author: Pratt, J. Dykmak, J.

text:
    Eliza A. Munoz, Admr’x, Resp’t, v. George Wilson et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    1. Mortgage—At what time it becomes effectual.
    One owning the premises in suit in this action on February 6, 1878, conveyed the same with others to his nephew by deed of that date acknowledged on the thirteenth day of the same month and recorded on the following day. This conveyance was without consideration and executed with intent to defraud creditors. The grantee at the same time executed a deed conveying the same premises to his grantor’s wife and bearing even date with the first deed and acknowledged on the same day with it, but not recorded until October 4, 1881. He also, on October 2, 1879, by direction of the grantor, made a mortgage of the premises in question to the mother of this plaintiff, which was acknowledged December 27,1879, and recorded on the thirty-first day of that month. The mortgage was made to secure an indebtedness of the original owner of the premises to the mortgagee. In an action brought to foreclose the mortgage, its validity was attacked on the ground that it had no legal inception. Held, that the fact that the party at whose instigation the mortgage was made retained it after it was recorded, did not affect its validity; that when it was delivered by the mortgagor to the agent of tne mortgagee it became valid and effectual as a mortgage.
    2. Recording act—Bona fide purchaser.

      Held, that the mortgagee, considering the facts of the case, must be regarded as a bona fide purchaser under 1 R. S., 756, § 1. (Dvkman, J., dissents).
   Pratt, J.

The only theory that can be predicated upon the evidence in this case is that expressed by the judge who tried the cause at special term, in his findings of fact:

That Michael K. Wilson was the real owner of the mortgaged premises, was indebted to Mrs. Olay, the mother of the plaintiff, and caused George Wilson, who held the nominal title in trust for Michael, to make the mortgage to secure such indebtedness is undoubtedly true, and it is also true that Michael, with a designio cheat his creditors, made a conveyance of the same property to George, and caused the latter to make a deed of the same to Eliza A., the defendant.

That George held the possession of the property and managed it for the benefit of Michael seems clear, and that the latter controlled the former in all acts concerning the property is the only reasonable conclusion to be drawn from the testimony.

The evidence is abundant and conclusive as to the existence of an indebtedness to the amount of the mortgage from Michael to Mrs. Olay. lío other reasonable construction can be placed upon the conduct of Michael than that he owed Mrs. Olay and intended to secure her by this mortgage. The making of the mortgage without consideration would not aid his scheme to defraud his creditors, unless they were both guilty of a conspiracy and that Mrs. Olay was ready to commit perjury to assist Michael in defrauding his creditors. We can indulge in no such presumption.

The facts are equally clear upon the question of the due execution and delivery of the mortgage.

That George signed, sealed and delivered the mortgage to Michael without condition or qualification, is undisputed, and that the latter assumed to act for Mrs. Clay and received and recorded the mortgage for her benefit, is well established by the proofs.

The fact that Michael retained the mortgage after it was recorded does not affect the validity of the instrument. When it was delivered by George and accepted by Michael for Mrs. Olay, it became valid and effectual as a mortgage and what may have transpired after that was immaterial.

The efficiency of a deed depends upon its being executed according to the statutory formalities and being unconditionally delivered by the maker to the grantee or his agent. Wallace v. Berdell, 97 N. Y., 13-23; Fisher v. Hall, 41 id., 416; Church v. Gilman, 15 Wend., 656; Moore v. Giles, 49 Conn., 570.

That George delivered the mortgage and forever ceased to have any control of it afterwards cannot be questioned.

It is equally clear that Michael accepted the mortgage in behalf of Mrs. Clay and intended to make it a valid and effectual security in her hands. Lawrence v. Farley, 24 Hun, 293; Moore v. Giles, supra.

The court below was right in holding that the mortgage in suit was prior and paramount to the deed to Eliza Munoz.

Leaving out of view the principle that a fraudulent conveyance cannot be set up to defeat a junior mortgage, the fact here is that the mortgage was delivered prior in point of time to the deed.

We also think that Mrs. Clay must be regarded, under the facts disclosed, as a purchaser in good faith under the recording act. 1 Rev. Stat., 756, § 1.

