author: Merwin, J.

text:
    The People, App’lt, v. Irving D. Lamb, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed February, 1895.)

    Pleadings—Action fob penalty.
    In an action for a penalty under section 37, chapter 338 of 1893, an allegation that the action was brought by the dairy commissioner, is not required.
    Appeal from a judgment, entered on a verdict in favor of defendant, and from an order denying a motion for a new trial.

      A. D. Wales, for app’lt; Jno. P. Wheeler, for resp’t.
   Merwin, J.

In the complaint in this case it is alleged that the defendant, on the 8th day of August, 1893, in violation of'sections 20., 22, and 37 of chapter 338 of the Laws of 1893, entitled “An act in relation to agriculture,” offered for sale and sold a quantity of adulterated and impure milk to a certain creamery, and thereby incurred the penalty of $100 provided by said section 37, and became indebted to the plaintiff thereby in the sum of $100. Upon the trial the plaintiff gave evidence tending to show that at the date referred to the defendant sold milk which was adulterated, within the. standard laid down in section 20 of the act. At the close of the plaintiff’s evidence, the defendant made a motion for a nonsuit on the grounds that the plaintiff has failed to establish a cause of action, and that it is necessary for the plaintiff to allege and prove that this action was brought by the state dairy commissioner. There was no such allegation in the complaint, or proof, and for this reason, as the counsel on both sides concede, the nonsuit was granted. By section 37; above referred to, it is provided that:

“Every person violating any of the provisions of this article shall forfeit to the people of the state of Hew York the sum of one hundred dollars for every such violation.”

Section 8 of the act is as follows:

“Sec. 8. Prosecution for Penalties. Whenever the commissioner of agriculture shall know or have reason to believe that any penalty has been incurred by any person for a violation of any of the provisions of this chapter, or that any sum has been forfeited by reason of any such violation, he may cause an action or proceeding to be brought in the name of the people for the recovery of the same.”

By section 9 it is provided that one-half of the recovery shall be paid to the county for the benefit of the poor, and the other half be paid into the treasury of the state, and be applicable to the payment of the expenses of the department of agriculture. By section 2 the commissioner of agriculture is authorized to employ such agents and counsel as he may deem necessary for the proper enforcement of the laws relating to agricultural products. The claim of the defendant is that it was necessary for the plaintiff to allege‘in the complaint, and prove, that the action was caused to be brought by the commissioner of agriculture. There is nothing in the statute that requires this to be alleged or proved as part of the cause of action. On the contrary, the occasion or propriety of giving such authority is predicated on the fact that a cause of action "exists. The cause of action accrues to the people upon the violation of the statute. In the complaint the particular acts or omissions which constitute the cause of action' are to be set forth. People v. Brooks, 4 Denio, 469. Very clearly, the action of the commissioner under section 8 is not any part of the cause of action. Nor does it affect the ownership of the right of action, for by section 37 it is only given to the people, and there is no provision for bringing.suit in the name of any other party. The objection of the defendant, therefore, must go either to the capacity of the plaintiff to sue or to the authority of the plaintiff’s attorney to appear. If the objection is deemed to relate to the capacity of plaintiff to sue, Fulton Fire Insurance Co. v. Baldwin, 37 N. Y. 648; Perkins v. Stimmel, 114 id. 359 : 23 St. Rep. 657; Nanz v. Oakley, 122 N. Y. 631; 33 St. Rep. 330 ; People ex rel. Meakim v. Eckman, 63 Hun, 212; 43 St. Rep. 457, then the defendant is not in a position to raise it, as it is not raised by demurrer, or in the answer. Code, § 499. If the objection relates to the right of the plaintiff’s attorney to appear for the plaintiff arid bring the suit, then, as a general rule at least, that is matter for a motion before the trial, and is not an issue to be disposed of at the trial. Clark v. Fitch, 2 Wend. 464. In People v. Denison, 17 id. 312," which was an action of ejectment, the defendant offered to prove that the suit was prosecuted by an attorney of the court for the benefit of individuals, without the knowledge or permission of the attorney-general of the state, as required by sections 10 and 11 of title 5, c. 8, pt. 1, Rev. St. (1 Rev. St. p. 180). This was ruled out, and on appeal the ruling was held to be correct, the court saying that “the defendant must avail himself of such an objection on motion to set aside the proceedings. The question_is one of practice, not of title or jurisdiction. For the purposes of the trial, the court should presume that the suit had been regularly commenced.” An irregularity in the mode of commencing a suit cannot be taken advantage of at the trial. Daniels v. Patterson, 3 N. Y. 47. The remedy by motion was employed in Commissioners of Excise v. Purdy, 36 Barb. 266, and Sutter v. Fauble, 25 Hun, 195. When a party appears by attorney, a retainer will, as a general rule, be presumed. Hamilton v. Wright, 87 N. Y. 502. It is not claimed that section 1962 of the Code applies to this case. Here special provision is made for the manner of the enforcement of the penalties under the agricultural law. A particular department is charged with the duty of executing that law. Section 2 of the act.

The defendant relies on the case of People v. Belknap, 58 Hun, 241; 34 St. Rep. 239. That was an action to recover penalties given by sections 23 and 24 of the game law of 1879 (Laws 1879, c. 534). The summons and complaint were not signed by any district attorney, and there was no allegation or claim that the action had been commenced under the direction of any fish or game protector or other officer. It was held that the action was not maintainable and a judgment for penalties was reversed. In that case, unlike the present one, the question of capacity of plaintiff to sue-was raised by the answer. It is also to be observed that • the sections under which in that case the penalties were claimed provided simply that the party offending “shall be liable” to a certain penalty, without stating to whom. By other provisions of that or subsequent acts the penalties could be sued for by an)»- person in his own name, or by the district attorney of the county in the name of the people, either on his own motion or by the direction of a game protector; and in certain cases the game protector could employ other counsel to commence suits in the name of the people. In the present case, the statute in terms gives the penalty or forfeiture to the people, and an action is not authorized in the name of any one else. We think that the Belknap case is materially different from the present one, and should not be deemed to be controlling in this case. It was not necessary for the plaintiff, in stating the facts constituting its cause of action, to state that its agent had authorized the bringing of the suit. If, for any reason, the plaintiff had not capacity to sue, the defendant waived the objection by not taking it by answer or demurrer. If the plaintiff’s attorney had no right to appear for the plaintiff, the question should have been raised before the trial, within the principle of the case of People v. Denison, supra. We think that the motion for a nonsuit should not have been granted.

Judgment reversed on the exceptions, and a new trial ordered with costs to abide the event ■

All concur.


source: Caselaw Access Project

author: Martin, J.

license: Public Domain

text:
    John D. Babcock et al., Resp’ts, v. William J. Kuntzsch, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 1895.)

    1. Affidavit—Amendment.
    The omission of the venue from an affidavit does not invalidate the oath, or render the affidavit a nullity, when it is shown that it was duly administered by a proper officer within his jurisdiction, and it may be supplied by amendment.
    2. Same.
    The omission of the letters “ss ” from the venue is immaterial.
    St. Rep , Yol. LXY. 106

      Appeal from an order denying a motion to dismiss and vacate ■replevin proceedings.

      Costello & Welch, for app’lt; Gill & Stilwell, for resp’ts.
   Martin, J.

This is an appeal from an order made at the Onondaga special term, September 22, 1894, denying the defendant’s .■motion to dismiss and vacate the replevin proceedings instituted herein by the plaintiffs, and amending the venue of the affidavit upon which the requisition was based. The principal contention ■of the appellant is that the affidavit thus used was a nullity, because the venue therein did not contain the words “ Oity of Syracuse,” and the letters “ ss.,” and that the court had no power •or jurisdiction to amend the affidavit by inserting them. Upon the hearing of this motion it appeared by the affidavit of the commissioner of deeds before whom the affidavit in the replevin pro■ceedings was taken that he was a duly qualified commissioner of deeds for the city of Syracuse; that the affidavit in replevin was subscribed and sworn to by the affiant before him on the day" mentioned therein in the city of Syracuse, and within his jurisdiction as such commissioner of deeds. On the hearing of the motion the court denied the defendant’s application, and 'Ordered the ■affidavit amended.

The weight of authority in this state seems to be to the effect that the venue of an affidavit is prima fade evidence of the place where it was sworn to, and, in the absence of a venue or statement in the jurat as to where it was taken, it. would contain no evidence that it was sworn to within the jurisdiction of the officer administering the oath, and, without evidence that it was taken by a proper officer, within his jurisdiction, would be regarded as a nullity, unless the presumption would be that it was taken within his jurisdiction. But the omission does not invalidate the oath, •or render the affidavit a nullity, when it is shown, as in this case, that it was duly administered by a proper officer within his jurisdiction, and the omission of the venue may be supplied by amendment. Smith v. Collier, 3 St. Rep. 172; People v. Stowell, 9 Abb. N. C. 456 ; Mosher v. Heydrick, 30 How. Pr. 161, 171: People ex rel. Morganthau v. Cady, 105 N. Y. 299, 308; 7 St. Rep. 505; Saril v. Payne, 1 N. Y. Supp. 15; People ex rel. Osborne v. County Canvassers, 20 id. 329, 330. “ The omission of the letters 1 ss.’ from the venue is immaterial.” 1 Am. & Eng. Enc. Law, 311 •citing Smith v. Richardson, 1 Utah, 194. ' “ Technically speaking, an affidavit should not be entitled in a cause before the action is •commenced, but for convenience in referring to the cause, and ■connecting the application with the subsequent proceedings in the action, the strict rule of practice is frequently disregarded, and the title of the action given in the affidavit. A formal error of this nature will, as a rule, be disregarded by the court.” 1 Wait, Pr. ■841, citing Pindar v. Black, 4 How. Pr. 95; Bank v. Lumley, 28 id. 397. Section 723 of the Code of Civil Procedure requires the •court, in every stage of an action, to disregard an error or defect in the pleadings or other proceedings, which does hot affect the ■■substantial rights of the adverse party. We are of the opinion that the court was justified in granting the order appealed from, and that it should be affirmed, with costs.

Order affirmed, with $10 costs and disbursements.

All concur.


author: Mayham, P. J.

text:
    Peter V. P. Hewlett et al., App’lts, v. Saratoga Carlsbad Spring Company et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed February 26, 1895.)

    1. Evidence—Value.
    A witness, who is shown to be acquainted with the value of similar property in the vicinity, is competent to testify to the value of property.
    3. Same.
    In an action to rescind a contract on the ground of fraud, it is competent for the vendor to prove that the property purchased is worth as much or more than the vendees paid for it, in order to show that they have suffered no loss by the contract.
    Appeal from a judgment, dismissing the complaint on the merits.

