and grading streets, and possibly in other respects when his services were required. It is stated by the learned counsel for the defendant that he received during the period when it is claimed he was suspended a sum of money considerably in excess of what he would have been entitled to during the same time at the salary of an assistant engineer. This is denied by the learned counsel for the plaintiff, who insists that a large part of the money paid to his client for this work was used to defray the expense of performing it, and that the net sum received was comparatively small. There is proof in the case that after the letter of July 23, 1886, Wardlaw was employed as a surveyor in the capacity above mentioned by the commissioner, that he accepted such employment and was paid a large sum of money therefor. Whether more or less than he would have received as assistant engineer, it is, perhaps, impossible, upon the record, to say, as the expenses, if any, were not shown or deducted from the gross receipts in order to show the net income from such employment. That question was not tried. One of the defenses contained in the answer is that Wardlaw was in fact discharged on the 31st of July, 1886, and that he acquiesced in such discharge and accepted other and different employment from the defendant. At the close of the case the defendant’s counsel asked to go to the jury upon the question whether the acceptance of such enployment from the city, though in another capacity, and the receipt of the compensation therefor during the period for which salary was claimed, was not an abandonment of the office of assistant engineer and a relinquishment of the salary thereof for the other employment The court refused this request and defendant’s counsel excepted. The first letter may not, in a technical sense, have been a good or sufficient discharge. Had the parties understood it as merely a suspension, with the right of the incumbent to draw the salary during the suspended period, and had Wardlaw stood upon this ground, then this claim would be much stronger than it appears to be. But if the commissioner furnished him other employment and he accepted it in lieu of the place of assistant engineer, that would amount to an abandonment of the latter place and a relinquishment of the right to the salary. Whatever may have been the effect of the first letter standing alone and construing it entirely from the language used, yet if the parties treated it as a discharge and entered into new relations and voluntarily terminated or abandoned those formerly existing, the plaintiff must be deemed to-have waived his right to insist upon payment of the salary of assistant engineer and to have vacated the office. It was competent for all the parties to treat the first letter as a discharge, and it is inferable from the subsequent letter of the commissioner that he considered it as such. If the plaintiff, without objection or protest, accepted other employment from the commissioner and was paid therefor, this conduct on his part might justify the inference that he construed it in the same way or elected to abandon the place for some other position or employment. We have not overlooked the admission that appears in the case that Wardlaw, after what is called the letter of suspension, offered his services to the defendant and notified the proper officer that he was ready to go to work. That circumstance is doubtless entitled to proper consideration, but is not conclusive as to the fact of discharge or abandonment. The question still remains whether, at the time he ceased to perform duty as assistant engineer and accepted the other employment, there was any intention on his part to insist upon performing the duties of that office and drawing the salary, upon the ground that the first letter amounted to a mere suspension and not a discharge, and whether that intention was communicated in any way to the commissioner. It may be assumed that had the .commissioner supposed that was to be his attitude he would not put him in a position to draw other moneys from the city for services, and would have promptly removed all doubt as to his discharge by doing then what he did nearly four years later. It was, therefore, we think, a question of fact for the jury to determine upon the letters of the commissioner, the conduct of the parties, and all the facts and circumstances of the case, whether the so-called letter of suspension was not in fact intended as a termination of the relations of Wardlaw with the department as assistant engineer, and was not so understood by him, and whether his subsequent conduct and action did not amount to an abandonment of the office, if there was not a technical discharge.

It was not competent for the court to determine, as matter of law, from the facts and circumstances appearing in the record, that Wardlaw’s position as assistant engineer and his legal right to the salary was unaffected by the letter and his subsequent relations with the defendant, and it was error to refuse to allow the jury to pass upon the question. An officer suspended from the performance of the duties of his office by the appointing power, but not removed, is entitled to the salary of the office during the period of the suspension. Fitzsimmons v. City of Brooklyn, 102 N. Y., 536; 2 St. Rep., 475; Emmitt v. Mayor, 128 N. Y., 117; 38 St. Rep., 907; Gregory v. Mayor, 113 N. Y., 416; 22 St. Rep., 703; Lethbridge v. Mayor, 133 N. Y., 232; 44 St. Rep., 669.

But the suspended officer may waive that right by express agreement or by conduct from which such an agreement or intention on his part may be fairly and reasonably inferred. When he accepts other employment from the appointing or removing power at larger compensation, the inference that there was an intention on his part to abandon the first position would seem to be strong, but even though the compensation in the new position be less, it might still be a question of fact whether he intended to abandon a position from which he could at any time be removed for another that promised more permanent employment, or at least was quite as certain in its tenure or duration. The defendant was deprived by the ruling of the learned trial judge of the right of submitting the facts and circumstances in the case bearing' upon this point for the opinion of the jury. They might also be considered upon the issue as to whether Wardlaw had been in fact discharged on the last of July, 1886. The letter of July twenty-third was not so conclusive in its legal effect or meaning as to exclude the conduct of the parties at the time and subsequently from tire consideration of the jury. If Wardlaw’s subsequent conduct and relations with the city or its officers were such as to justify fairly the conclusion that he had accepted the new employment in place of the old, it might serve to interpret the letter in an inquiry as to whether it was intended and understood on both sides as a dismissal.

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

All concur.


author: Yan Brunt, P. J.

text:
    William H. Haskell, App'lt, v. John A. Queen et al., Resp'ts.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    Partition—Possession necessary to maintain.
    Possession, either actual or constructive, is a necessary element to the maintenance of an action of partition. It cannot be maintained where the plaintiff has had no possession, but the defendants hold the premises in hostility to his title, collect the rents and are in possession by their tenants.
    Appeal from judgment dismissing the complaint upon the merits.

      B. L. Harrison, for app’lt;

      P. A. Hendrick, for resp’t
    Curtis; P. Condon, for resp’t Queen.
   Yan Brunt, P. J.

This action was brought for the partition of certain real estate, consisting of a lot of land, with the buildings thereon, situate at the corner of Leonard and Centre streets, in the city of Hew York, known as the “Clipper Building.’’ The complaint alleges that the plaintiff and certain of the defendants are seized in fee, and in possession as tenants in common, of certain real property in the city of Hew York ; and then alleges the plaintiff’s title to be by a sheriff’s sale of the interest of one John B. Armstrong in the premises in question, and a conveyance executed by the sheriff on or about the 15th of February, 1888. The defendants denied the title and possession of the plaintiff; and the court having dismissed the complaint, from the judgment thereupon entered this appeal is taken.

Without considering the various other questions which have been raised upon this appeal, it is sufficient to call attention to the fact that there is no evidence whatever of possession, either actual or constructive, of any portion of the premises in question in the plaintiff, prior to the commencement of the action. From 1884, down to the time of the trial, rents were collected by the agent of the defendants, who claimed to be the owners thereof, and no portion of said rents was ever paid to the plaintiff, nor was his claim of title known. It is a familiar principle that an action for partition cannot be made the substitute for an action of ejectment, or for an action to establish the title of adverse claimants to real property. Hence a necessary element in order that the plaintiff might proceed in this action was absent, viz.: actual or constructive possession. The premises were held by others in hostility to the plaintiff’s title, who collected the rents, were in occupation of the premises by their tenants, and recognized in no manner the interest claimed by the plaintiff.

We think the judgment should be affirmed, with costs.

Barrett, J., concurs.


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

text:
    The Pittsfield National Bank, Resp't, v. William H. Tailer, Impl'd, App'lt.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    1. Contempt—Judgment directing payment of money—Service.
    The judgment herein adjudged an assignment for creditors void, and. directed the assignee to pay plaintiff the amount of its judgment, and in case he did not do so within ten days after service upon him of a certified copy of the decree, that he pay to a receiver all the property and assets in his hands. Held, that the assignee could not be in contempt for failure to comply therewith until the expiration of ten days after personal service upon him of a certified copy of the judgment.