Michael managed the whole business; he intended to have the mortgage take effect prior to the deed, and accordingly had it recorded first.

There was evidently no intention to vest any title in Eliza Wilson prior to the recording of the mortgage, and possibly not at all, unless it became necessary in furtherance of the scheme to defraud creditors. This is shown by the fact that Eliza never knew she had any title until the deed was handed to her after it was recorded.

Mrs. Clay has since died, and it is not difficult to find a motive on the part of Michael to defeat this mortgage, but the evidence fails to sustain the defence, and the judgment must be affirmed, with costs.

Dykmak, J.

(dissenting)—This is an action to foreclose a mortgage, and its validity is assailed for want of legal inception. It is the claim of the defendants that the mortgage never became operative and never had legal existence or obligatory force.

The facts to be utilized in the decision of the case are these: Michael K. Wilson was the owner of the premises, and all the legal rights of these parties flowed from him, and he had invested in the property $16,000, received from his mother-in-law, who had directed him to give the property to his wife. On the sixth day of February, 1878, Michael K. Wilson conveyed the premises in question, with others, to his nephew George Wilson, by deed of conveyance, dated and bearing date on that day, acknowledged February thirteenth and recorded February 14, 1873. That conveyance was without consideration and was executed with the design of placing the property beyond the reach of the creditors of the grantor.

George Wilson, the grantee, at the same time executed a deed of conveyance for the same premises to Eliza A. Wilson, the wife of Michael K. Wilson, bearing date the same day and acknowledged at the same time with the other, but it was not recorded until October 4, 1881.

On the second day of October, 1879, George Wilson, by direction of his uncle Michael, made the mortgage in question to Elizabeth Jane Clay, the intestate and mother of the plaintiff, and acknowledged the same December 27, 1879. The mortgage was recorded December 31, 1879. There was no bond executed, and the mortgagee never had possession of the mortgage and had no information of its execution or existence. There is no proof of any indebtedness to the mortgagee, either from George or Michael, except the inference arising from the execution of the instrument itself. The deed of conveyance to Eliza A. Wilson was delivered to her husband and remained in the house thereafter and she was aware of its execution and existence.

The mortgage in question was made under the direction of Michael K. Wilson, and delivered to him, and he loft it for record, and it was returned to him after it was recorded, and thereafter remained in his possession.

The trial judge found the facts requisite to authorize a judgment in favor of the plaintiff, and among other things found that the mortgage, although posterior in date to the deed of conveyance to Eliza A. Wilson, was in fact delivered or became operative.

This case is peculiar. George Wilson, the person who executed this mortgage never was more than the nominal owner of the premises. He received the legal title at the request of his uncle, and conveyed the same away by his direction to Ms wife. George Wilson never rested under any obligation to execute a mortgage to Mrs. Clay, and for himself he never undertook to do so. If a mortgage was to be givento her, Michael K. Wilson was to procure its execution. He was the real mortgagor, and the mortgage was to be furnished or withheld at Ms election. He did procure its execution, but he retained it in Ms own possession, or under Ms absolute control. He had dominion over it at all times. Its execution was the result of his command, and so far from manifesting any intention to surrender it, or deliver it to any one, ho held it within his grasp with vigilance and determination.

The question of delivery always involves a question of intention, and an intent to deliver on one hand, and accept on the other, is essential in all cases to an effective delivery, and if Michael K. Wilson, who was the person to furnish the security if it was supplied, never intended to surrender the same, and never did part with its possession, then there was no delivery thereof, neither did the simple act of recording the mortgage constitute a delivery. Day v. Mooney (6 Thomp. & Cook, 382), and cases cited. In that case the senior counsel for the plaintiff in this action wrote the opinion of the court and made reference to authority amply sufficient to sustain his conclusion.

This mortgage was not the result of any arrangment for security and its execution was the result of the mere volition of Michael K. Wilson. Its acceptance could not have been forced upon the mortgagee, and she could not have compelled its delivery to her. We find, therefore, no testimony to support the finding in favor of a delivery of the mortgage.