      Dill, Seymour & Kellogg (Frederick R. Kellogg and J. W. Houghton, of counsel), for app’lts; James W. Verbeck (Edgar T. Brackett, of counsel), for resp’ts.
   Mayham, P. J.

The plaintiffs brought this action to rescind an alleged contract with the defendant Carragan, under which the plaintiffs claim to have acquired 125 shares of the stock of the Saratoga Carlsbad Spring Company, and to compel the surrender ■of certain promissory notes given by the plaintiffs on such alleged purchase; to enforce cancellation by the corporation of the names ■of the plaintiffs as stockholders thereof; and to recover money paid to the defendant Carragan on account of the alleged sale of such stock,—on the ground of alleged fraudulent representation by Carragan, on the sale of such stock, as to the amount of the earnings of such corporation during three years previous to December, 1891. The defense set up a denial of the fraudulent representations by Carragan, and of the sale of stock by him, and Carragan alleged that the only interest he had in the contract was the sale of his farm to the company. The case was heard and disposed of by the trial judge as an equity cause, who dismissed the ■complaint on the ground “ that on the whole evidence the plaintiffs have failed to establish any right to any relief against the defendants, or either of them.”

This trial proceeds under the provisions of chapter 688 of the Laws of 1894, which dispenses with proposed findings of fact and conclusions of law, and leaves it in the discretion of the judge whether he will state separately the facts found, and his conclusions of law, or state concisely the grounds upon which the issues have been decided, and the learned trial judge adopted the latter method. The contention of the plaintiffs on the trial was that they purchased this stock of the defendant Carrigan, and were induced to make such purchase upon the false and fraudulent representations of such defendants that the stock had, previous to the time of the purchase, produced 10 per cent net profit on the amount of capital. The defendants contended that they made no such representations, and also deny that they sold'any stock to the plaintiffs; insisting that the stock purchased by the plaintiffs belonged to, and was purchased by them of, one Duncan Yail, who, before his sale to the plaintiffs, was the owner of one-half of -the entire stock, the other half of the same being owned by the defendants Emmett Carragan, William H. Carragan, and Frank Carragan. Two questions pf fact therefore became the principal points of controversy: (1) Did the plaintiffs purchase this stock of the defendants Carragan ? (2) Were the plaintiffs induced to purchase the stock by the false and fraudulent representations of the defendants as to its previous productiveness?

While the case contains some evidence that the dealings of the parties relating to, and leading up to, the sale of this stock to the plaintiffs, were between the Carragans and plaintiffs, there is abundant evidence in the Case to uphold a finding by the trial court that the stock transferred to the plaintiffs was the stock of Yail. His scrip was transferred by him to the plaintiffs, and the part of the cash consideration paid by them at the time of the sale was paid to him ; and, while it does not appear that the case turned upon that point, yet, if it had, this court could not, upon the evidence in this case, reverse the judgment for that reason. It was a disputed question of fact, for the trial court, whose determination under the evidence must be deemed conclusive.

But if we assume that the court found that this stock was owned by the defendants Carragan, and sold by them to the plaintiffs, then it becomes a pertinent inquiry, did the plaintiffs, by their evidence on the trial, prove such false and fraudulent representations by the defendants Carragan, as to its past productiveness as to vitiate the contract, and entitle the plaintiffs to the relief sought ? It is elementary law that fraud vitiates all contracts tainted or affected by it. It is also equally true that fraudulent and false representations as to the quality of a chattel, known by the vendor- to be false at the time of the representation, where such representation is believed by the purchaser to-be true, and relied upon by him, and inducing the purchase, by which he is injured or defrauded, constiture good grounds for equitable interference, and for setting aside the contract. But in such case the party asserting the fraud is charged with the burden of proving it Whether or not the Carragans were guilty of false and fraudulent representations in this case was a question of fact, to° be found by the trial court from the evidence. The evidence of the plaintiffs tends to prove that the Carragans, while negotiating the sale of this stock, stated positively that the stock had, up to about the time of the sale, produced ten per cent annual profit on the whole amount of the capital stock. This was-met by the testimony of the defendants that no such representations had been made. It must, for the purpose of this appeal, be held that the trial court found for the defendants on this disputed question of fact, or at least the plaintiffs had failed affirmatively to establish, upon the whole proof, the fraud charged. Fraud must be proved, and cannot, in the absence oi proof, be presumed; and where, as in this case, the evidence is conflicting, it is the peculiar province of the trial court to settle such conflict, and the appellate court will not, on an evenly balanced case upon the proof, interfere to disturb its findings. The determination of the court being in favor of the defendants, we must, it would seem, assume that it had found against the plaintiffs upon one or both of the above questions of fact, a finding for the defendants in either of which would prevent a recovery by the plaintiff. But it is insisted on the part of the plaintiff that there was error committed by the court in the receipt and rejection of evidence on the trial, for which the judgment should be reversed.

The proof as to the value of the property sold was objected to on two grounds: First, that the witness was not shown compe-

tent to give an opinion; second, that the alleged recommendation being as to the productiveness of the property, and not to its value, it was error to prove the value.

As to the first objection, we think it was properly overruled. The witness upon that subject was shown to be acquainted with the value of similar property in the vicinity of the property in question, binder such conditions, the witness may testify to the value of property.

As to the second objection, as we have seen,'the court has found against the plaintiffs on the main issue, and therefore rendered unimportant the question of value; but, even if that question is open, it does not follow that the proof of the actual value of the premises is incompetent, as bearing upon the question of the net profits for the use of the same. It was clearly competent upon the question of the Tight of equitable relief, for, if the plaintiffs had not suffered loss by the alleged fraud, equity would not relieve them from their contract. Before a party can be relieved from his contract, on account of fraud, the rule seems to be that he—

“ Must suffer some pecuniary loss or injury as the natural consequence of the conduct induced by the misrepresentation. In short, the representation must be so material that its falsity renders it unconscientious in the person making it to enforce the agreement or other transaction which it has caused. Fraud without resulting pecuniary damage is not a ground for the exercise of remedial jurisdiction.” Pom. Eq. Jur. (2d ed.) section 898.

The same doctrine was held in Aron v. De Castro, 36 St. Rep. 716. Van Brunt, J., says:

“ It is the well-settled rule that it is the very essence of the action of fraud and deceit that the same should be accompanied by damage”; citing Deobold v. Opperman, 111 N. Y. 531; 20 St. Rep. 81. “ Fraud without damage, or damage without fraud, will not sustain an action” ; citing Taylor v. Guest, 58 N. Y. 266.

Upon the principle enunciated in the cases above cited, it was clearly competent to prove that the property purchased by the plaintiffs was worth as much or more than the plaintiffs paid for it. At the time this evidence was offered, the question as to-whether or not a fraud would be established was open, and it was-competent for the defendants to prove that the plaintiffs had. suffered no loss by the contract.

We have examined the other questions and exceptions taken by the plaintiffs to the receipt and rejection of evidence on the trial, and see no error for which the judgment should be reversed.

Judgment affirmed, with costs.

Putnam, J., concurs.


author: Parker, J.

text:
    Newton E. Whiteside et al., App’lts, v. Noyac Cottage Association, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed February 15, 1895.)

    Injunction—Bond—Damages.
    Counsel fees, incurred on the trial of the issues in an action, are not allowable upon an assessment of damages against the surety in an undertaking unless they were incurred solely or principally in consequence of' the injunction.
    ■Appeal from an order, in so far as it confirms the report of the referee in awarding defendant damages by reason of an injunction obtained by plaintiffs pendente lite.

      Alfred B. Cruikshank, for app’lts ; William C. Reddy, for resp’t.
   Parker, J.

The plaintiffs, who were lot-owning members of the defendant, the Noyac Cottage Association, feeling aggrieved because of an assessment made upon the lots purchased by them of the association to defray certain expenses incurred in the erection of a clubhouse, bowling alley, and billiard annex, and in the-purchase of horses and carriages, commenced a suit, the complaint in which concluded with a prayer for relief, as follows:

“Wherefore the plaintiffs pray for the equitable interference of this court, and for judgment directing said defendant, through its-board of managers, to rescind its action declaring that the rights, titles, and interests of said plaintiffs shall cease and revert to said defendant on December 28, 1891, unless plaintiffs show cause to the contrary, and directing that said assessment, so far as the same was voted and levied to pay for the permanent improvements aforesaid, shall be null and void, and forbidding said defendant and its board of managers from taking any action at said meeting-on December 28, 1891, or at any other meeting, to cause the rightss titles, and interests of said plaintiffs to cease and determine, or to revert to said association defendant, together with the costs of this action; and the plaintiffs further pray for such other or further relief as to the court shall seem just.”

Thereafter, upon notice of motion regularly given, and upon a full hearing, an inj unction pendente lite was granted, the plaintiffs giving an undertaking in the penal sum of $2,000, with John Parr as surety, conditioned for the payment of “ such damages, not exceeding the before-mentioned sum, as it may sustain by reason of the injunction, if the court finally decides that the-plaintiff was not entitled thereto.” No further or other action was taken in respect to the injunction until the trial of-the suit, which resulted in a judgment dismissing the complaint. From this judgment successive appeals were taken to the general term and the court of appeals, resulting in its affirmance. The plaintiffs promptly paid the costs awarded against them by the judgments of the several courts, after which an order of reference was-made to assess the damages incurred by the defendant by reason of the granting of the injunction.

The referee reported that the defendant was entitled to recover of the plaintiffs and the surety on the undertaking:

(1) Its expense for counsel fee, exclusive of taxable costs incurred in consequence of said injunction, to and including the trial at September term........... $350 00-
(2) For appeal to the general term................. 75 00
(3) For appeal to the court of appeals............... 75 00
(4) For counsel fees on this reference................ 150 00
(5) For referee’s fees on this reference............... 102 00
(6) For stenographer’s fees........................ 46 15
Making a total of............................ $798 15-

It will be observed that the referee does not find that the defendant sustained any damage whatever, by reason of the granting of the injunction, other than for counsel fees paid in addition to taxable costs. The special term disallowed the items for counsel fees for the general term and court of appeals, and confirmed the report in other respects. From the order of the special term the plaintiffs and the surety appeal, and it is insisted on their behalf that they were not chargeable in law with the counsel fees paid by the defendant, nor with any part thereof, and, as it was not found that the defendant sustained other damages by reason of the granting of the injunction, the defendant could not saddle them with the expense of a reference.