      (Pitt v. Davison, 37 N. Y., 242, distinguished.)
    2. Same—Appeal.
    An appeal from that portion of the judgment directing payment to plaintiff operates as a stay of proceedings, and pending such appeal the assignee cannot be compelled to comply with the subsequent provision, as it was but an aid to the enforcement of the direction to pay the specific sum to plaintiff.
    Appeal from order directing appellant to deliver certain property to the receiver, and adjudging him guilty of contempt of court, in an action to set aside an assignment for the benefit of creditors.

      Burnett & Whitney (Edward B. Whitney, of counsel), for app’lt;

      John J. Adams, for pl’ff-resp’t;

      Franklin Bien, for receiver resp’t.
   Barrett, J.

Two objections are made to the order appealed from. The first is that a certified copy of the judgment was not served upon Mr. Tailer; the second, that the undertaking, which was given upon appeal to the court of appeals, stayed proceedings upon that part of the judgment which directed Mr. Tailer to pay, out of the property of his assignors in his hands, a specified sum of money. The judgment here is somewhat unusual. It first adjudges the general assignment made by the firm of Ross, Campbell & Co. to be fraudulent and void, and then directs the assignee (Tailer) to pay to the plaintiff, out of the property and assets of the firm in his hands, the amount of the plaintiff’s judgment, with .interest and costs. This part of the judgment is unconditional and final, and is complete in itself. But a further provision follows, namely, that in case Tailer “does not make such payment within ten days after the service upon him of a certified copy of this decree,” then he shall pay over to a receiver all the property and assets of the firm of Ross, Campbell & Co. in his hands; that he account therefor to such receiver; and that the receiver thereupon sell said property, and out of the proceeds of sale pay to the plaintiff the amount of his judgment, interest and costs. Upon this state of facts, it was a complete answer to the plaintiff’s motion that the judgment had not been personally served upon Mr. Tailer.

He could not be in contempt until the expiration of ton days after service upon him of a certified copy of the judgment. Such was the tenor of the judgment itself. But, even if no provision in that respect had been made therein, it could only be enforced by punishment for contempt in case Mr. Tailer refused to obey its commands after service upon him “ of a certified copy thereof.” Code Civ. Pro., § 1241. Service upon a party’s attorney is not sufficient to bring him into contempt. The well known case of Pitt v. Davison, 37 N. Y., 242, is cited in support of the opposite doctrine, but that case merely holds that the papers upon a motion to punish for a civil contempt may, when so directed by the court, be served upon the attorney for the party who is proceeded against, the motion being a proceeding in the action. There is a clear distinction between the act which constitutes the contempt and the proceeding to punish therefor. The attorney cannot bring about his client’s guilt, although the remedy, when the offense has been committed, may, by judicial direction, be enforced in the ordinary way. The contempt itself, however, can only be predicated of the client’s own act; that is, of his refusal or neglect to obey the judgment after personal service of a certified copy thereof upon him, as required by law.

The fact that a party is aware of the judgment, that he has appealed from it, that he has recognized its existence in other ways, is entirely immaterial. A party may, doubtless, be punished for violating an order or' judgment of which he has notice, but he cannot be punished for failure ^to do something which he is commanded to do, except in the manner and upon the condition specified in the statute.

The second objection is equally fatal. The undertaking given by the appellant stayed proceedings upon that part of the judgment which directed the payment of money. It is well settled that the judgment in this respect could have been enforced by execution, none the less because the defendant is required to pay the amount out of the property and assets in his hands. Randall v. Dusenbury, 51 How. Pr., 367; aff’d 41 N. Y. Supr. Ct., 456; In re Hess, 48 Hun, 586; 16 St. Rep., 255; Fassett v. Tallmadge, 14 Abb. Pr., 188. And see Myers v. Becker, 95 N. Y., 486, where Randall v. Dusenbury is cited; and Ross v. Butler, 57 Hun, 110; 32 St. Rep., 212. The money judgment is here the foundation of what follows. It is, in effect, the substantial judgment in the action, and the direction, in case of nonpayment, to turn over the property to a receiver, is but an aid to the enforcement of such money judgment. So long, then, as the enforcement of the judgment directing payment of a specific sum of money is stayed, a compliance with the subsequent provision in aid of such judgment cannot well be exacted; otherwise, "the plaintiff would be permitted to go on and collect, through the receiver, the very judgment as to which he is stayed.

The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, payable by the plaintiff, but not by the receiver; and the motion to punish for contempt denied, with ten dollars costs.

Van Brunt, P. J.

ithout in any way conceding the power of the court to enforce obedience to the money judgment by proceedings for contempt, I concur.

O’Brien, J., concurs.


author: Barrett, J.

text:
    The Dueber Watch Case Manufacturing Co., Resp't, v. The Keystone Watch Case Co. et al., App'lts.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    Bill of particulars—Affidavit.
    An affidavit made by defendant’s attorney is insufficient to authorize the granting of an order for a bill of particulars, although the defendant is a foreign corporation, whose officers all reside out of the state, and the attorney has charge of the case.
    Appeal from order denying defendant’s motion for a bill of particulars.

      George Carlton' Comstock (Leonard S. Wheeler, of counsel), for app’lts;

      Wilber & Oldham, for resp’t.
   Barrett, J.

The application for a bill of particulars of the plaintiff’s claim was granted in part and denied in part. The defendant, the Keystone Watch-Case Company, appeals upon the ground that the motion should have been granted in its entirety. We think, however, that the motion should have been denied in its entirety, for the reason that it was not founded upon an affidavit made by the defendant. The only affidavit upon which the motion was founded was that of the defendant’s attorney, and it has been settled, by repeated adjudications, that such an affidavit is insufficient. The only reason given by the attorney why this affidavit is not made by his client is that the defendant whom he represents is a foreign corporation, and all of its officers are without this state, and that he (the attorney) has charge of this action. The attorney cannot know that the defendant needs the particulars which it claims, or that it has not in its possession all the facts which it seeks to compel its adversary to disclose. The fact that the defendant is a foreign corporation does not affect or vary the ordinary rule which governs upon this subject, and there is no more reason why the affidavit .upon which such a motion is based should not be made by its officers than by an individual defendant, or by the officers of a domestic corporation. As the plaintiff has not appealed from so much of the order as granted the motion for a bill of particulars in part, we can only affirm the order appealed from, with costs.

Order appealed from accordingly affirmed, with costs and the usual disbursements.

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


author: Per Curiam.

text:
    In the Matter of the Application of The Board of Rapid Transit Commissioners to fix Compensation.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    Railboads—Compensation of bapid tbansit commissionebs.
    In view of the time employed by the rapid transit commissioners in the business of the commission, the value of their labors, and the interests of the public, the sum of $5,000 to each is fixed as treasonable compensation.
    Application to fix compensation of the board of rapid transit commissioners.

      Platt & Bowers, for petitioners.
   Per Curiam.

The question of the proper compensation to be awarded to these commissioners is a difficult and delicate one. We recognize the high character of the gentlemen who compose the commission, the importance of their services, and the extent of their labors. It will, of course, be impossible adequately to compensate such gentlemen for what they have done without unduly burdening the bidders at the sale of the franchise, or the city, in case that sale is without immediate result; and we know that these -commissioners are public-spirited citizens, who have doubtless served in this matter, not from any personal or pecuniary motive, but because of their desire to improve the city and to benefit the people. At the same time, a fair and moderate allowance should be made, based upon some general principle with regard to similar services. The legislature has frequently fixed an annual salary of $5,000 as a fair compensation for commissioners in various public boards of this city. The duties of the present commissioners were somewhat analogous to those imposed upon the board known as the “ Aqueduct Commission,” though we think their current labors probably exceeded those of this board.