The question of consideration is also a very serious one, in the way of the plaintiff. There was no bond and the mort: gage created no personal liability. Under our statute the seal was only presumptive evidence of a consideration and the circumstances surrounding the execution of this mortgage go very far to rebut such a presumption in this case.

Nor is the question of priority free from embarrassment. Michael K. Wilson procured the execution of the deeds and mortgage and his knowledge of the existence of the deed to his wife may well be imputed to the mortgagee if she claims any benefit from his action.

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


source: Caselaw Access Project

author: Barnard, P. J. Pratt, J.

license: Public Domain

text:
    Mary E. Rogers, et al., Resp’ts, v. George Anson, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Trespass—Proof of damage.
    On the question of damage arising from trespass upon the lands of the plaintiff, she was allowed to testify as to the value of trees and the damage done them. Meld, that the question did not call for opinion, merely that the value of the property was a fact, and that she might state the value of the things specifically mentioned by her as in a greater or less degree injured.
    2. Same—Measure of damages.

      Held, that the damage was the difference between the land before the injury and after it, and that a question calling merely for that was competent.
    Appeal from a judgment of the county court of Dutchess county entered upon the verdict of a jury in favor of the plaintiffs.

      A. M. & G. Con, for app’lt; W. C-., for resp’t.
   Barnard, P. J.

This was an action of trespass upon lands. The parties are adjoining owners and the damage alleged to have been done was done by cattle.

The plaintiffs premises had vines, _ currant hushes and fruit trees on it. The principal question presented was as to the proof of damage. One of the plaintiffs, Hannah Northrop, testified as follows: “the limbs were broken down, some of the trees were broken down to the roots, the quince bushes were entirely broken off and my cranberries (they were of a large kind) they were destroyed and the bigger trees, the limbs were broken off pear trees, apple trees, cherry trees and all I had about 100 apple trees and cherry, six pear, and great limbs were broken off them. I had an ornamental tree that was also torn to pieces, torn from the ground. That was worth $500; grape arbor was also destroyed. I had terraces along them; they were also destroyed so it had to be rebuilt.”

The plaintiff was permitted to put this question:

Q. What was the value of the trees, what v/as the amount of damage which you saw done them ? A. Well, $200.

This question did not call for an opinion merely. The value of property is a fact and not an opinion and the double question merely called for the value of the things specifically mentioned by the witness as in a greater or less degree injured. McCollum v. Seward, 62 N. Y., 316; Seymour v. Fellows, 77 id., 178. The other instances where exception was taken to the question of damages were not erroneous.

The witness J. H. Northrop, after giving with great minuteness the items of injury and after stating that he knew the value of lands, was asked what was the amount of damage done.

Under the case of Argotsinger v. Vines (82 N. Y., 308), the damage was the difference between the land before the injury and the land after it and the question called for that only. The question put to the witness Eogers is sustainable for the same reason. The witness Cary gave particularly the injury he had seen and that he made up his damages from that only. No error was committed in refusing to strike out the answer given by the witness Cable. He had stated the injury he said, and when asked as to its extent, replied as follows: “If it was on my own land I should hate to have it done for a couple of hundred dollars.”

This was responsive to the question. The only objection to it is the insertion of that part of the answer which refers to his own land. It does not appear that the witness intended to make a different estimate by reason of that answer. It was a mannerism of the witness to convey the idea that the damage done was $200. The damages are not excessive. The injury was considerable. There is some evidence that it amounted to $200. When a lesser sum is given by a witness it appears that he did not include all, but only such' portions as he had brought to his notice. The question is one peculiarly for a jury and the verdict thereon should stand.

Judgment affirmed, with costs.

Pratt, J.

There are no errors of law shown by the record, and we do not think the verdict can be called excessive.

The jury upon the first trial rendered a verdict for $200, which should be allowed some weight upon the question of excessive damages.

The trespass was deliberate and continued, and the evidence required substantial damages. The charge of the court was as favorable as defendant had any right to expect.