If the first proposition be true, the last follows; for if a defendant sustains no damage whatever, because of the granting of an injunction, he is not entitled to have a referee appointed to r’eport that fact at the expense of the surety. Sweet v. Mowry, 71 Hun, 381—386; 55 St. Rep. 51; Randall v. Carpenter, 88 N. Y. 293-298. The inquiry, then, is whether the award of $850 for counsel fees was authorized. No motion was ever made to vacate the-injunction. It was granted, as we have already said, upon notice, and the counsel fees paid by the defendant for opposing the application for the injunction do not constitute damages occasioned to him by the injunction granted; and it is to damages resulting to him because of the granting of the injunction that the surety agrees to respond. Efforts have been made in the past to charge sureties similarly situated with the sums paid to counsel for opposing the granting of an injunction, against the harmful effects of which, when granted, the sureties have undertaken to indemnify a defendant, but uniformly such efforts have been unsuccessful. Sweet v. Mowry, supra; Randall v. Carpenter, supra; Allen v. Brown, 5 Lans. 511; Troxell v. Haynes, 16 Abb. Pr. (N.. S.) 1. 'The award of $350, according to the finding of the referee, was for counsel fees, exclusive of taxable costs, incurred in consequence of said injunction, to and including the trial. After the injunction was granted, no motion mas made or other proceeding had in the action prior to the trial, which resulted in a judgment for the defendant; and the compensation allowed by the referee was necessarily for the trial and the preparation therefor. This is sought to be justified on • the ground that the defendant was forced to prepare for and try the cause in order to get rid of the injunction. But this claim does not state the true situation, for, while it is doubtless true that defendant could not have procured ii vacation of the injunction without a trial, it was obliged to prepare for and try the cause in any event. The ground of action stated in the complaint was the making of certain alleged illegal assessments. The object of the suit was to get rid óf them by a judicial determination that they were ultra vires, and the injunction pendente lite against their enforcement was merely collateral. The suit could, and doubtless would, have proceeded to trial had the application for injunction been denied. Indeed, the plaintiffs appealed to the general term, and again to the court of appeals, after the injunction had fallen, because of the judgment dismissing the complaint. It is clear, therefore, that the counsel fees paid by the defendant were necessitated, not by the injunction, but by the suit which it was compelled to defend. It seems to be established by the authorities that counsel fees paid under such circumstances cannot be recovered of the surety. Allen v. Brown, supra ; Troxell v. Haynes, supra ; Newton v. Russell, 87 N. Y. 527; Randall v. Carpenter, 88 id. 293. In Newton v. Russell, the complaint alleged a right in the plaintiff to maintain - a boom across Gf. river, and attach it to the defendant’s premises, and an interference with such right, which it prayed to have adjudged. Upon notice an injunction was granted pending the action. The trial resulted in a judgment dismissing the complaint. Thereafter proceedings were had to assess the damages sustained by the defendant because of the injunction, and an award was made' which incltided as damages $450 paid for counsel fees in the preparation and trial of the action. The award of the referee was sustained by the special and general terms, but the court of appeals, which had presented to it the authorities cited by the respondent here, and discussed most of them, held that the award was in such respect erroneous, and reversed the order, stating the rule to be that counsel fees incurred on the trial of the issues in an action are not allowable upon an assessment of damages against the surety in an undertaking, unless they were incurred solely or principally in consequence of the injunction. As the authorities mainly relied upon by this respondent as establishing a different rule were considered by the court, we shall refrain from discussing them. It is sufficient to say that there were exceptional circumstances in each case whiqh led to a different result than in Newton v. Russell, but did not effect a change in the rule many times asserted, and merely reiterated in that case. It follows that the report of the referee, instead of being confirmed in part, should have been set aside. But as there was no evidence presented to the referee tending to show that damages were sustained by the ■defendant by reason of the injunction, other than that for which the referee erroneously made an award, the right should be reserved to the defendant to make application for the appointment of another referee to assess its damages, if it should be so advised. The order should be reversed, with $10 costs and printing disbursements, and the motion to confirm the report of the referee denied, with $10 costs, with leave to apply for the appointment of another referee to make an assessment upon payment of costs, etc., upon this appeal, and the costs of denial of motion.

All concur.


text:
    Yellott D. Dechert, as Receiver, etc., App’lt and Resp’t, v. Municipal Electric Light Company, App’lt and Resp’t. (Two cases.)

      (Supreme Court, General Term, First Department,

      Filed February 15, 1895.)

    Pleading—Answer.
    Where the subject-matter and terms of two contracts are different, and neither contains any reference to the other, the pleading must contain, in order that the agreements may be read and construed together as one in.stiument, allegations requiring such inference.
    Appeal from an interlocutory judgment, entered on a decision overruling a demurrer to one paragraph, and sustaining it as to other paragraphs, of the answer.

      Louis Marshall, for pl’ff; Robert Payne, for def't.
   Parker, J.

The order appealed from, in so far as it overrules the demurrer to the alleged defense contained in paragraph 6 of the answer, must be reversed. Paragraph 6 reads as follows:

“(6) The defendant (alleging as hereinbefore alleged), for a second, further, and separate defense, alleges and avers that the placing of electrical apparatus by defendant in the premises occupied by said Joseph Ryan, and referred to in the complaint, and all the work done by defendant in and about the erection of said ■equipment, and the subsequent furnishing to said Joseph Ryan of ■electrical current, were done at the special instance of said Ryan, and upon and under the terms of certain written agreements, copies of which are hereto annexed, marked Exhibits ;A’ and ‘B,’ respectively, and same are hereby made a part of this amended answer; that immediátely after the installation, of said electrical equipment, and long before the alleged loss and damage complained of, the New York Board of Fire Underwriters did duly approve the said wiring and electrical equipments upon the premises of said Ryan, and duly gave written certificates of such approval, of all of which said Ryan had due notice.”

By the agreement marked “Exhibit A,” the defendant agreed to supply an electric current to Ryan upon his premises, and he agreed to use such electric current, subject to the terms “printed on the back hereof, which are hereby agreed to.” The printed terms upon the back of the contract, thus referred to, consisted of nine provisions, of the eighth of which reads as follows :

“The company is hereby released from all claims for damages-result'ng from the use of electric current, when the wiring and electrical equipments on the premises of the consumer shall have been approved by the New York Board of Fire Underwriters or other proper authorities.”

By the other agreement the defendant agreed to wire Eyan’s premises for 275 sixteen candle power lamps, located and distributed about the building according to the specifications. The agreements bear the same date, but neither of them contain any reference to the other. The contention of the demurrant is that the defendant so unskillfully and negligently did the work called for by the contract marked “Exhibit B” that the premises were-set on fire, and completely destroyed, together with the stock them belonging to Joseph Eyan, and that the eighth provision, quoted-above as a part of the terms printed on the back of Exhibit A, cannot avail the defendant, because it is an entirely different contract. The'ground on which the special term based its decision overruling the demurrer was that the writings Exhibits A and B constitute parts of one transaction, and should therefore be read and construed together as forming parts of one agreement. But this position- is confronted with a difficulty which does not seem to have been brought to the attention of the special term. The subject-matter and terms of the contract being different and neither containing any reference to the other, it was necessary that the añswer should contain allegations requiring an inference that the agreements sho°uld be read and construed together as one instrument. This the pleader did not do. On the contrary, the only inference presumable from the .language employed is that there were two distinct agreements, instead of two separate writings constituting one agreement The demurrer to the counterclaims set up in the seventh paragraph of the answer, was, we think, rightly sustained.

So much of the interlocutory judgment as overrules the demurrer to the paragraph designated “First” should be reversed, and in. all other respects it should be affirmed, with leave to the defendant to amend its answer within twenty days, on payment of the costs of the action; neither party to have costs of this appeal.

All concur.


author: Follett, J.

text:
    Manhattan Railway Company, Resp’t, v. August Klipstein et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed February 15, 1895.)

    Costs—Extra allowance—Second application.
    Upon the denial of a motion for an extra allowance, a subsequent motion therefor cannot be made without leave of court.
    Appeal from an order, denying a motion for an additional allowance of costs.

      John E. Parsons, for app’lts; Edward C. James, for resp’t.
   Follett, J.

In January, 1893, the plaintiff began this proceeding under chapter 23 of the Code of Civil Procedure to acquire certain street easements for the use of the plaintiff, without having previously made a written offer to purchase the property, sought to be acquired, at a specific price. The defendants interposed answers denying certain allegations in the petition, and setting up new matters in defense, and the issues joined were, by an order, referred to a referee to hear and determine. The defendants appeared before the referee, and objected to proceeding before him, on the ground that he was disqualified from acting as a referee for reasons then stated. The referee overruled the objections, and the defendants withdrew, but the proofs of the plaintiff were taken, and thereafter the referee reported in favor of the plaintiff upon the issues referred to him. The defendants moved to set aside the report, and the plaintiff for an order appointing commissioners. The- defendants’ motion was denied, and the plaintiff’s granted. In August, 1893, the commissioners awarded the defendants Murphy and McCormack $62,500, and the defendant Klipstein $9,250. The defendants moved for a confirmation of the report of the ¿ommissioners, and for an additional allowance of costs, which was decided January 17, 1894, the report being confirmed and an additional allowance denied. The court, on deciding the motion, said:

“The awards in this proceeding, to my mind, are extremely liberal, under the proofs. I cannot adjudge them excessive, under the circumstances, the commissioners having facilities for weighing evidence superior to those of the court. An extra allowance of $1,800 was granted in the equity suit None should be given here. The motion to confirm the report is granted, and for an extra allowance denied. Orders to be settled on two days’ notice.”

Afterwards the defendants made a second motion for an additional allowance, which came on to be heard November 21, 1894, and an order was entered denying the motion upon the ground that a previous motion for the same relief was made by the defendants, and denied January 17, 1894. From the order of November 21, 1894, the defendants appealed, but they have not appealed from the order entered on the decision of January 17, 1894. The second motion, having been made without leave of the court, was irregular, was rightly denied, and the order entered thereon should be affirmed, with costs.

Van Brunt, P. J., and O’Brien, J., concur in the result,


author: Per Curiam.

text:
    Lillie J. Earl, Resp’t, v. George H. Robinson, as Trustee, etc., et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed February 15, 1895.)

    Injunction —Yac ation .
    An injunction pendente lite against the foreclosure cf 8 mortgage will not be vacated so as to enable the defendant to bring an action to foreclose it, where he can obtain all the relief, to which he is entitled, on proper allegations in his answer m the pending action.

      Appeal from an order, denying a motion, after supplemental answer, to vacate an injunction pendente lile.

      George M. Pinney, Jr., for app’lts; A. J. Dittenhoefer, for resp’t.
   Per Curiam.