Certainly the responsibility of the present commissioners was very great, and their reports, which are elaborate and comprehensive, will not only aid in the solution of the present problem of rapid transit, but will undoubtedly serve as a useful guide in the future. The evidence shows that there were 250 days of actual-service, during which from one to three hours of time was given by these gentlemen to the business of the commission. Public meetings were held and attended, engineers were employed, a great variety of plans were considered, various sections of the city were personally examined, the motive power was thought out; in brief, a great part of the commissioners’ time was faithfully devoted to the important trust which devolved upon them. We feel that an allowance of less than the ordinary salary of, for instance, an aqueduct commissioner, to each of these gentlemen would be unworthy of the occasion, and essentially unjust. More they have undoubtedly earned, if their earning capacities as business men are to be considered. But we do not deem this to be the criterion, nor do we imagine that the commissioners claim any special consideration on that head. An allowance of, say $5,000,. to each commissioner may seem inadequate, but it represents the medium between what would be paltry and what might be burdensome. Such an allowance is certainly reasonable, for it eliminates every consideration save the character and extent of the services rendered and their value to the community. For special quality of service, and for individual sacrifices, the commissioners must look to public gratitude for their reward. An allowance of $5,000 will, therefore, be made to each commissioner.

Van Brunt, P. J., O'Brien and Barrett, JJ., concur.


text:
    The People, Resp'ts, v. Sylvester F. Wilson, App'lt.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    Criminal law—Appeal—Dismissal—Stipulation.
    Where a motion to dismiss an appeal in a criminal case for want of . prosecution has been denied upon appellant giving a stipulation that it might be dismissed if he was not ready for argument at the following term, a similar motion made at the following term will be granted, although he makes affidavit that he has been unable to procure the stenographer’s notes in time to comply with his stipulation.
    Motion to dismiss appeal.

      Delancey Nicoll, disk atty., for the motion;

      J. D. Hallen, opposed.
   Per Curiam.

When a motion was made at the last term to dismiss this appeal, an affidavit was filed in which it was distinctly stated that the appeal might be dismissed unless the defendant was ready for argument at the present term. Although the defendant was seriously in default, so much so that in a civil case he would not have been relieved, the court yielded to the earnest solicitations of counsel, and agreed to give him one more opportunity of presenting his case. Another motion has now been made to dismiss, and again it appears that the defendant has been derelict. The stipulation which he made in accordance with his own offer after our decision has not been complied with, and again he,appeals for the exercise of further discretion to enable him to delay the hearing of this appeal. The defendant states in his affidavit that he has been unable, with due diligence, to obtain the stenographer’s notes in time to -comply with the stipulation ; but he should have thought of this before he deliberately offered to enter, and entered, into such stipulation. When he asked the court to make the order in question, he knew just what he would have to do with reference to obtaining the stenographer’s notes. He says that the assistant district attorney agreed to take the case at a day later than that specified in the stipulation ; but he furnishes us with no such agreement in writing, and the fact that the district attorney presses this motion indicates very clearly that the suggestion of a verbal agreement is disputed. There has been most unreasonable and persistent delay and inactivity in bringing on this appeal; and the only activity which the court has observed on the part of the appellant is the unauthorized and improper communications which he persists in addressing to the judges, communications which his counsel, if he were aware of them, should have^ prevented. We think that this appeal must be dismissed.

Yak Brunt, P. J., O’Brien and Barrett, JJ., concur.


text:
    Reuben I. Radney, Resp't, v. Garry M. Hutchinson, App'lt.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    Venue—Residence—Affidavit.
    On motion for change of venue on the ground of nonresidence of the plaintiff, proof by affidavit that plaintiff was domiciled in the state at the commencement of the action is not sufficient to overcome proof of non-residence; as residence and not domicil is the criterion.
    Appeal from an order denying a motion to change the place of trial of this action from the county of New York to the county of Cayuga, as the proper county, on the ground that at the commencement thereof plaintiff was not a resident of this county, but resided in New Jersey.

      Mortimer V. Austin {Abel K BlacJcmar, of counsel), .for app’lt;

      George W. Gibbons, for resp’t.
   Per Curiam.

This motion was made by the defendant, a resident of Cayuga county, to change the place of trial to that county, upon the ground that the county designated in the complaint was not the proper county by reason of the fact that the plaintiff at the commencement of the action was not a resident of the city and county of New York. The fact that he was not a resident of this county is clearly established. The plaintiff, in answer to the affidavits of the defendant and of three witnesses, showing his residence in New Jersey, seeks to avoid the force of these affidavits by asserting that he is not a nonresident of the state, and that he is a resident of Spring Yalley, in Rockland county; but he does not state that he was a resident of Rockland county at the time of the commencement of the action. He adds that he was domiciled in Rockland county prior to the commencement of the action; but residence, and not domicil, is the criterion. As the proof of the plaintiff’s nonresidence at the time of the commencement of the action is not met" by anything stated in the plaintiff’s opposing affidavit, the motion should have been granted. The order should, therefore, be reversed, with the usual costs and disbursemeuts, and the motion to change the place of trial to Cayuga county granted, with costs.

O’Brien and Barrett, JJ., concur.


text:
    Joseph Benjamin Dimmick, Trustee, Resp't, v. C. Godfrey Patterson, Impl'd., App'lt.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    Will—Contingent interest—Directon to divide at future time.
    By testator’s will his estate was to be divided in three parts, the income of one of which was given to his daughter for life, with remainder to her heirs and assigns; the income of another was given to his son until he became thirty years old, when one-half should be given him, and the balance when he was forty, and provision was made in cage he died before reaching either age; the income of the third was given to the widow for life, and on her death the executors were directed to divide it between the son and' daughter, to be governed and affected by the provisions touching their shares. The son lived to be forty-five, but died before the widow. Reid, that his interest in the latter third was contingent upon his arriving at the age mentioned and surviving the widow; that it did not vest until her death, and that an assignment thereof by him carried nothing to the assignee.
    Appeal from a judgment of the special term construing the will of Joseph Benjamin, deceased.

      Henry Major, for app’lt;

      James B. JEly, for resp’t.
   Barrett, J.

Joseph Benjamin died in 1878. By the third clause of his will he directed the residue of his estate to be divided into three parts. The income of one of these parts he gave to his daughter, Lucretia, for life, with remainder on her death to her heirs and assigns. The income of another of these parts he gave to his son, Joseph R:, until he arrived at the age of thirty years; upon attaining which age he gave the equal half of said part to Joseph R., and his heirs and assigns forever. The income of the remaining one-half he gave to Joseph R. until he arrived at the age of forty years; upon attaining which age he gave the residue of the part to Joseph R. “ and to his heirs and assigns forever.’ Elaborate provision follows in this third clause for the contin-’ gency of Joseph R.’s death before the said part should vest in him either in part or wholly. In the contingency of his death before such vesting, this part is given to Joseph R’s children, if he should leave any him surviving, and to their heirs and assigns forever. If be should leave a widow, but no children, another disposition of the part is made, and if he should leave neither widow nor children there is still another disposition. The income of the third part of the residue Joseph gave to his wife during her life, and upon her death this third part is disposed of by the fourth clause of the will, which brings up the question presented for our consideration. This fourth clause reads as follows:

“ Fourth. At the death of my said wife I direct that the said part appropriated, as aforesaid, to her use shall be equally divided, and the one-half thereof be added to the said part appropriated, as aforesaid, to the use of my said daughter, and the other half thereof be added to the said part appropriated, as aforesaid, to the use of my said son, and each be governed and affected in every respect by the provisions of this, my will, touching the said last two mentioned parts respectively, as fully and particularly as if such additions had originally constituted portions of said parts.”