Judgment affirmed with costs.


author: Pratt, J.

text:
    Charles Van Fleet v. William S. Ketcham.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    1. Evidence—Charge against a master for goods delivered to a servant—Intent of parties may be shown.
    In an action against a master to recover the amount of a hill for goods delivered to his servant: Held, that the fact that the goods were charged to the servant upon the plaintiff’s hooks was not conclusive against his right to recover, and that the court would look at all the surrounding circumstances to ascertain the intent of the parties.
    2. Same—Reason for entries may be shown.

      Held, that it was competent for the plaintiff to explain his si-stem of hook-keeping, and show why he made the charge to the servant instead of the master. ,
   Pratt, J.

This is an appeal from a judgment entered upon the verdict of a jury at the county court of Orange county for the sum of $281.87, and also from the order of the court denying defendant’s motion for a new trial on the minutes.

The action was originally brought in justice’s court to-recover of the defendant the amount of a feed bill, which bill was created with the plaintiff by one James S. Buck, who at the time of the debt was made Was in the occupancy of the defendant’s farm in the town of Minisink, state of New York. The liability of the defendant for the debt contracted by Buck is sought to be sustained by virtue of an agreement entered into between the defendant and Buck, dated December 3, 1880, which agreement is set out in the complaint.

At the time the debt was made the defendant was not-present, and the negotiations were carried on between Buck and the plaintiff, and the charge was made to Buck exclusively, on the books of the plaintiff.

Under the authorities cited by the plaintiff, the agreement created the relation of master and servant, or principal and agent, between defendant and Buck. Putnam v. Wise, 1 Hill, 234; Taylor v. Bradley, 39 N. Y., 129. The ruling of the court, therefore, to that effect was not error.

There is some evidence in the case going to show that the defendant specially authorized Buck to make the purchase and the plaintiff to deliver the goods. The jury found from all the facts that the defendant was the principal, and the evidence is abundant to sustain the finding. The plaintiff, however, charged the goods upon his books to Buck. This fact is not conclusive against his right to recover.

The court will look at all the surrounding circumstances with a view to ascertain the intent of the parties. That plaintiff intended to hold the defendant, the sole owner of the farm and stock, liable for the goods, seems reasonably clear from the evidence, and the jury have so found.

There is also proof going to show that defendant, with a full knowledge that plaintiff was delivering feed to Buck upon his (defendant’s) credit, ratified such deliveries and “promised to pay if plaintiff would let the bill run another month.”

The exceptions to the rulings of the court as to the admission were not well taken. It was competent for -the plaintiff to explain his system of bookkeeping and show why he made the charge to Buck instead of the defendant. The plaintiff was not endeavoring to prove a custom, but only to explain his own book. Arnold v. Allen, 9 Daly, 198; Meeker v. Claghorn, 44 N. Y., 349; Foster v. Persch, 68 id., 400.

We have examined the various exceptions, and find none presenting any error sufficient to warrant a reversal of the judgment, which must be affirmed, with costs.


author: Barnard, P. J.

text:
    Ellen Phelan, as Adm’x, App’lt, v. The Northwestern Mutual Life Insurance Co., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Insurance policies—Forfeiture for non-payment of premiums — Notice—Laws 1877, chap. 321.
    The intention of Laws 1877, chapter 321, is to prevent the forfeiture of an insurance policy unless notice of the no-i-payment of a premium be given at least thirty days before such forfeiture. Under its provisions, a notice in advance of the time when the premium will be due makes it possible for a company to declare the policy forfeited by reason of nonpayment on the day on which the premium is due.
    Appeal from a judgment in favor of the defendant entered upon an order dismissing the complaint made by the court upon the trial of the action at the Kings county circuit..

      Raphael J. Moses, Jr., for app’lt; Bristow, Peet & Op-dyke, for resp’ts.
   Barnard, P. J.