Many considerations urged by the appellants on the former appeal are again presented, and require no further comment. The question now to be considered is the change in the status of the parties effected by the retaking and sale of the property of the New Netherlands Hotel, and the loss or deficiency resulting, to secure which it is claimed the mortgage on the Normandie was given. In this action plaintiff, among the other grounds of reliefj asks to have the Normandie mortgage declared invalid, and for an injunction to restrain the foreclosure thereof. The fact that resort had not been first had to the property in the New Netherlands was one of the reasons for enjoining the defendants pendente lite. This, however, was not the sole ground. At the time defendants threatened to enforce the collateral mortgage on the property in the Normandie no default had occurred ; and this, joined with other facts appearing, and notably the grounds urged against the validity of the mortgage, justified an injunction pendente lite upon condition of the giving of a bond fully to protect defendants, which was thereafter given. It was stated upon the argument, and not denied, that this case is at issue and will soon be reached for trial. Notwithstanding, it is insisted by defendants that they should be permitted to foreclose the Normandie mortgage by action. An independent action, however, is unnecessary, as defendants, upon proper allegations in their answer in this action, if successful in maintaining the validity of that mortgage and the right to enforce it, would obtain more speedily all the relief that could be obtained in a new suit now to be brought. If the supplemental answer is not sufficient, upon a proper showing, and upon such terms as are just, the court at special term would no doubt permit the necessary amendments. This, we think, upon the facts appearing, would have been the better course, because affording defendants, if successful, all the relief that could be obtained in an independent action in which the plaintiff would interpose, by way of defense, the very facts upon which she seeks in this action to have the mortgage declared invalid ; and thus there would be two actions pending between the same parties in respect to the right to foreclose the same mortgage. A court of equity never favors multiplicity of suits. We think the order is .right, and should be affirmed, with $10 costs and disbursements.


text:
    William Z. Larned et al., App’lts, v. Daniel E. Donavan et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 15, 1895.)

    Mortgages—Assignment—Notice.
    The record of an assignment of a mortgage is notice to a purchaser of the equity of redemption. A payment in such case, made to the mortgage subsequent to the assignment and the conveyance to the mortgagor is not good as against the assignee.

      Appeal from an order dismissing the complaint.
    This action was brought March 31, 1892, to cancel as a cloud on title a mortgage given to secure the payment of $1,130, executed January 11, 1886, by David B. Algie to Patrick Golding, and recorded February 10, 1886. \On the 6th of August, 1885, the plaintiffs were the owners in fee of six vacant lots situate on the southeast corner of Ninth avenue and Sixty-Eighth street, in this city, which, in consideration of $75,000, they conveyed to David B. Algie by a deed dated that day, which was duly recorded August 10, 1885. To secure the payment of $74,000 of the purchase price, the grantee executed, August 6, 1885, to the grantors a mortgage on said premises, which was recorded August 101, 1885. Concurrently with the execution of the deed and mortgage, a contract was executed between David B. Algie and the plaintiffs, in which it was recited that Algie was about to erect certain described buildings on said lots, to facilitate which said Algie desired a loan of $51,000 on a bond executed by himself and Peter Algie, secured by a mortgage on said premises, which sum was to be advanced by the mortgagees from time to time as the work on the buildings progressed. Algie made contracts with various persons' for work and materials for the buildings, and began to erect them, the mortgagees advancing various sums at different times to enable him to carry on the work. On the 11th of January, 1886, a contract was entered into between David B. Algie and Patrick Golding, by which the latter agreed to furnish bluestone for the buildings at the agreed price of $1,130, to secure the payment of which Algie on that date gave a mortgage on one of said lots, which was recorded February 10, 1886. The mortgage, by its terms was subject to the two prior mortgages held by the plaintiffs, and contained this recital: “This grant is intended as a security for the payment of said consideration sum of one thousand one hundred and thirty dollars, with interest from March 10, 1886, which is an agreed indebtedness of the mortgagor to be payable four months from the date hereof, which payment, if duly made, will render this instrument or conveyance void.” May 4, 1886, Golding, being indebted to Daniel E. Donavan in $2,400, assigned this mortgage to him in part payment of the debt, by a written assignment duly recorded May 7, 1886. In March, 1886, Algie failed, and became unable to complete the buildings, at. which time the plaintiffs had advanced $17,000 on the mortgage given to secure $51,000. On June 15, 1886, Algie reconveyed the lots to the plaintiffs, by a deed recorded June 26, 1886 ; they entering into a written contract with Algie, and the persons to whom he was indebted for materials, that they would complete the buildings, sell them, and, after retaining the amount due on the purchase-money mortgage of $74,000, and the $17,000 due on the second or bnilding mortgage, and the cost of completing the buildings, they, would pay the amount due said persons who had sold materials to Algie, or, in case there was insufficient to pay them in full, that they should be paid pro rata. The amounts due said persons were agreed on by the contracting parties.„ Patrick Golding, among others, executed this contract, and the amount due him was fixed at $574.41; and May 14,1886, he executed a satisfaction of the mortgage given to him for $1,180, which satisfaction has not been recorded. Prior to the commencement of this action, a demand was made on Daniel E. Donavan, the assignee of the Golding mortgage, that he satisfy the same, which he refused to do, and this action was brought to compel such satisfaction.

      W. P. Knapp, for app’lts; W. W. Westervelt, for resp’ts.
   Follett, J.

The mortgage which the plaintiffs seek to set aside was executed January 11, 1886, was recorded February 10, 1886,' at which dates Algie, the mortgagor, owned the fee of the mortgaged premises. May 4, 1886, Golding, the mortgagee, assigned the mortgage to Donavan in part payment of a debt due from Golding to Donavan, and the assignment was recorded May 7, 1886. When the assignment was executed and recorded, Algie was still the owner of the fee, and Golding was the owner of the mortgage, and had the right to assign it. The court found, as a fact, that Donavan took the assignment in part payment of a debt, and without notice of the transactions between Algie, his creditors, and the plaintiffs, and that Golding subsequently executed a satisfaction without the knowledge or authority of Donavan. Subsequent to Donavan’s acquiring title to the mortgage, and on the 15th of June, 1886, the plaintiffs received a conveyance of the mortgaged premises. They had actual notice of the existence of the mortgage, and the assignment' of it is a conveyance within the recording act, and the record was notice to the plaintiffs, who were subsequent purchasers of the mortgaged premises, that Donavan was the owner of the mortgage. A mortgagee is a “purchaser,” within the recording act, and so is an assignee of the mortgage (1 Eev. St. p. 762, § 37); and a mortgage is a “conveyance,” within the act, and so is an assignment of a mortgage (1 Eev. St. p. 762, § 38). The recording act is for the protection of “purchasers” by deed, mortgage, or by assignment of a mortgage, in good faith and for value, from unknown conveyances, rights and equities arising under them, and connected with the title, but not for the protection" of rights arising out of the consideration of the conveyances. The evidence given in behalf of the plaintiffs shows that at the time Golding assigned this mortgage it was a lien on the premises for $574.41, with interest from March 10, 1886, and his assignee, Donavan, acquired all the rights of the mortgagee. The plaintiffs, being subsequent purchasers of the premises from Algie, took them subject to the rights of Donavan, the' assignee of the ' mortgage, who acquired a perfect title to it, and the plaintiffs failed to establish a right to have it canceled of record as a cloud on their title. If Algie had paid the mortgage, May 14, 1886, in good faith ánd without notice of its assignment to Donavan, and had taken a satisfaction, the case would have been within section 41, 1 Eev. St. p. 763, which provides:

“The recording of an assignment of a mortgage shall not be deemed in itself notice of such assignment to a mortgagor, his heirs or personal representatives, so as to invalidate any payment made by them or either of them to the mortgagee. ”

The plaintiffs did. not prove that they had paid (voiding or any one any part of the $574.41, either before or subsequent to the satisfaction; but, had they proved payments made to the mortgagee subsequent to the assignment and the date when the plaintiffs acquired the fee, such payments would not have been good as against Donavan. Brewster v. Carnes, 103 N. Y. 556; 4 St. Rep. 264. The judgment should be affirmed, with costs.

All concur.


author: Giegerich, J.

text:
    Jennie Walsh, Pl’ff, v. National Broadway Bank, Def't.

      (Supreme Court, New York Special Term,

      Filed February, 1895.)

    1. Parties—Action at law.
    In an action at law, where the plaintiff seeks nothing hut a money judgment, he cannot be compelled to bring in any other parties than those he may choose to summon.
    2. Bank—Deposit—Principal and aoent.
    When the debt created by a deposit belongs to the principal instead of the agent, who made it in his own name, the bank, upon notice of the facts, must recognize the actual, rather than the nominal, depositor.
    3. Same.
    In such case, it is immaterial whether the bank knew of the trust when it received the deposit.
    Demurrer to the complaint.

      Richard O'Gorman, Jr., for pl’ff; W. C. Beecher, for def’t.
   Giegerich, J.

The complaint alleges that the plaintiff, after having qualified as trustee under the last will and testament of Joseph P. Quin, deceased, employed a certain firm, attorneys and counselors at law, as her legal advisers in the management and care of said trust estate, and thereafter delivered to one of her attorneys her check to her own order for $2,000, indorsed by her, with instructions to invest said amount in a bond and mortgage on real estate; that such attorney, in violation of his duty to the plaintiff, deposited said check with the defendant to his own personal account; that the defendant collected the amount of said check, and placed the same on its books to the credit of said attorney, and that of said amount a balance of $1,652.72 remains on deposit with the defendant; that the amount so deposited was part of the funds of the said trust; and that the plaintiff duly demanded payment of said sum of $1,652.72, but no part thereof has been paid. The defendant demurred to the complaint on the grounds—First, that it appears upon the face of the complaint that there is a defect of parties defendant, in the omission of the attorneys referred to; second, that it appears upon the face of the complaint that the same does not state facts sufficient to constitute a cause of action.

The disposition of the first ground of demurrer turns upon the question whether a complete determination of the controversy can be had without the presence of the attorneys in question. I do not perceive why it cannot. The relief sought is for a money judgment, and not for equitable relief. This is clearly a common-law action for money had and received. Roberts v. Ely, 113 N. Y. 128;. 22 St. Rep. 185. And it is well settled that in an action at law, where the plaintiff seeks nothing, but a money judgment, he cannot be compelled to bring in any other parties than those he may choose to summon. Hillman v. Hillman, 14 How. Pr. 456, 460; Chapman v. Forbes, 128 N. Y. 532, 538, 542; 34 St. Rep. 351, and citations. In Hilllman v. Hillman, Harris, J., who spoke for the-court, said:

“As a general rule, the plaintiff may choose for himself what persons he will make defendants. So far as it can, without prejudice to the rights of others, the court will determine the controversy between the párties before it, but when this cannot be done it will take measures to have the necessary parties brought in. It. is not often that a demurrer will lie for rhe non-joinder of a defendant.”

Section 452 of the Code of Civil Procedure, in part, prescribes;-

“The court may determine the controversy, as between the parties before it, when it can do so without prejudice to the rights of others, by saving their rights ; but where a complete determination of the controversy cannot be had without the presence of' other parties, the court must direct them to be brought in.