Joseph R. Benjamin lived to be forty-five years of age, but he died before his mother, the testator’s widow. The appellant’s contention is that, upon Joseph R.’s attaining the age of forty years, he acquired a vested interest in one-half of this third part, the income of which was so given to his mother for life, and that, consequently, his assignee, Patterson, became entitled upon her death to take and enjoy so much of that one-half as was attempted to be assigned to him.

We cannot agree-^ith the appellant in this contention. It seems to us very clear that Joseph R.’s interest, under this fourth clause, was contingent and not vested. There are no direct words of gift, and none from which a present gift can be implied. The intention of the testator is apparent throughout. As to the part first appropriated for the use of Joseph R, the intention is not left to inference or implication. It is expressed in plain language, namely, that such part shall not vest until he attains a certain age. Thus the vesting was to take place only when he became entitled to receive the principal of the part. In case of his death before that time, the part was to go to his children. If he had no childdren, it was then to go as directed in the later provisions of the third clause. The same intent pervades the fourth clause, upon which it will be perceived the third clause is engrafted. Upon the death of the widow the executors are there, that is, in the fourth clause, directed to divide the part previously appropriated to her use, and to add one-half thereof to the part first appropriated to the use of Joseph R, subject, however, to the provisions of the third clause. We are asked to construe this direction, to so divide and add upon the death of the widow, as equivalent to a direction to divide and add upon the death of the testator, and as thus effecting a present addition to the part first appropriated to the use of Joseph R, subject only to the life estate of the widow.

Such an interpretation would be contrary to the plain intention of the testator; and contrary, also, to well-settled rules of construction. The general intent of the testator was, as we have seen, to postpone the vesting until Joseph should become entitled to receive the principal. If he never became entitled to receive such principal, the testator provided most minutely for its disposition. It would be strange, indeed, if the testator’s intention, so clearly expressed in the third clause, were suddenly to change when giving the directions contained in the fourth clause. No such change is suggested in this latter clause. The vesting thereunder is plainly to take place, as in the third clause, when Joseph R. becomes entitled to receive the added principal, namely, upon the death of the widow, and then only upon his attaining the prescribed age. If the widow had died before he had attained that age, the added part would only have vested when the original part vested, namely, upon his arrival at the prescribed age. The part to be added could not, therefore, have vested in Joseph B. at the death of the testator, nor upon his arrival at the age of forty years, in the lifetime of the widow, for the reason that it was not to be added to the original part, nor was it to come under the^ provisions of the third clause of the will until the death of the' widow. The contingency provided for in the third clause is Jos-, eph B.’s arrival at a certain age. That provided for in the fourth clause is the death of the widow plus the contingency contained in third clause. This was the testator’s intention, and it was in harmony with the rule that where the only gift is found in a direction to divide at a future time, the gift is future and not immediate. Goebel v. Wolf, 113 N. Y., 412; 23 St. Rep., 176; Warner v. Durant, 76 N. Y., 133; Smith v. Edwards, 88 id., 92.

This general rule is subject to the qualification that a contrary intention may be collected from particular circumstances. Leake v. Robinson, 2 Mer., 363. But every circumstance here points to an intention in precise accord with the rule. The gift is not to be severed instanter from the general estate for the benefit of the legatee, as in Warner v. Durant, 76 N. Y., 136, nor do the terms of the bequest import a gift and also a direction to pay at a subsequent time, Manice v. Manice, 43 N. Y., 369.

Under this will the title was vested in the executors for the purposes of the trust in favor of the widow, and it is only upon the termination of this trust that the remainder is to be divided into two parts and added to the original parts appropriated to the use of the testator’s son and daughter. This remainder, to be so divided and added, vested only upon the death of the widow, and consequently, Joseph B.’s assignment, made prior to his mother’s death, conveyed nothing to the assignee.

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

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


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

text:
    James Talcott, Resp't, v. The Wabash Railroad Company, App'lt.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    1. Carriers—Liability for loss of baggage.
    The sale of an ordinary through ticket, and the checking of the passenger’s baggage between the two points, renders the carrier liable to transport the passenger and his baggage to the place named, and it is liable for the loss of such baggage on one of the connecting lines.
    2. Same—Property belonging to others than passenger.
    The mere fact that the passenger pays for extra baggage, and Informs the baggage-master that the trunk contains samples, in the absence of information that such samples belong to others than the passenger, is not sufficient to authorize an inference of an agreement to carry the property as freight, so as to render the carrier liable to the owner.
    3. Same—Assignment of claim.
    An assignment of the passenger’s claim for loss against the connecting road on which it occurred is insufficient to transfer his right of action against the original carrier.

      Appeal from judgment entered upon verdict directed by the court, and from order denying motion for new trial.
    (?. F. Brownell, for app’lt;

      C. F. Mailhewson, for resp’t.
   Van Brunt, P. J.

This action was brought by the plaintiff to recover on his own behalf, and as assignee of various parties, damages for the loss in transit of alleged baggage, alleged to have been accepted by the Wabash Western Bailway Company, the predecessor of the defendant, at Chicago, in April, 1889, for transportation to the city of New York.

The Wabash Western Railway Company, in combination with the Grand Trunk Railway Company and the West Shore Railway Company, formed a through line from Detroit to Chicago and New York, tickets being sold from Detroit or Chicago to New York; in which case there are coupon tickets, the coupon of each company being for its own portion of the road. On the 27th of April, 1892, one F. H. Cullom purchased at the Chicago office of the Wabash Western Bailway Company a coupon ticket from Chicago to New York and return over the route of the Wabash, Grand Trunk & West Shore companies. The through fare of $25 was paid by Cullom at the time of obtaining his ticket. Cullom was a commercial traveler, in the employ of the plaintiff, and was returning to New York after a trip to the Pacific coast, California and Oregon. The ticket purchased by him entitled him to have 150 pounds of personal baggage carried with him upon any train without extra compensation; while for his baggage in excess of that weight an excess baggage charge is made at a rate per 100 pounds according to the distance. "When Cullom reached Chicago he had four trunks which he had brought from the Pacific coast. Three were the property of the plaintiff, and the fourth belonged to the American Hosiery Co. and the New Britain Co., and he was bringing them for these parties to deliver to them when he got to New York. In the three trunks belonging to the plaintiff Cullom had some of his personal effects. Soon after purchasing his tickets Cullom took these, trunks to the depot and had them checked from Chicago to New York as his baggage.- When "lie arrived at the depot he went to the baggage room, and had a conversation with a man marked “Baggage Agent.” He presented his ticket and told where he wanted the baggage checked to. After weighing them, the baggage man said: “They weigh light, don’t they?” and he told him they were samples of underwear, and the baggage man made some reply which Cullom did not hear. He then figured up the excess of baggage and told Cullom that it amounted to $16, which he paid. Cullom further testified that he did not tell the baggage man that the trunk contained samples which were not his own, or he was not using in his own business; that he merely told him they were samples of underwear; that he did not tell him he was a commercial traveler ; that he knew it was a passenger depot and not a freight depot; that he took the trunks to carry with him as baggage on the train and received a cardboard receipt or excess check, dated on that day, showing the payment of $16 for the transportation of the baggage in question from Chicago. On April 28 an accident occurred on the train in which Cullom had taken passage, by which the baggage car was destroyed, while on the Grand Trunk Railway. This action was brought to recover the value of the baggage and merchandise contained in the four trunks, the causes of action having been assigned to plaintiff. Upon the trial the court directed a verdict in favor of the plaintiff for the samples belonging to the plaintiff and for the personal baggage of Mr. Cullom.