The proof shows that in March, 1880, the plaintiff’s intestate, George F. Phelan, took out a policy of insurance upon his life in the defendant’s company. The amount was $3,000. The premiums were payable quarterly. The payments of the premiums had not always been made regularly, but it is a condition of the policy that a waiver of a forfeiture shall not be deemed an acquiescence as to the future by the company. There was a payment due Dec. 31st, 1882, which was not paid. By the condition of the policy this non-payment gave the right to the defendant to treat the policy as null. By chap. 321, laws of 1877, forfeitures for non-payment are prevented unless the company gave a notice according to the direction of the act. The case turns upon the section, and it is as follows:

No life insurance company doing business in the state of New York, shall have power to declare forfeited or lapsed any policy hereafter issued or renewed, by reason of non-payment of any annual premium or interest, or any portion thereof, except as hereinafter provided. Whenever any premium or interest due upon any such policy shall remain unpaid when due, a written or printed notice stating the amount of such premium or interest due on such policy, the place where said premium or interest should be paid, and the person to whom the same is payable shall be duly addressed and mailed to the person whose life is assured, or thn assignee of the policy, if notice of the assignment has been given to the company at his or her last known post-office address, postage paid by the company or by an agent of such company or person appointed by it to collect such premium.

Such notice shall further, state that unless the said premium or interest then due shall be paid to the company or to a duly appointed agent or other person authorized to collect such premium within thirty days after the mailing of such notice, the said policy and all payments thereon will become forfeited and void. In case the payment demanded by such notice shall be made within the thirty days limited therefor, the same shall be taken to be in full compliance with the requirements of the policy, in respect to -the payment of said premium or interest, anything therein contained to the contrary notwithstanding; but no such policy shall, in any case, be forfeited or declared forfeited or lapsed until the expiration of thirty days after the mailing of such notice. Provided, however, that a notice stating when the premium will fall due, and that if not paid the policy and all payments thereon will become forfeited and void, served in the manner hereinbefore provided, at least thirty and not more than sixty days prior to the day when the premium is payable, shall have the same effect as the service of the notice hereinbefore provided for.”

There was served upon the insured by mail, directed to 37 Barclay street, N. Y., a notice which is as follows:

George F. Phelan, 37 Barclay Street:
The 4 qr. premium of $17.40 on your policy No. 102,320 falls due at the office of the agent of this company in New York city, N. Y., before noon on the 31st day of December, 1882. The conditions of your policy are that payment must be made on or before the day the premium is due, and members neglecting so to pay are carrying their own risk. Agents have no right to waive forfeitures.
Please present this notice at the time of payment.
Yours respectfully,
J. W. SKINNER, Secretary.
H. M. Munsell,

Gen'l Agent Northwestern Mutual Life Ins. Co., 160 Fulton St., Office Cor. Broadway, New York city.

Prompt payment is necessary to keep your policy in force.”

We think the intent of the statute was to prevent forfeiture on the part of an insurance company unless a notice of non-payment of a premium be given at least thirty days before such forfeiture, but that a notice in advance of the time when the premium would become due made it possible for the company to declare the policy forfeited by reason of non-payment at the day it became due. In other words, that the provision at the end of the section, that the notice in advance of the payment becoming due shall have the same effect as the notice given subsequent to the default, did not mean to give thirty days additional time after the payment was due. The object of the statute was to give careless persons a notice of the time of payment, either in advance for at least thirty days, or that thirty days should be given them after notice of default.

The notice itself was sufficient. It states the amount of the payment, the number of the policy, when it is due and where it is payable.

It did not state in the words of the act that upon default of payment “all payments thereon will become forfeited and void.” It did state that the conditions required a payment at the' day, and that upon default members insured “are carrying their own risks.” That “agents have no right to waive forfeitures, ” and that ‘1 prompt payment is necessary to keep your policy in force.”

The notice fairly notified the insured that unless payment was properly made at the day the policy would be forfeited.

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

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


text:
    Andrew Martin, Resp’t, v. Emanuel Rothschild, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    1. Chattel mortgages—Where they must be filed—3 R. S., (6th ed.), 143, § 11.
    Chattel mortgages, hy 3 R. S., (6th ed.), 143, § 11, must, in the city of Hew York, be tiled in the register’s office; in all other cities of the state and in the towns of the state in which a county clerk’s office is kept., they must he filed in the county clerk's office; and in each of the other towns of the state, in the office of the town clerk thereof.
    2. Same—What provisions not changed by 1 R. S., (6th ed.), 944.
    It is provided by 1 R. S., '6th ed.), 944, that all that part of the duty of the county clerk o£ Kings County, which in the city of Hew York is required to he done hy the register of deeds therein, shall he done by the register of Kings county; and it is fur her provided, that the clerk of Kings county shall not perform .‘■uch duties. Held, that this provision did not change the statute regulation as to filing chattel mortgages in those towns of a county outside of the town in which a county clerk’s office was kept.
    Appeal from a judgment entered upon the verdict of a jury, rendered at the Kings county circuit, and from an order denying a motion for a new trial, upon the minutes of the trial judge.