This section refers to parties in what, under the old practice,, would have been suits in equity; and it is apparent that it was-never intended to make it incumbent upon a plaintiff, in an action at law, to sue any other than the parties he should choose. Chapman v. Forbes, at page 538, 123 N. Y., and citations.

The meaning of the Code relative to “a complete determination, of the controversy” has been thus defined:

“Where there are persons, not parties, whose rights must be ascertained and settled before the rights of the parties to a suit can. be determined.” Chapman v. Forbes, supra, and citations.

The plaintiff alleges, and the defendant, by its demurrer admits, that the defendant received moneys from another, which belong to-the plaintiff, but which have not been paid, although demanded. It being thus admitted by the demurrer that the plaintiff is entitled, ex aequo et bona, to the whole of the recovery demanded, I fail to see how the presence in this action of the attorneys, or the legal' representatives of such of them who may have departed this life could alter or affect the result which must follow from this admission; consequently, the controversy can be completely determined, without the presence of any other person. The rule must be regarded as well established by frequent decisions of the courts in this state that, so long as money or property belonging to thé principal, or the proceeds thereof, may be traced and distinguished’ in the hands of the agent, or his representatives or assignees, the principal is entitled to recover it, unless it has been transferred for value, without notice. In other words, when the debt created by a deposit belongs to the principal, instead of the agent who made-it in his own name, the bank, upon notice of the facts, must recognize the actual, rather than the nominal, depositor. Van Allen v. American Nat. Bank, 52 N. Y. 1; Baker v. Bank, 100 id. 31;. Viets v. American Nat. Bank, 101 id. 563 ; O'Connor v. Mechanics' Bank, 124 id. 324, 332, 333 ; 36 St. Rep. 277 ; Holmes v. Gilman, 138 N. Y. 369 ; 52 St. Rep. 873. The case before us comes clearly within this principle. The plaintiff, by this action, seeks to recover only such a sum as remained on deposit with the defendant, after notice had been given to it of the plaintiff’s claim of title-thereto. The case, therefore, is free from hardship to the defendant, which, at most, will be required to repay to the plaintiff only such sum as it Would have been compelled to pay to her attorney at the present time if such notice had not been - given ; in other-words, payment to the principal will absolve the defendant from making payment to the agent.

It is immaterial whether the defendant knew of the trust when-it received the deposit in question. Church, C. J., in speaking for the court upon this subject in Van Allen v. American Nat. Bank, supra, at page 10, says:

“It was suggested on the argument that notice to the bank by the depositor was necessary, to protect the rights of the plaintiff,, but this is not so. The title of the plaintiff does not depend upon whether the bank knew he had a title or not. That rested upon other facts. A notice to the bank might have prevented any transfer or the creation of a lien by the depositor, or prevented the-bank from taking or acquiring such lien in good faith, but could not otherwise be necessary or important.”

And in Roberts v. Ely, supra, Andrews, J., who spoke for the court, at page 132, 113 N. Y., said:

“It is immaterial, also, whether the original possession of the money by the defendant was rightful or wrongful. It is sufficient that the duty exists on his part, created by the circumstances, to account for and pay it'over to the plaintiff.”

The demurrer contends that it only agreed to discharge its indebtedness by paying the check of the depositor, but the complaint, does not allege that such an agreement was made. If there was, it should be set up in the answer. But such an agreement would not be binding upon the plaintiff unless the same was sanctioned by her, or was subsequently ratified by her, with knowledge of the-facts. It was the duty of the defendant, upon notice of the facts, to recognize the plaintiff as the actual depositor. This, it manifestly appears from the complaint, the defendant refused to do. It follows from these views that both grounds of demurrer should be overruled, and that there should be judgment for the plaintiff, overruling the demurrer, with costs, with leave to the defendant to answer within twenty days, upon payment of costs.


author: Pryor, J.

text:
    Matilda Schoellkopf, Pl’ff, v. Jacob Ohmeis, Def't.

      (New York Common Pleas, Special Term,

      Filed February, 1895.)

    Judgment—Amendment.
    A judgment against a person, served by a wrong name, if he does not appear in the action, is a nullity and cannot be amended.

      Motion to amend the process and proceeding nunc pro tune by ■substitution of right name of party defendant.

      Howe & Hummel, for the motion; Edward Grosse, opposed.
   Pryor, J.

Served with a summons against Jacob Ohmeis, Joseph M. Ohmeis failed to appear in the action; and upon his default, and an inquisition of damages, judgment has been entered against Jacob Ohmeis. The plaintiff moves to amend the process and proceedings, nunc pro tune, by substituting the name Joseph M. Ohmeis for Jacob- Ohmeis. It is not disputed that Joseph M. Ohmeis is the person against whom it was intended to prosecute the action. The precise question in controversy, whether after judgment an amendment may be allowed so as to conform the process and proceedings to the real name of a party sued by a wrong denomination, and, though served, not appearing in the ■action, seems not to have been determined by any court of this state. In Tasker v. Wallace, 6 Daly, 364, it is not shown but that the -defendant entered appearance, and by all authorities an appear.-ance corrects the irregularity ; for if the defendant fail tb plead the misnomer he waives it, or if he pleads it he must give the true name, and thereupon an amendment is of course. It is the law -of this state that“service of summons upon a party by a wrong name does not give the court jurisdiction over his person, and his appearance cannot be compelled.” Farnham v. Hildreth, 32 Barb. 277, 279. By necessary consequence, if he do not appear„a judgment against him in such name is a nullity.' Moulton v. De ma Carty, 6 Bob. 470, 477 ; Waterbury v. Mather, 16 Wend. 611, 613; Griswold v. Sedgwick, 6 Cow. 456. In some jurisdictions the rule may be otherwise, Bank v. Jaggers, 31 Md. 38, but I am concluded hy our own adjudications. Joseph M. Ohmeis having never been in court, and so the judgment a nullity, there is nothing to amend. A thing void is a thing irreparable, and- no energy in the law suffices to make something of nothing. Again, Joseph M. Ohmeis, not being obliged to respond to the summons, was never in default, and the inquisition of damages was unauthorized as against Mm. Moreover, should the judgment be now validated, lie will be held to a liability he was not called upon to contest, and which he did not contest. Mo man can be bound by the result ■of a litigation, except by actual appeararfce or legal command to .appear. Comprehensive as is the scope of § 723 of the Code, it ■cannot embrace a case of which the court has not jurisdiction, nor make valid what is void.

Motion denied, with costs.


author: Osborne, J.

text:
    Robert Stoll, App’lt, v. Robert F. Reel et al., Resp’ts.

      (Brooklyn City Court, General Term,

      Filed February 25, 1895.)

    Estoppel—Affidavit.
    In making and delivery of an affidavit, that a bond was executed and delivered to the obligee “ for a good, valuable and full consideration, and there does not exist any counterclaim, set-off or defense whatever, in equity to or against said bond,” and the purchase of the bond in reliance thereon, constitute an estoppel which prevents the obligors from maintaining the defense of usury, where the purchaser paid full value, without notice of any defense thereto.
    Appeal from a judgment, dismissing the complaint.

      Frank D. Smaw and H. Huffman Browne, for app’lt; Chas. O. Grim, for Resp’ts.
   Osborne, J.

Plaintiff brought this action to foreclose a certain Pond and_ mortgage executed by the defendants to one Joshua V. Potter, and by him assigned to plaintiff. The complaint was dismissed at special term on the ground that the mortgage was void for usury. We think this judgment is wrong, and should be reversed. While there is no question but that the original transaction between the defendants and the mortgagee, Potter, was usurious, yet it appears from the testimony in the case that, at the time ■defendants executed and delivered the bond and mortgage in suit, they simultaneously signed and swore to an affidavit in which they severally deposed that the bond and mortgage in question ■executed by them “ was so executed and delivered to Joshua Y. Potter for a good, valuable, and full consideration, paid by said Potter, and there does not exist any counterclaim, set-off or defense whatever, in law or in equity, to or against said bond or said mortgage.” The plaintiff testified that, at the time of the assignment of the bond and mortgage in question to him, the above-mentioned affidavit of the defendants was exhibited to him; that he paid the full amount of the bond and mortgage, on its assignment to him, and that in making the purchase he relied on the statements made in the affidavit, believing them to be true; and that he had no notice of any defense to this action. Mo evidence was given to qualify or contradict this evidence of the plaintiff. We think that the making and delivery of this affidavit by the defendants, iind plaintiff’s purchase of the bond and mortgage in reliance thereon, constituted an estoppel which prevents the defendants from successfully maintaining the defense of usury in this action. The case of Weyh v. Boylan, 85 N. Y. 394, is full authority for the conclusion at which we have arrived. The facts in that case were very similar to those in the present case; and the court of appeals there held, without a dissenting voice, that such an instrument given under such circumstances estopped the mortgagors from availing themselves of the defense of usury. The affidavit made by the mortgagors, the defendants, could have been intended for no other purpose than to give currency to the bond and mortgage, as constituting a valid instrument. After it has been so used, and plaintiff having relied on the sworn statement of the mortgagors to that effect, it would be contrary to morals and good conscience .that the defendants—having, by their own act, induced the plaintiff to become the purchaser of the bond and mortgage — should .now be heard to set up the defense of usury thereto.

The learned counsel for the respondent, in making up his points :seems to have overlooked the fact that §§ 993 and 1022 of the ■Code of Civil Procedure have been materially amended since the ■decision of the cases cited by him; that §1023 has been entirely repealed; and that, therefore, those authorities are no longer in point.

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

Yah Wyck, J., concurs.


author: Hardin, P. J.

text:
    Herman F. Inderlied, App’lt, v. Nicholas Whaley, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed February, 1895.)