Prior to such direction, the defendant’s counsel asked the court to go to the jury upon the question whether there was a special contract made with the defendant apart from the contract made upon the purchase of the ticket; and also upon the question whether the defendant agreed, by the contract upon the sale of the ticket, to carry the baggage to New York and deliver it in New York; and also whether the property shown to have been destroyed was not destroyed in the hands of the Grand Trunk Railroad upon its line of route. These requests being denied, an exception was duly taken; and from the judgment entered on "said verdict, and from the order denying a motion for new trial, this appeal is taken.

We think, as far as the personal baggage of Cullom is concerned, the plaintiff had a right to recover. Cullom purchased a ticket to be transported from Chicago to New York, with his personal baggage not to exceed 150 pounds in weight This contract he made with the defendant’s predecessor ; and he paid the price charged for the making of such a contract and the furnishing of the transportation. We cannot see that the passenger, under the circumstances stated, has anything to do with the private arrangements which have been made between connecting lines. The original sale of the ticket makes the contract. The question of its being a coupon ticket is entirely immaterial, as that is undoubtedly a regulation between the connecting companies themselves for. the purpose of keeping track of the business done by each, and of the origin of the contract of transportation. The connecting railroads did not participate in the making of the contract ; nor did they, as far as Cullom was concerned, assume any obligation in respect to his carriage or in respect to the transportation of his baggage. The price paid was for the whole distance between Chicago and New York; and it would seem necessarily to follow that the defendant’s predecessor having made this contract to transport Cullom to New York, together with his baggage, he was not required to look to the agents of the defendant’s predecessor in case of their failure to do their whole duty in the performance of this contract. This seems to be the principle which was enunciated in the cases of Burnell v. N.Y. Central R. R. Co., 45 N. Y., 188; Cary v. Toledo R. Co., 29 Barb., 35; Burtis v. B. & S. T. R. R. Co., 24 N. Y., 275; Condict v. Grand Trunk, 54 id., 505; Sloman v. G. W. R Co., 67 id., 211.

The cases cited by the appellant in no way affect these authorities; that of Isaacson v. N. Y. Cent., 94 N. Y., 278, being substantially an authority in favor of the views above expressed. In that case the plaintiff purchased tickets from the defendant from Niagara Falls to New York and return. He also held return tickets from Niagara Falls to New Orleans by the Mobile route, purchased at New Orleans; and there was no evidence that the defendant company was interested in that route. The plaintiff took the tickets above stated, presented them with his baggage to the defendant’s baggage master at New York, and requested him to check the baggage from New York to New Orleans. The baggage master asked to see the tickets, examining them, and thereupon gave the plaintiff checks to New Orleans. The plaintiff put them in his pocket without examining them. On the same day the plaintiff and his family commenced his return journey to New Orleans. On his arrival it was ascertained that the checks given at New York were given for what is called the Great Jackson route from Niagara Falls to New Orleans. It subsequently transpired that the plaintiff’s baggage was sent over the route indicated by the checks, and was substantially destroyed by an accident at Ingaloo, Miss. The delivery of the baggage by the defendant at Niagara Falls to the agents of the Jackson route'was a direct violation of the plaintiff’s instructions, and of the undertaking of the baggage master on receiving the baggage.

The court held that the request to check over the Mobile route assented to by him constituted an agreement between the company and the plaintiff, unless the" plaintiff’s omission to examine the checks was contributory negligence; and the court reversed a nonsuit. The court say that there arises on the sale of a ticket a contract to carry the passenger and his baggage between the points indicated, and that the passenger has a right to assume that the baggage master possesses the requisite authority to make all ordinary and usual arrangements with passengers in respect to the transportation of their baggage. It would, therefore, seem to follow that, by the sale of the ticket between Chicago and New York, and the checking of the baggage between these two points, the defendant’s predecessor became liable to carry out that contract so far as the personal baggage of Cullom was concerned.

But we think a different question arises with respect to the merchandise contained in these trunks.

It is claimed that there was a special contract entered into for the carrying of this merchandise, and that the baggage master was informed that it was merchandise; and that, therefore, a recovery could be had.

We think there are two answers to this claim. The first is that there is no attempt to show that the baggage master was informed that the property belonged to anybody else than the passenger, and the sole undertaking of the railroad company was to transport Cullom, the passenger, <¿nd his baggage, and not the merchandise of other people. And furthermore there was no undertaking whatever to carry merchandise as such. It is true Cullom swears he stated to the baggage master that these trunks contained samples of underwear. But it does not appear that the baggage master had any authority whatever to make any contract of affreightment, or to allow merchandise to be carried as freight. And it does not appear that he ever did exercise any such authority.

In the case of Stoneman v. Erie R. Co., 52 N. Y., 429, the transportation company demanded and received from the passenger compensation as freight for the transportation of packages containing merchandise, and a recovery was had expressly upon the ground that the transportation was paid for as merchandise and not as baggage, and there was no question raised in that case as to the authority of the agent of the transportation company. So in the case of Sloman v. G. W. R. Co., 67 N. Y., 211, it was held that where the company receives the trunks of a passenger with notice that they contain property other than personal baggage, and charges and receives extra compensation for their transportation, an agreement to carry the property as freight may by the jury be inferred therefrom. But the authority of the baggage master in that case to receive the trunks as freight was not raised, and upon the trial the court stated that the authority of the baggage master seems to have been assumed, he being in the receipt given for the tranks, as well as in the motion for the nonsuit, designated as the agent of the defendant; the simple question submitted to the jury being upon the claim that there was no evidence as to whether the defendant’s agent was notified that the baggage was other than ordinary baggage. This case clearly shows that if the company undertakes to carry other peoples’ merchandise as freight, they are liable as any common carrier would be, and that is all; and that such facts must appear from which it can be reasonably inferred by the jury that this contract of affreightment was entered into with knowledge of all the facts. In the case at bar there is no claim whatever that any statement was made that any part of this merchandise was owned by anybody else but by the passenger Cullom; and there is nothing from which it can be inferred that the company undertook to carry this merchandise as freight. On the contrary, it is taken as baggage; it is checked as baggage; it is paid for as baggage, and it was represented to the company by Cullom that it was his baggage. Therefore, there was no contractual relation entered into by the predecessor of the defendent with Cullom as the agent of the plaintiff, in respect to the merchandise belonging to him, giving the most liberal construction to the testimony possible.

We think, therefore, that the court erred in directing a verdict, and that the complaint should have been dismissed in respect to the merchandise belonging to others than the passenger, and the question of notice as to any other merchandise which may have belonged to the passenger submitted to the jury.

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

O’Brien, J.

I concur in result. As to the personal baggage of Cullom, assuming he had a claim therefor against defendant, he still retains it, and the plaintiff could not recover against the Wabash Company by virtue of an assignment made by Cullom of his claim against the Grand Trunk Railroad; and as plaintiff bases his claim upon the assignment, from Cullom of a claim against the Grand Trunk, I fail to see how that is available in a suit against the Wabash.

But I do not assent to the view that the Wabash Road is liable as matter.of law for such baggage, having in mind the relation of the defendant road to the other connecting lines, as shown by the testimony, and the coupon ticket issued to Cullom, with the conditions thereon, which specified that the relation of the Wabash was that of an agent to such roads, and limiting its liability for damages to such as occurred on its own route.

I think the appellant is right in his contention that the duty to-provide for the safe carriage of the baggage is incident to and implied from the contract for the carriage of the passenger himself, without any specific agreement or separate compensation, and that where, as here, the contract between the parties is evidenced by the terms specified upon the ticket purchased by the passenger, the rights of the parties would be determined by such contract, in the absence of some evidence showing that the passenger was prevented from seeing, or, in fact, did notread such conditions. Assuming that such conditions were brought home to the passenger, -or that he became bound thereby, then what was said in Auerbach v. R. R. Co., 89 N. Y., 281, would be applicable:

“ A separate contract was made for a continuous passage over-each of the roads mentioned in the several coupons. Each company, through the agent selling the tickets, made a contract for a passage over its road, and each company assumed the responsibility for the passenger only over its oyn road. Ho company washable for any accident or default upon anyroad but its own. This-was so by the very terms of the agreement printed upon the-ticket.”

As to the samples belonging to the plaintiff, in addition to the-reasons assigned by the presiding justice, I think it was at least a question for the jury whether the damage occurred on the Grand Trunk road; and if the jury found it did, the further question remained whether such samples were not carried upon an express-contract evidenced by the conditions specified on the ticket by which the Wabash limited its liability for damages on its own route, holding, as to connecting lines, the relation of agent.

Barrett, J.

I concur in the result. In my judgment the plaintiff should have been nonsuited as to both causes of action. As to Mr. Talcott’s own goods, I agree with the views-expressed by the presiding justice. As to Cullom’s baggage, I agree with Mr. Justice O’Brien that the claim still exists in Cullom and was not transferred to the plaintiff by an assignment of a claim against another corporation. But I deem it unnecessary to pass upon the remaining question discussed by Mr. Justice-O’Brien, for the reason that the facts proved are insufficent to raise the question. There was no evidence that any coupon ticket was-issued to Cullom by the defendant’s predecessor. Cullom asked for a through ticket and paid for it. Upon the trial the defendant’s counsel produced a coupon ticket and asked Cullom whether the ticket which he received was in that form. At first Cullom said that the ticket he received was similar to that shown him, and that he thought his ticket was in that particular form. But subsequently he said he did not remember the form of his ticket, nor whether it was the same kind of ticket as that exhibited to him by counsel; that after the accident he read his ticket, and that he did not think there was anything on it with regard to the Wabash Company acting as agent for other companies. Finally he was asked this question and gave this answer:

Q. This ticket which you had, was it of the form D. X. 325 ? Can you say now, after consideration, whether it was of this form •of ticket, of which this is a copy ? A. I cannot tell; I don’t know.”

The form of ticket so produced by defendant’s counsel upon the trial was not offered in evidence, but was merely marked for identification, and the limitation of liability claimed by the defendant was, therefore, unproved.

Thus the defendant's general liability, resulting from the sale of a through ticket, was the true measure of responsibility flowing from the facts. That general liability was not limited by any special contract actually proved, and, consequently, the rulé stated, by the presiding justice properly governs.

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


text:
    Robert Ernst, App'lt, v. Darius G. Crosby, Ex'r, Resp't.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    Lease—Prostitution.
    On reference of a claim against a decedent’s estate for rent under a lease, it appeared that prior and subsequent to its execution the premises were occupied by other persons as a house of prostitution; that negotiations for the lease were had with such persons and a lease drawn to them, but subsequently altered so as to run to the decedent, and that subsequent thereto the lessor collected the rent directly from such persons. Feld, sufficient to warrant a finding that the premises were let for the purpose of being used as a house of prostitution.
    (Van Brunt, P. J., dissents.)
    Appeal from judgment in favor of defendant, entered on report of referee.
    Reference of a disputed claim for rent under a lease.

      JS. J. /Spink, for app’lt;

      Theo. H. Silkman, for resp’t.
   Barrett, J.

The evidence justified the referee’s finding that the intention of both parties, lessor and lessee, in making the lease was that the premises should be used as a house of prostitution. The lessor, Morris, knew that the premises had been previously used by the Clarks for such purpose, and the intention was to keep them there in the same business, under cover of a lease for innocent purposes to Mowatt. It was simply a continuation of an existing demise, for Mowatt was also lessee in the prior lease, and the receipts.for rent (paid by the Clarks to the agent, Flanagan, during the existence of this, prior lease) were given in his (M.owatt’s) name. Morris knew that Flanagan was agent for the Clarks’ landlord, whoever that landlord might be. He knew, also, on April 8, 1889, when he contracted for the purchase- of the premises, that there was an existing lease thereof, which would expire on the first of the following month. This lease was referred to in the contract, although Mowatt’s name as lessee was not there specified. Thus, however, Morris had notice either that the Clarks themselves were such lessees, or that they were occupying as subtenants of some unnamed lessee. He knew that the Clarks were paying rent to someone who was Flanagan’s principal, for he told Mrs. Clark not to pay Flanagan a small sum which she was about to pay, but to apply such sum to repairing the house. The negotiation for the new lease was between Morris and Mrs. Ciarle. Morris told her that he would give her a long lease, and sent her down to his lawyer to get it. This was with full knowledge of L er business, and of the use to which the house was being put. Mrs. Clark went down to Morris’ lawyers, and the new lease was actually made out in the names of the Clarks as lessees. Such lease, so prepared, was even signed by the man Clark. Afterwards this lease was destroyed, and the new lease, as finally made out and signed, ran to Mowatt as lessee. But there was no change whatever in the existing arrangement, except that the Clarks now paid their rent directly to Morris, instead of, as formerly, to the agent Flanagan. The first payment was made almost immediately after the execution of the new lease, namely, on the 1st day of May, 1889. And Mrs. Clark testified that Morris “ treated the girls ” in the house whenever she paid him the rent. Was Morris, it may be asked, acting as agent for his own nominal lessee, Mowatt, when he collected these rents in this ho.use of prostitution from its proprietress and treated the occupants ? And how did it happen that Mowatt, the existing lessee in the expiring lease, was substituted for the Clarks after Morris had promised Mrs. Clark the new lease, and had sent hero down to his lawyers to obtain it, and even after the new lease had been made out to the Clarks and signed by one of them?

We find no answer to these questions in any testimony offered by the plaintiff, nor do we find any answer to the group of facts and circumstances thus presented by the defendant. Those facts and circumstances, so far as they are material, may be recapitulated as follows:

Morris well knew before he purchased the property, and before he executed the lease in question, that the premises were being occupied and used as a house of prostitution, and that the occupants were paying rent to an agent therefor. Morris, with this knowledge, promised these occupants a new lease, and sent them to his lawyers to have it prepared ; it was so prepared, and then it was destroyed and a lease to Mowatt substituted. Subsequently Morris dealt directly with these occupants, and collected rents from them, with full knowledge of their continuously corrupt use. And he did this without regard to the form of the new lease or to the lessee named therein.

It seems to me that a prima facie case of corrupt purpose on Morris’ part when he executed the lease to Mowatt was thus made out, and that such corrupt purpose, to which all the circumstances so convincingly point, called at least for explanation. But such explanation was not forthcoming. Morris was not called as a witness, and Mrs. Clark’s testimony with regard to her negotiations and transactions with him personally, although, of course, the testimony is of a tainted character, was uncontradicted. There were crucial parts of her testimony which, if untrue, could easily have been refuted. There were also other parts which were fully corroborated.

Upon the whole, I think the referee’s findings were entirely justified, and, as there was no error in the admission or rejection of testimony, or in the legal conclusions deducible from the facts found, the judgment should be affirmed, with costs.

O’Brien, J., concurs.

Van Brunt, P. J.

(dissenting).—This case arises out of a claim presented by the plaintiff for rent against the estate of John Mowatt, deceased, of premises No. 154 West Thirty-second street, in the city of Úew York, which was disputed by the executors of said Mowatt, and a reference having been ordered, the referee reported against the claim, upon the ground that at the time the lease in question was entered into between the lessor, one Morris, and the lessee Mowatt, it was intended that said premises should be used as a house of prostitution; and the question presented upon this appeal is whether there is evidence sufficient to sustain this finding of the referee.