    Former adjudication—Injunction.
    A judgment, granting an injunction against the pollution of a stream, is-a bar to a subsequent action to recover damages resulting from acts committed prior to, or during the pendency of, the injunction action.
    Appeal from a judgment dismissing the complaint.
    Prior to April, 1886, the plaintiffs were the proprietors of a large manufactory of wood chemicals at Rock Rift, Delaware county, and had acquired the right to pond, and, by means o£ flumes and ditches, conveyed to their manufactory, for use therein, the waters of a stream known as “ Chace’s brook," which, is a small mountain stream, about two miles in length, and flows down a narrow valley, through lands owned by several different parties. In the fall of 1885 the defendant commenced, operating a steam sawmill upon the banks of said stream, above the pond of the plaintiffs, and from the defendant's sawmill the sawdust and debris ran into the waters of Chace brook, and ran down into plaintiffs’ pond, and thus into their factory, causing them damage. In the month of April, 1886, plaintiffs commenced an action on. the equity side of the court against defendant and another, alleging that the defendants were running sawdust into the stream,, causing them injury, and asked by way of relief, a temporary injunction, and also a permanent injunction restraining the defendants from depositing sawdust in the.stream. A preliminary injunction was granted, which restrained the defendants from, putting any sawdust in the stream thereafter until the further order of the court. That action was tried at special term, and resulted in findings of fact and law in favor of the plaintiffs therein, and awarding the plaintiffs a perpetual injunction restraining the defendants from depositing sawdust, chips and debris from said sawmill into said brook; and in the eighth finding of fact in that, case it was found “ that by reason of defendants depositing said sawdust,” etc., “ in said brook, as aforesaid, the plaintiffs have-suffered great and irreparable damage and loss.” In the complaint in this action it is alleged “ that in an action in this court,, wherein said Inderlied, Son & Co., were plaintiffs, and these defendants were defendants, it was found, adjudged, determined1,, and decreed that the defendants herein had wrongfully done all the acts herein alleged, and wrongfully caused all the damages and loss herein set forth.” Upon the trial of this action the pleadings and findings made by the court in the former action, as well as the judgment thereon, were introduced in evidence. In the course of the opening in this case the plaintiffs’ counsel said, “We shall not offer proof that the defendants have run any sawdnst into the stream since the temporary injunction was served in the fomer action.” The plaintiffs’counsel asked the court to “rule and hold that the plaintiffs are not precluded from showing damages in this action which arose after the commencement of the former action in equity. Thereupon the court declined, and the plaintiff took an exception. Thereupon the plaintiffs’ counsel said, “ the plaintiffs do not claim that the defendants ran any sawdust into the stream after the decision of the court, but do claim that sawdust run into the stream before the decision of the equity action has operated to injure the plaintiffs since.” Thereupon the court observed “that no evidence can be given of damages flowing from acts found in the equity action to have been committed by the defendants, but any damage flowing from act of defendants constituting a breach of the permanent injunction granted in that action may be given in evidence, and recovered for in this action.” To that holding the counsel for the plaintiffs took an exception. Thereupon the plaintiffs’ counsel asked the court to “hold, that, although no act has been done by the defendants since the trial of the equity case in violation of the injunction, by running sawdust from the mill into the creek, that the plaintiffs may be entitled to recover for acts done before either injunction, by which sawdust was placed in the creek, which afterward, from its lodging in the dam, and the action of the water, injured the plaintiffs.” The court declined, and the plaintiff excepted. Motion was made for a dismissal of the complaint, and granted, and an exception was taken, and thereupon it seems the court directed the jury to find for the defendant, and plaintiffs excepted, and .moved for a new trial on the minutes, which was denied.

      Marvins & Hanford, for app’lts; Levi H. Brown, for resp’t.
   Hardin, P. J.

Plaintiffs’ former action was brought on the equity side of the court, and sustained, because of the alleged wrongs and wrongful acts of the defendant mentioned in the complaint in that action. Plaintiffs’ action was maintained by reason of the alleged wrongs and trespasses of the defendant under the acknowledged head of equity giving power to the court to prevent a multiplicity of suits, and alleging a recovery of damages as incidental to the equity relief. Williams v. N. Y. C. Railroad Co., 16 N. Y. 111; Davis v. Lambertson, 56 Barb. 480 ; Hutchins v. Smith, 63 id. 252. In that action plaintiffs were entitled to recover all the damages-sustained up to the time of the trial thereof. Beirv. Cooke, 37 Hun, 38 ; Robinson v. Smith, 25 St. Rep. 647, and cases there cited. In Meyer v. Phillips, 97 N. Y. 485, it appeared an action was brought to restrain defendants from floating saw logs in the waters of a stream, and in dealing with that action the court said that the defendants “threatened to commit, and claimed the right to repeat, the trespass every year. Here a preventive action was proper to prevent an irreparable injury,' within the meaning of the equitable rule, and also to avoid a multiplicity of suits and in such an action it was said that damages sustained may be awarded to the plaintiff. In Shepard v. Man. R. Railroad Co., 117 N. Y. 442 ; 27 St. Rep. 705, it was held that property owners have-a remedy in a court of equity in cases where the trespass is continuous in its nature, in order to avoid a multiplicity'of suits, “and they can recover the damages they have sustained, as incidental to-the granting of the equitable reliefand it was further said that, the violation of the rights to property having been adjudged in such an action, “the awarding of damages,sustained in the past from the defendants, follows, they being, on equitable principles, deemed incidental to the main relief sought ? In Thomas v. Grand View Beach Railroad Co., 76 Hun, 603; 58 St. Rep. 256, the right to maintain an equity action was asserted, and it was said that in such an action “complete relief could be awarded between the parties as justice might require.” In Galway v. Met. E. Railroad Co.,. 40 St. Rep. 145, theopinion relates to the right of a party to maintain an action in acourt of equity under somewhat similiar circumstances, and it was there said :

“The cause of action, both at law and equity, in such cases, arises out-of the trespasses committed, and is based on the ownership of the property upon which the injuries are inflicted * * *' The existence of a legal cause of-action is not only a prerequisite to the maintenance of the equitable action, but is also the foundation of the jurisdiction which equity courts possess in respect" to* the subject-matter. * * * Inasmuch as the equitable remedy depends, among other things, upon the existence of a legal cause of action, it follows that those facts which will bar the legal action will also afford an answer to the equitable remedy, and that, so long as a legal remedy exists, an equity court is open to aid in the enforcement of the legal claim.”

If the former case had been a mere law action, the damages recoverable would have been limited to such as occurred prior to-the commencement of the action. Uline v. N. Y. C. & H. R. Railroad Co., 101 N. Y. 98 ; Rumsey v. Railroad Co., 63 Hun, 205 ; 45-St. Rep. 33; Galway v. Met. E. Railroad Co., supra.

In Hunter v. Man. R. Railroad Co., 141 N. Y. 281; 57 St. Rep, 400, it was said that, inasmuch as the action was on the equity-side—

“Where the main relief sought was an injunction against the-continuance by the defendants of acts in violation of the plaintiffs’ property rights, an award of damages for what past injuries might., be shown to have been inflicted would follow as incidental to the main relief. In such an action it is the settled rule that, if the-court decides that the claim for the equitable relief is well founded, it may proceed to asssess the damages sustained, in its own discretion, and no absolute right exists to have them determined by a jury.”

In Lynch v. Met. E. Railway Co., 129 N. Y. 274; 41 St. Rep,. 541, it was held, viz.:

“Where a court of equity gains jurisdiction of a cause for one-purpose, it may maintain it generally, and, to do complete justice between the parties, ascertain and award damages as incidental to-the main relief sought. Where, therefore, an equity court assumes jurisdiction to restrain a continuous trespass, in order to prevent a-multiplicity of suits it may proceed to give full relief, both for the tortious act and the resulting damages.”

In Van Allen v. N. Y. E. Railroad Co., 144 N. Y. 178; 63 St. Rep. 82, the question arose as to what damages might be recovered, and O’Brien, J., said:

“The facts showing the right to the injunction are undoubtedly the basis for equitable relief in such cases, and the claim for damages is an incident which equity draws into the litigation in order to prevent a multiplicity of suits and to completely adjust all the rights of the parties. * * * The measure of the relief is adapted to the situation at the time of the decree. * * * 27o principle is better established, or more frequently asserted, than that, when a court of equity has once acquired jurisdiction over a cause for any purpose, it may retain the cause for all purposes,, and proceed to a final determination of all the matters at issue.”

It must be assumed that in the former action the plaintiffs could' have recovered all damages which accrued prior to the decision which was made of that action apparently in September, 1887, upon which decision judgment was entered January 12, 1888. It was said in the opening in this case that in the former action evidence was given to support the complaint therein, and the counsel, in the course of his remarks, stated :

“ The main facts are in the former adjudication, and we shall ask this- jury to give their attention more particularly to the amount of damages which the plaintiffs, the Inderlieds, have suffered. The former action found all the facts substantially that were necessary to substantiate our action, but in that action there-was no proof as to the value of the damages.”

It follows from the cases to which reference has been made that, the plaintiffs were entitled to recover such damages as they had sustained by reason of the wrongful acts of the defendant done at the time of the making of the decree in that action. The pleadings and concessions made upon the trial indicate that no wrongful acts were perpetrated by the defendant after the decree made-in the former action. We are inclined to think that that judgment is a bar to the plaintiff’s right to recover for the matters referred to in the complaint in this action and in the opening made-at the trial.

In Smith v. Smith, 79 N. Y. 634, it was held that:

“ An estoppel by judgment in a former action arises when the-same matter was at issue therein, and was either litigated by the parties and determined, or it might have been litigated, and a decision had upon it. * * * It is sufficient if there might have been j udgment in the first action for the same cause alleged in the second. ”

The same doctrine was laid down in Clemens v. Clemens, 37 N. Y. 74, and referred to approvingly in Bloomer v. Sturgess, 58 id. 176. And in Jordan v. Van Epps, 85 id. 436, it was said:

“The judgment is final and conclusive between the parties, not only as to the matter actually determined, but as to every other-matter which the parties might have litigated and have decided as-incident to, or essentially connected with, the subject-matter of: the litigation within the purview of the original action, either as a matter of claim or of defense.”

In Lorillard v. Clyde, 122 N. Y. 47; 33 St. Rep. 303, it was said the omission to give proof of the damages would not affect the force to be given to the judgment. In the course' of the opinion it is said:

“ Evidence merely tending to show that the defendants omitted to produce, upon the trial, all the evidence that was admissible in their behalf, was immaterial. A judgment rendered on the merits is coextensive with the issues upon which it is founded, and is conclusive between the parties thereto, not only as to the matters actually proved, argued, and submitted for decision, but also as to every other matter directly at issue by the pleadings which the defendant party might have litigated.”

Numerous cases are then cited in support of the proposition thus stated. In the case before us, the complaint, after setting out the various grounds for the supposed right to recover in this action, expressly avers, viz. :

“ That in an action in this court, wherein Inderlied, Son & Co., were plaintiffs, and these defendants were defendants, it was found, adjudged, determined and decreed that the defendants herein had wrongfully done all the acts herein alleged, and wrongfully caused all the damages and loss herein set forth.”

The plaintiffs were entitled to recover such damages in that action “ as would necessarily and naturally result or be incurred from the injury complained of.” Argotsinger v. Vines, 82 N. Y. 314; Henderson v. N. Y. C. Railroad Co., 78 id. 423.

In McGean v. Met. E. Railroad Co., 133 N. Y. 9; 44 St. Rep. 75, it was held that a party was entitled to preventive relief, “ and the court, as a court of equity, thus having jurisdiction for this purpose, had power to award the past damages “; and in the course of the opinion delivered in that case, at page 16,133 N. Y. it is said that:

“ If the controversy contains an equitable feature, or requires any purely equitable relief belonging to the exclusive jurisdiction of equity, or pertaining to the concurrent jurisdiction of equity and law, and a court of equity thus acquires a partial cognizance of the action, it may go on to a complete adjudication, and establish purely legal rights, and grant legal remedies, which would otherwise be beyond the scope of its authority. Pom. Eq. Jur. §§ 181, 231, 242. So long as one of the grounds of equitable interference in this class of cases is the avoidance of a multiplicity of suits, this rule must prevail.”