It appears to be undisputed from the evidence that in 1888, 1889 and 1890 one Clark and his wife occupied the premises and kept them as a house of prostitution, and that on the 8th of April, 1889, Morris made a contract with the then owner of the house for the purchase of the same, which contract provided for the passing of the title on the 27th of April, 1889, and was made subject to a lease of said premises expiring on the 1st of May, 1889. On the 26th of April, 1889, Morris leased the premises in question to said Mowatt, by which lease it was expressly provided that the house should be used as a dwelling house only, and that the lessee should obey all lawful orders of the health department and all other departments of the city government

There is no evidence that Morris knew who the lessee mentioned in the lease expiring on the 1st of May, 1889, was.

It further appears that subsequent to the lease by Morris, the premises continued to be occupied by Clark and his wife and used as a house of prostitution, and Morris visited the premises ■luring this time.

We have searched the record in vain for any satisfactory evidence going to show that at the time of the making of the lease Morris knew that there was any connection between the lessee Mowatt and the Clarks.

It is true that Mrs. Clark swears that in a conversation with Mr. Werner, who was the attorney of Morris for the purpose of drawing up the papers, he said he could not make out a lease to Clark, or he would be held liable if he rented the place for that purpose. But this by no means necessarily proves that the lease-was made to Mowatt as a cover for the occupation of the Clarks.

It is true that Mrs. Clark swore that Morris agreed to give them a lease for five or ten years ; but the evidence shows that Morris refused to execute any lease to the Clarks, although he did execute a lease to Mowatt. And, as has been already said, there is no evidence whatever that Morris knew anything about the connection between Mowatt and the Clarks. Morris’ knowledge of the occupation of the premises subsequent to the execution of the lease could not invalidate the same if there is no evidence of an illegal intention at the time of the making of the lease. Great stress is laid by the counsel for the defendant upon the fact that Morris was not examined as a witness, or called upon to testify. But, until it had been shown with a reasonable degree of conclusiveness that Morris, in the execution of the lease to Mowatt, was actuatéd by an unlawful intent, it is difficult to see what he had to explain, and the case seems to be absolutely barren of evidence from which such a conclusion may be arrived aL

It would appear that the referee was controlled in his decision by the fact that Morris knew that his house had been occupied as a house of prostitution prior to his letting to Mowatt and subsequent thereto, and that, therefore, it must have been let with the intent that it should be so kept. But we do not think that this conclusion is one which must necessarily obtain; and a person cannot be deprived of his property upon mere inference, when the evidence from which such inference is drawn is susceptible of a different conclusion. The evidence of Mrs. Clark in many important particulars is directly contradicted by that of Mr. Werner ; and certainly the occupation in which she was engaged was not such as would naturally add to her credit, notwithstanding her claims of reformation.

Upon evidence of this character we do not think that a person should be deprived of his property.

The judgment should be reversed, and a new trial had before a new referee, to be appointed by this court to determine the question at issue between the parties, with costs to plaintiff to abide the final result.

Judgment affirmed, with costs.


author: Van Brunt, P. J.

text:
    John E. Blackman, Pl'ff, v. Elsworth L. Striker, Def't.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    Ejectment—Reservation in deed as to burial ground.
    In the apportionment of lands among the heirs of a decedent it was provided that the one who drew the lot containing the family burying ground should, in any future deed conveying the same, reserve said burying ground for the purpose of burying with liberty of access thereto. The one who drew said lot afterwards conveyed it to defendant’s grantor, the deed reserving to ‘' the heirs of ” said decedent all of said burying ground, “ with free ingress, egress and regress ” to bury the dead. Meld, that there was no reservation of the fee of said burying ground, but only of the easement of burial; that the fee passed by the deed and that plaintiff as the grantee of the heirs could not maintain ejectment.

      Motion by the plaintiff for new trial upon exceptions ordered to be heard in the first instance at the general term.

      George Hoadly, for motion;

      George Bliss, opposed.
   Van Brunt, P. J.

This action was brought against the defendant Striker and his tenants to recover possession of a lot of land at the southwest corner of Ninth avenue and Fiftieth street in the city of New York.

The facts in relation to the question involved are substantially undisputed, andaré as follows: John Hopper, who died in 1778, was the owner, at the time of his decease, of a farm in the out ward of the city of New York, and by his will, dated October 12, 1778, arid proved in August, 1779, he devised all his land in the out ward equally to his sons Matthew, John, Andrew and Yellis, his daughter, Jemima Horne, and the four children of his deceased son, Wyssel Hopper. He ordered that after his decease the farm should be divided into six equal portions by competent and disinterested persons, one of which parts should belong to his said son Matthew, one to his said son John, one to his said son Andrew, one to his said son Yellis, one to his said daughter Jemima, and one to the four children of his deceased son Wyssell. The devisees were to determine by lot which parcel should belong to each in severalty after a survey map and a chart or map in partition had been prepared. Accordingly in 1782 a map in partition was prepared, and before drawing for their allotments the devisees entered into an agreement as to the construction of lanes through the property; the removal of fences, and the disposition of certain buildings, and in respect to a family burying ground which was located on the farm and embraced within lot two. The recital as to the burying ground is as follows: “ Whereas on the lot numbered two there is erected a burial ground now enclosed with a good fence, that the same forever hereafter remain, continue, and be for the family burying ground, and that whoever shall draw said lot of land and shall hereafter sell that, the said burying ground shall be reserved in the deed to the purchaser for the above named laudable purpose of burying, with full liberty to pass and repass as occasion shall require.” Matthew Hopper, the eldest son, drew lot number two, within which was situated the said burying ground. All the devisees conveyed to Yellis Hopper, to Andrew Hopper, to John Hopper, and to John Horne, the husband of Jemima, the several allotments drawn by them. But there is no evidence of any deed to the minor children, nor of any deed to Matthew Hopper. In 1783 Matthew Hopper conveyed to John Hopper and to - his heirs and assigns forever the lot of land which had been assigned to him, together with all and singular the garden, trees, ways, paths, passages * * * emoluments and hereditaments, whatsoever, to said lot of land belonging or in anywise appertaining, or which now or formerly have been accepted, reputed, taken, known, used, occupied or enjoyed, to or with the same as part or parcel thereof, or any part thereof, saving, excepting and reserving unto the heirs of said John Hopper, deceased, and to their and each of their heirs out of this present demise all that burying ground now in fence, consisting of forty-eight feet square, parcel of said lot of land, and commonly called the family burying ground, with free ingress, egress and regress into, on and from the same, to bury the dead, etc.

Without mentioning in particular the method, to whatever rights were acquired by John Hopper in this plot of land included in the burying ground the defendant Striker succeeded, and he, having taken possession of the same, the plaintiff claiming under conveyances from the heirs of Matthew Hopper, brought this action in ejectment.

The only question which it is necessary to consider upon this motion is the effect of the alleged exception in Matthew Hopper's deed to his brother John. A solution of this question depends upon the construction of the conveyances, and the evident intention of the parties in the provision therein contained.

That the burial ground in question was included in lot number two, and was so understood by the heirs of John Hopper, and that the title thereto was intended to pass by the allotment to Matthew Hopper, seems to be conclusively evidenced by the language of the agreement entered into between all the parties interested in the land of John Hopper, deceased. The agreement recites that whereas on the lot number two there is erected a burial ground * * * that whoever shall draw said lot of land, and shall hereafter sell that, the said burying ground shall be reserved in the deed to the purchaser for the above mentioned laudable purpose of burying, etc.; this language clearly showing that the title to the land embraced in the burying. ground went with lot No. 2. Consequently, if Matthew Hopper obtained the title to lot No. 2, he also obtained the title to the fee of the burying ground. That this was the understanding is further evidenced by the deed from Matthew to John Hopper, by which lot No. 2 is conveyed to John Hopper by particular description; the deed further continuing: “saving, excepting and reserving unto the heirs of said John Hopper, deceased, and to their and each of their heirs, out of this present demise all that burying ground now in fence, consisting of 48 feet square, parcel of said lot of land, and commonly called the family burying ground, with free ingress, egress and regress unto, on and from the same, to bury the dead, etc.”