The foregoing views lead to the conclusion that the result reached at the circuit should be sustained. Judgment and order affirmed, with costs.

All concur.


text:
    Court of Appeals.
    Ellen H. Ballard, Resp’t, v. Hitchcock Manuf’g Co., App’lt.
    March 19, 1895.

      O. U. Kellogg, for app’lt; Franklin Pierce, for resp’t.
   No opinion. Judgment affirmed, with costs, on opinions below. All con cur. Aff’g 55 St. Rep. 110.


text:
    Ludwig Bauman, Resp’t, v. Elizabeth Moseley, App’lt.
    March 19, 1895.

      Henry L. Brant, for app’lt; William H. Shepard, for resp’t.
   No opinion. Judgment affirmed on opinion below, with costs. All concur. Aff’g 56 St. Rep. 132.


text:
    Mary F. Baxter, App’lt, v. New York State Mut. Ben. Ass’n, Resp’t (three cases).
    February 26, 1895.

      James Devine, for app’lt; Louis Marshall, for resp’t.
   No opinion. Appeal dismissed, with costs, All concur.


text:
    Becraft, Resp’t, v. New York Cent. & H. R. R. R. Co., App’lt.
    March 22, 1895.

      C. D. Prescott, for app’lt; Nelson Zabriskie, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur, except Finch, J., not sitting.


text:
    Henry A. Bowerman, App’lt, v. Warren D. Bowerman et al., Resp’ts.
    February 26, 1895.

      Horace Secor, Jr., for app’lt; Wiliam C. De Witt and Payson Merrill, for resp’ts.
   No opinion. Order affirmed, and judgment absolute ordered for defendants, with costs, on opinion below. All concur. Aff’g 59 St. Rep. 633.


text:
    Matter of Jane Lee Breton Brugh.
    February 26, 1895.

      William G. Cooke, for app’lt; Norris Morey, for resp’t.
   No opinion. Appeal from order confirming report of referee superseding commission affirmed, with costs. Appeal from order confirming report of referee settling accounts of committee dismissed, with costs. All concur, except Haight, J., not sitting.


text:
    Margaret Byrne, Resp’t, v. Brooklyn City & N. R. Co., App’lt.
    March 19, 1895.

      Matthew Hale, for app’lt; J. Stewart Ross, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur, except Peck-ham, J., not voting. Aff’g 58 St. Rep. 127.


text:
    Canadian Agricultural, Coal & Colonization Co., Limited, Resp’t, v. Joseph L. Spofford, App’lt.
    March 12, 1895.

      Henry W. Hardon, for app’lt; Edwin T. Rice, Jr., for resp’t.
   No opinion. Order affirmed, with costs. All concur. Aff’g 56 St. Rep. 885.


text:
    James C. Caywood, Resp’t, v. John K. Van Ness, App’lt.
    February 26, 1895.

      Robert Payne, for app’lt; William G. Cooke, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 56 St. Rep. 213.


text:
    Benjamin Crosby, Resp’t, v. William H. Clark, App’lt.
    March 19, 1895.

      William Vanamee, for app’lt; Daniel Finn, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 62 St. Rep. 56.


text:
    Matter of George E. Cullum’s Will.
    February 26, 1895.

      Wallace Macfarlane and Charles Duane Baker, for app’lts; Benj. F. Dos Passos, for resp’t.
   No opinion. Order affirmed, with costs. All concur. Aff’g 58 St. Rep. 868.


text:
    Maria L. Davis, Resp’t, v. New York, L. E. & W. R. Co., App’lt.
    March 19, 1895.

      Lewis E. Carr, for app’lt; Frank Comesky, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur, exept Peckham and Gray, JJ., dissenting. Ail’g 59 St. Rep. 879.


text:
    Dean et al. v. Driggs. Appeal of Hatch.
    February 26, 1895.

      Thomas P. Wickes, for app’lt; L. E. Warren, for resp’t.
   No opinion. Order affirmed, with costs, on opinion below. All concur.


text:
    Eagle, Resp’t, v. Rochester Paper Co., App'lt.
    February 26, 1895.

      George F. Yoeman, for app’lt; P. Chamberlain, Jr., for resp’t.
   No opinion. Judgment affirmed, with costs; All concur, except Haight, J., not s ttiug.


text:
    Emma M. Haskins, App’lt, v. New York Cent. & H. R. R. R. Co., Resp’t.
    March 5, 1895.

      John Gillette, for app’lt; J. W. Dunwell, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur, except Bartlett, J., dissenting, and Finch and Haight, JJ., not sitting. Aff’g 60 St. Rep. 817.


text:
    Hillen, App’lt, v. Iselin et al., Resp’ts.
    March 19, 1895.
   No opinion. Motion for reargument denied, $10 costs.


text:
    Hochstrasser, App'lt, v. Martin et al., Resp’ts.
    March 5, 1895.
   No opinion. Motion for granting new undertaking granted.


text:
    Matter of John J. Hopper.
    March 12, 1895.

      David McClure, for app’lt; Edward Hassett, for resp’t.
   No opinion. Older affirmed, with costs. All concur. Aff’g 60 St. Rep. 688.


text:
    Ira Lee, App’lt, v. John Van Voorhis et al., Resp’ts.
    February 26, 1895.

      George F. Yeoman, for app’lt; John Van Voorhis, for resp’ts.
   No opinion. Judgment affirmed on opinion below, with costs. All concur, except Haight, J., not sitting. Aff’g 61 St. Rep. 220.


text:
    Ernest St. George Lough et al., Appl’ts, v. Adolphus Outerbridge et al., Resp’ts.
    February 26, 1895.

      Treadwell Cleveland, for app’lts; Wilhelmus Mynderse, for resp’ts.
   No opinion. Judgment affirmed, with costs, on opinion by O’Brien, J., in 143 N. Y. 271. All concur, except Andrews, Ch. J., and Peckham, J., dissenting. Aff’g 52 St. Rep. 668.


text:
    Carrie S. Lounsbury, Resp’t, v. Wilson Foss, App’lt.
    February 26, 1895.

      Irving Brown, for app’lt; Roger Foster, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur, except Finch and Gray, JJ., dissenting: Aff’g 61 St. Rep. 829.


text:
    McGreevy, Resp’t, v. Buffalo R. Co., App’lt.
    March 19, 1895.

      Porter Norton, for app’lt; Harry D. Williams, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    Mackay, Resp’t, v. Dennington, App’lt.
    March 12, 1895.

      E. T. Rice, for app’lt; James C. Hays, Edward W. Ditmarsh and Sherman Evarts, for resp’t.
   No opinion. Order affirmed, on opinion below, with costs. All concur.


text:
    Manhattan Ry. Co. et al., Resp’ts, v. Julia A. Kent et al., App’lts.
    February 26, 1895.

      Charles L. Pashley, for app’lts; William H. Godden, for resp’ts.
   No opinion. Order affirmed, with costs. All- concur. Aff’g 62 St. Rep. 569.


text:
    Mickee, App’lt, v. Walter A. Wood Mowing & Reaping Mach. Manuf’g Co., Resp’t.
    March 5, 1895.
   No opinion. Motion for reargument denied, $10 costs.


text:
    Gilbert Murdock et al., Resp’ts, v. Harriet Robinson, App’lt.
    March 19, 1895.

      E. W. Harris, for the motion; Lynn J. Arnold, opposed.
   No opinion. Remittitur amended so as to declare, “ that the judgment be affirmed as to all the defendants so far as it affects the part of the premises owned by the Lamb heirs, and that it be reversed as to the part of the premises owned by Clarissa Waterman,” and in other respects that the motion be denied. Aff’g in part and rev’g in part, 55 St. Rep. 1.


text:
    Thomas O’Brien, Resp’t, v. David K. McCarthy et al., App’lts.
    February 26, 1895.

      Louis Marshall, for app’lts; C. G. Baldwin, for resp’t.
   No opinion. Judgment affirmed on opinion below, with costs. All concur, Aff’g 54 St. Rep. 532.


text:
    Page et al., Resp’ts, v. Roebling, App’lt.
    February 26, 1895.

      Willis B. Dowd, for app'lt; David P. Morehouse, for resp’ts.
   No opinion. Judgment affirmed, with costs, on opinion below. All concur.


text:
    Julia V. Pape, Resp’t, v. Joseph S. Schofield et al., App’lts.
    February 26, 1895.

      William R. Page, for app’lts; J. Delahunty, for resp’t.
   No opinion. Judgment affirmed on opinion below, with costs. All concur. Aff’g 59 St. Rep. 820.


text:
    People, App’lt, v. Charles Flaherty, Resp’t.
    February 26, 1895.

      William Carter, for app’lt; F. C. Peck, for resp’t.
   No opinion. Judgment affirmed on opinion below. All concur, except Haight, J., not sitting. Aff’g 61 St. Rep. 197.


text:
    People v. Life Union.
    March 12, 1895.

      Raphael J. Moses, for app’lt; Edmund Luis Mooney and M. P. O'Connor, for resp’t.
   No opinion. Order affirmed on authority of In re Equitable Reserve Fund, Life Ass’n, 131 N. Y. 354. with costs. All concur.


text:
    People ex rel. Chase, App’lt, v. Wemple et al., Comptrollers, Resp’ts.
    March 5, 1895.
   No opinion. Motion for reargument denied, $10 costs.


text:
    People ex rel. Dinsmore, App’lt, v. Gilroy et al., Resp’ts (two cases).
    February 26, 1895.

      Roger Foster, for app’lt; David J. Dean, for resp’ts.
   No opinion. Order affirmed, with costs. All concur. Aff’g 64 St. Rep. 480.


text:
    People ex rel. Keene, Resp’t, v. Board of Sup’rs of Queens County, App’lt.
    February 26, 1895.

      F. H. Van Veehten, for app’lt; Roswell W. Keene, for resp’t.
   No opinion. Order affirmed, with costs. All concur. Aff’g 64 St. Rep. 159.


text:
    People ex rel. Ready, Resp’t, v. Mayor, etc., of City of Syracuse, App’lts.
    March 19, 1895.
    Motion to amend remittitur.

      T. E. Hancock, for the motion; Charles E. Ide, opposed.
   No opinion. Ordered, that the remittitur herein be amended so as to allow the relator, Patrick Ready, to recover interest on the amount adjudged to be paid over to him, from the 8th of August, 1890, the date of the commencement of the proceeding, and that no further damages be awarded, with $10 costs.


text:
    People ex rel. Sheldon, Resp’t, v. Fraser et al., Assessors, App’lts.
    February 26, 1895.