By this clause there was a clear attempt to make a reservation in favor of the hqirs of a common ancestor for the purposes of burial. There was evidently no intention but what the grantee was to hold possession of the lot in question, subject to the easement of burial in favor of the heirs of the original John Hopper. There was no intention to reserve the fee, hut simply the easement of burial for the purpose of carrying out the agreement entered into by the heirs of said John Hopper. And that this was the intention was further evidenced by the fact that the reservation was not of anything to the grantor, but to others as well as himself; in fact, of all who came under the designation of heirs of John Hopper, deceased. If there had been any intention to except the fee of the burial ground from the grants, the exception would have been to Matthew Hopper, the grantor, and there would not have been an attempt to reserve a right to others, this being the evident intention as manifested by the conveyances which passed and the language used. It is clear that the plaintiff, from the conveyances from the heirs of Matthew Hopper, took no right to bring this possessory action upon the ground of a title superior to that of the defendant Striker, who, as the successor of the grantee in Matthew Hopper’s deed, was entitled, at least, to' the possession of the premises in question.

The exceptions should be overruled, and judgment ordered for defendant, with costs.

Barrett and O’Brien, JJ., concur.


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

text:
    Jane R. Griffing, Resp't, v. William E. Diller et al., App'lts.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    1. Fraud—Representations as to value by vendor oe real estate.
    A vendor of real estate is not liable for a false representation as to the value of property he oilers for sale; but, if the representation as to value is accompanied by other representations of material facts, it is not error in an action for fraud, where all the representations form part of the same transaction, to admit evidence of the representation as to value in connection with the other representations.
    3. Same—Brokers.
    An agent for the sale of real property is not liable for the falsity of a representation made by him as to its value, nor for other representations in regard thereto, although material and false, if he does not assume to make the statements on his own responsibility, but gives the sources of his information, and the facts are not such as would be peculiarly within his knowledge.
    3. Same—Laches.
    It is not a defense to an action for damages for fraudulent representations, which is not barred by any statute of limitations, that the plaintiff has been guilty of such ladies as might defeat the right to rescind a sale induced by the false statements.

      4. Same—Conspiracy.
    The gravamen of an action for conspiracy is fraud, and damages sustained thereby, and a recovery may be had therein against one of the defendants for fraud, although conspiracy is not made out.
    Appeal from judgment entered on verdict and from order denying motion for new trial.

      Joseph Fettretch, for app’lt,
    Diller; H. Q. Atwater, for app’lt,
    Condit; Denis McMahon, for resp’t.
   Yan Brunt, P. J.

This action was brought against the defendants to recover damages for fraud sustained by the plaintiff in_ consequence of an exchange of property brought about by the joint fraudulent misrepresentation of the defendants.

It appears that the plaintiff was the owner of certain property in New Canaan, Conn., and the defendant Diller was the owner of certain real estate in the city of New York, consisting of an apartment house at the southeast corner of One Hundred and Twenty-fourth street and Fourth avenue, which the defendant Condit had in his hands for sale or exchange. It was claimed upon the part of the plaintiff that her property was worth $11,000 over and above the incumbrances thereon, and that the defendants represented to her, to induce her to exchange said properties, and relying upon which representations she did so exchange, that defendant Diller’s property was worth $65,000, or $20,000 over and above the incumbrances ; and that its rental production was $1,000 per annum over and above all charges connected therewith, and that the apartment house was in good order and well rented. The evidence shows that most of the conversations with respect to this apartment house were with the defendant Condit, the broker in whose hands this house was placed for disposition; and, without stating in detail the evidence, it is sufficient for the purpose of this appeal to refer generally to the same, after considering one or two points of law which are raised upon the part of the appellants.

It is urged that the testimony with regard to the alleged value of the property and the statements in respect to such value were entirely immaterial, and could form no basis for a judgment upon the ground of fraud, because it is a well settled principle that mere false representations as to value give of themselves no cause of action. Chrysler v. Canaday, 90 N. Y., 272.

But it is also equally well settled that when such false and fraudulent representations are accompanied by other acts, such evidence may become competent and form the basis of a claim. In the case at bar there were other representations in connection with these assertions as to value, the truth of which representations would naturally be particularly within the knowledge of the defendant Biller; and that was as to the amount of rent which these premises produced. The evidence in regard to the whole transaction, therefore, was competent, if there was anything in re-' spect to these representations as to rent which made a proper case to go to the jury. It is proper here to state that, as far as the defendant Condit is concerned, there is no evidence of any fraudulent representation whatever in respect to the value of the property or-as to the rent. Those things which he stated in this regard appear by the evidence to have been stated by him to the plaintiff as coming from the defendant Biller, and that this was the source from which he derived his knowledge. There is no evidence that he made any misrepresentation in regard to the facts which Biller had stated to him in respect to this property. Therefore, as far as the defendant Condit is concerned, if there were any false representations made, he was not responsible therefor, inasmuch as he gave the sources of his information, and the facts were not such as would be peculiarly within his knowledge.

In respect to the defendant, Biller, however, there is proof upon which the jury had a right to find that he made personal representations that these premises rented for $1,000 over and above the charges thereon; and that the net income derived therefrom would amount to this sum. This representation, it appears, is untrue. It was something peculiarly within his knowledge, and the plaintiff in this action had a right to rely thereon. She swore she did so rely, and if the jury believed that she did, and found that the representation was false, then an action might be maintained -against the defendant Diller.

It may be urged that it is apparent from the evidence that the plaintiff did not rely upon this representation, because she wrote a letter in which she stated that she had been to see the house, and that she thought it, so far as she could judge, a very nice and desirable house, but, from the rents received, she thought the income of it over and above the interest, taxes, repairs and renting expenses must be very little, etc.

But it is to be observed that it was after this letter that the representation in regard to the amount of the rents was made by the defendant, Diller. In other words, Diller represented to her that the information which she had gotten by her visit to the house was erroneous, and that, instead of the surplus being very little, if anything, it was about $1,000. This was clearly something upon which the plaintiff had a right to rely, and if she did so rely, as already stated, she would have a cause of action against the defendant, Diller.

But the question is further raised that the plaintiff waited too long before she attempted to rescind, and that, having thereby accepted the bargain, she cannot maintain this action.

Even if she had no right to rescind by reason of her loches, she was not barred by any statute of limitations from recovering the damages sustained by the fraud.

It has been settled, ever since the case of Wardell v. Fosdick, 13 Johns., 325, that a vendee defrauded by false representations has an election of remedies : First, he may rescind ; or, secondly, he may recover damages for the fraud; and this is the nature of the action at bar. And it is equally well settled that in an action for conspiracy the gravamen of the action is fraud and damage sustained thereby, and that a recovery may be had against one defendant for the fraud, although conspiracy was not made out. Buffalo Lubricating Oil Co. v. Standard Oil Co., 42 Hun, 153; 3 St. Rep., 450; affirmed, 106 N. Y., 669; 8 St. Rep., 876.

Therefore, although no case was made out as against the defendant Condit, yet a verdict may be maintained as against the defendant Diller.

Upon the whole case, however, as upon the previous trial it seems to have been inferred that there was some liability against the defendant Condit, and this may have affected the question as to the defendant Diller, we think there should be a reversal as to both defendants, and a new trial.

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

O’Brien, J., concurs in the result

Lawrence, J.

I concur in the opinion that the judgment should be reversed as to Condit, but think it should be affirmed as to Diller.