      L. Fraser, for app’lts; James Gibson, for resp’t.
   No' opinion. Judgment affirmed, with costs, on opinion below. All concur. Aff’g 56 St. Rep. 888.


text:
    Matter of Charles E. Perkins.
    February 26, 1895.

      George C. Lay, for app’lts; Edward S. Rapallo, for resp’ts.
   No opinion. Judgment affirmed, with costs, on opinion below. All concur, except Bartlett, J., not voting. Aff’g 57 St. Rep. 228.


text:
    Matter of Joseph Pool.
    March 19, 1895.

      James W. Hawes, for app’lt; Herman Aaron, for resp’t.
   No opinion. Judgment affirmed, witli costs. All concur, except Bartlett, J., not voting. AflE’g 59 St. Rep. 214.


text:
    Runcie, Resp’t, v. Seitz et al., App’lts.
    February 26, 1895.

      J. J. Bennett, for app’lts; Isaac H. Maynard, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    Skaneateles Paper Co., App’lt, v. State, Resp’t.
    March 19, 1895.
   No opinion. Motion for reargument, etc., denied, $10 costs.


text:
    Charles M. Smith, Resp’t, v. George B. Northup, App’lt.
    March 22, 1895.

      Charles H. Searle, for app’lt; Charles K. Carruth, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 61 St. Rep. 602.


text:
    Smith v. Rentz.
    March 5, 1895.
   No opinion. Motion to modify judgment denied, without costs.


text:
    Matter of Mary Snelling’s Will.
    February 26, 1895.

      L. R. Bedkley, for app’lts; Thomas Young, for resp’ts.
   No opinion. Judgment affirmed, with costs to the executor payable out of the estate. All concur. Aff’g 60 St. Rep. 289.


text:
    United States Trust Co. of New York, App’lt, v. Philip V. R. Stanton, Resp’t.
    March 19, 1895.

      Edward W. Sheldon, for app’lt; Josiah T. Marean, for resp’t.
   No opinion. Judgment affirmed on the defense of the statute of limitations, with costs. All concur, except Gray and Bartlett, JJ., dissenting. Aff’g 59 St. Rep. 601.


text:
    Waller, App’lt, v. State, Resp’t.
    March 19, 1985.
   Motion for reargument denied. No opinion.


text:
    Winslow, App’lt, v. Carthage, W. & S. H. R. R. Co. et al. Matter of Upham, County Treasurer, Resp’t.
    March 12, 1895.

      D. G. Griffin, for app’lt; Hannibal Smith, for resp’t.
   No .opinion. Appeal dismissed, on the ground that the order is not one which is reviewable in this court, with costs. All concur, except O’Brien, J., taking no part.


text:
    Isaac O. Woodruff et al., Resp’ts, v. Alfred T. Ackert et al., App’lts.
    February 26, 1895.

      Alfred T. Ackert, for app’lts; Alfred L. Manierre, for resp’ts.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 61 St. Rep. 827.


text:
    Supreme Court, etc.
    Jacob Appell, Resp’t, v. Theodore W. Stemmler, App’lt.
    N. Y. C. P.,
    February 4, 1895.
   No opinion. Judgment affirmed, with costs, upon argument.


text:
    Atlantic Ave. R. Co. v. Long Island R. Co. et al.

    Sup. Ct., 2 D.,
    February 11, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    Atlantic Ave. R. Co. of Brooklyn v. Long Island R. Co. et al.

    Sup. Ct., 2 D.,
    February 11, 1895.
   Per Curiam.

The opinion of the judge who tried this cause discloses sufficient grounds to justify the judgment which was rendered. Affirmed.


text:
    Solomon Bachrach et al., App’lts, v. Rachel Levy, Resp’t.
    Sup. Ct., 1 D.,
    March 15, 1895.
   No opinion. Order affirmed, with $10 costs and disbursements, and with leave to renew application as matter of favor to be relieved from judgment as inadvertently entered.


text:
    Henry Bahr v. Edison General Electric Co.
    Sup Ct., 3 D.,
    February 26, 1895.
   No opinion. Order reversed, motion to open default and vacate judgment granted with $10 costs of this appeal, and printing and other disbursements.


text:
    Samuel L. Bailey, App’lt, v. Ellen A. Crowell, Resp’t.
    N. Y. C. P.,
    February 4, 1895.

      A. J. Moore, for app’lt; William S. Lewis, for resp’t.
   Per Curiam.

The return bears record of the fact that an assignment to the landlord in this proceeding of the lease from Becar et al. to Gano was received in evidence on behalf of the plaintiff. We fail to find such exhibit annexed to the return, and are unable to satisfactorily determine this appeal in the absence of a complete record. Reargument ordered for February additional general term, return to be amended meanwhile.


text:
    Herman B. Bartels, Resp’t, v. Benedickt Fischer et al., App’lts.
    B. C. C.,
    February 25, 1895.

      W. W. Fletcher and H. Huffman Browne, for app’lts; Robert Goeller, for resp’t.
   Per Curiam.

The defendants, at the close of the case, moved to dismiss the

complaint, on the ground that there was no proof of value at the date of trial. This motion was properly denied, as the plaintiff was entitled, in any event, to a valuation of six cents. We have carefully examined the record, and conclude that the testimony given at folios 99 and 100 was sufficient to justify the jury in finding that the value of the property at the trial was substantially the same as at the taking. It was not in the power of the plaintiff to examine the goods, for they had been in possession of the defendants, and, no doubt, had been scattered. The testimony given at folio 356 was properly admitted, for the reason given at the trial. We have examined the points of the counsel for appellants, and can find no ground to justify a reversal of the judgment. Judgment and order denying new trial affirmed, with costs.


text:
    Gerard Beekman et al., App’lts, v. Susan Van Dolsen, Resp’t.
    Sup. Ct., 1 D.,
    March 15, 1895.
   No opinion. Judgment affirmed, with costs, on opinion on previous appeal


text:
    David Belasco v. N. K. Fairbank et al.

    Sup. Ct., 1 D.,
    February 15, 1895.
   No opinion. Motion denied, with $10 costs.


text:
    Berry Harvester Co., App’lt, v. Walter A. Wood Mowing & Reaping Mach. Co., Resp’t.
    Sup. Ct., 3 D.,
    February 12, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    Siegfried Bienenstok et al., Resp'ts, v. Edward H. Ammidown et al. App’lts.
    Supr. Ct.,
    January 21, 1895.

      McFarland & Parkin (W. W. McFarland, of counsel), for app’lts; Blumenstiel & Hirsch (A. Blumenstiel, of counsel), for resp’ts.
   Per Curiam.

The judgment is affirmed, with costs, on the opinion of the court below.


author: Dykman, J.

text:
    Birch et al., App’lts, v. Loyd, Resp’t.
    Sup. Ct., 2 D.,
    February 11, 1895.

      John G. Van Etten, for app’lts; John C. R. Taylor, for resp’t.
   Dykman, J.

There are three appeals in this case,—one from the judgment entered upon the verdict in favor of the defendant after a trial at the circuit, one from the order denying a motion for a new trial upon the minutes of the court, and one from an order denying a motion for a new trial on the ground of newly-discovered evidence,—and the appeals are all entirely destitute of merit. Justice has been done, and the judgment and order denying the motion for a new trial on the minutes should be affirmed, with costs, and the order denying the motion for a new trial upon newly-discovered evidence should be affirmed, with $10 costs and disbursements, without an opinion.


text:
    John E. Blackman v. Charles Riley, Resp’t, Jane A. Dorland, App’lt.
    Sup. Ct., 1 D.,
    February 15, 1895.
   No opinion. Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs, with leave to renew upon new papers on payment of costs.


text:
    Israel O. Blake, Resp’t, v. Herman Bolte, App’lt.
    N. Y. C. P.,
    February 4, 1895.
   No opinion. Motion for reargument. Motion granted.


text:
    Joseph B. Bloomingdale et al., Resp’ts, v. Henry Steubling, App’lt.
    N. Y. C. C.,
    March 19, 1895.
   No opinion. Order affirmed, on opinion of Fitzsimons, J., at special term.


author: Ehrlich, Ch. J.

text:
    Isidor Blumenthal v. Zacharias Exiner.
    N. Y. C. C.,
    March 19, 1895.

      Gilleran & Ford, for app’lt; Steuer & Rosenthal, for resp’t.
   Ehrlich, Ch. J.

The question involved was whether the defendant made the promissory notes sued upon. This was submitted to the jury, on conflicting evidence, and, their finding thereon being satisfactorily sustained by the proofs, the judgment and order appealed from must be affirmed, with costs.


text:
    Frederick A. Boyden, Resp’t, v. Austin P. Baldwin et al., App’lts.
    N. Y. C. C.,
    March 19, 1895.

      Seward, Guthrie, Morawetz & Steele, for app’lts; Samuel G. Adams, for resp’t.
   Ehrlich, Ch. J.

The action is to recover commissions on the sale of certain goods, under a contract made witii the defendants whereby they agieed to pay the plaintiff a commission of ten per cent, on all sales procured by him; this commission to continue on all purchases by parties the plaintiff had introduced, and should continue to buy of the defendants.- The facts constituting the plaintiff’s cause of action were clearly proven, and the verdict was properly directed in his favor. Judgment affirmed, with costs.


text:
    Matter of Brewster.
    Sup. Ct., 1 D.,
    March 15, 1895.
   No opinion. Judgment affirmed, with $10 costs and disbursements.


text:
    George F. Britton, App’lt, v. Kate C. Henderson, Resp’t.
    Sup. Ct., 1 D.,
    March 15, 1895.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    J. Wilson Bryant, App’lt, v. Bowery Sav. Bank, Resp’t.
    N. Y. C. P.,
    February 4, 1895.
   No opinion. Judgment affirmed, with costs, upon argument.


text:
    Matter of Buffalo Mutual Gaslight Co.
    Sup. Ct., 5 D.,
    October, 1894.
   No opinion. Order appealed from affirmed, with costs, on the authority of In re Douglas, 48 Hun, 318.


text:
    Edward Burns, Resp’t, v. Augustine Walsh, App’lt.
    N. Y. C. P.,
    February 4, 1895.
   No opinion. Motion for reargument denied, with $10 costs.


text:
    Dimont M. Caldwell, Resp’t, v. Mutual Reserve Fund Life Ass’n, App’lt.
    Sup. Ct., 1 D.,
    February 15, 1895.
   No opinion. Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs.


text:
    Louise Carlson, Resp’t, v. Maria L. Winterson, App’lt.
    N. Y. C. P.,
    February 4, 1895.
   No opinion. Motion for leave to appeal to court of appeals granted.