      Morris & Pearsall, for app’lt; Wm. J Oaynor, for resp’t.
   Barnard, P. J.

The plaintiff claims title to certain personal property by force of a bona fide sale to him thereof, by one Samuel Wardell.

■The defendant claims that Samuel and John Wardell mortgaged the property to him by a chattel mortgage. The Wardells lived in Flatbush, Kings county, and the mortgage was filed in the town clerk’s office of that town. The court held that it should have been filed in the register’s office of Kings county. This was an erroneous ruling. The Revised Statutes provide for the filing of personal or chattel mortgages. In the city of New York the proper place is the register’s office. In all the other cities of the state, and in the towns of the state, in which a county clerk’s office is kept, the instrument must be filed in the county clerk’s office, and in each of the other towns of the state, in the office of the town clerk thereof. 3 R S. (6th ed.), p. 143, Sec. 11.

It would be plain that the office of the town clerk of the town of Matbush was the proper place to file the mortgage, but for the act creating a register for Kings county.

By this act all that part of the duty of the county clerk of Kings county, which in the city of New York is required to be done by the register of deeds therein, shall be done by the register of Kings county, and the clerk of Kings county was forbidden to perform such duties. 1 R. S. (6th ed.), 944.

The act in question did not change the Revised Statutes in respect to those towns of a county outside of the town in which the county clerk’s office was kept. The county clerk of Kings county could not, before the act creating the register was passed, file a Matbush mortgage, and it is only the duty of the county clerk of Kings comity which the register is to perform.

The judgment should be reversed anda new trial granted, costs to abide event.

Pratt, J., concurs._


author: Dykman, J.

text:
    Matter of the Settlement of the Accounts of John Collins, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    1. Appeal—From order when premature.,
    At a reference held in proceedings for the settlement of the accounts of the executors of a testator, one of the executors was requested to read from an account-book of the other executor who had died sometime previous. Objection was interposed by the counsel for the executor and overruled. Thereupon an order was obtained from the surrogate requiring the witness to show cause before him. why he should not be punished for contempt, and on the r, turn day an ord.r was made directing the witness to answer tile question before the referee, and reserving all questions respecting the competency of the p oposed testimony until the coming in of the referee's report. II Id, that an appeal from the order was premature.
    3. Evidence—Interlocutory rulings on the admissibility op, cannot BE REVIEWED SEPARATELY.
    Interlocutory rulings respecting the admission or exclusion of evidence on the trial of a cause, cannot be reviewed separately as they are made.
   Dykman, J.

This is an appeal from an order of the surrogate of Kings county directing a witness to answer a question propounded to him before a referee. The proceeding was inaugurated for the settlement of the accounts of executors of John Oollins, deceased. One of the executors died, and when this proceeding was instituted the surrogate appointed a referee to take testimony and report the same to him. Andrew Gr. Oollins, a son of the testator was appointed an executor, and received letters testamentory on the attainment of his majority, and he was called as a witness before the referee and requested to read from an account book kept by the deceased executor, O’Leary. Objection was interposed by the counsel for the executor which was overruled by the referee. Thereupon an order was obtained from the surrogate requiring the witness to show cause before him on a certain day why he should not be punished for contempt, and on the return day of that order to show cause, the surrogate made an order directing the witness to answer the question before the referee, and reserving all questions respecting the competency of the proposed testimony until the coming in of the referee’s report. From that order we have this appeal which is plainly premature.

Interlocutory rulings respecting the admission or exclusion of testimony on the trial of a cause cannot be reviewed separately as they are made. The order appealed from directs tho witness to answer a question before the referee, and does no more and has no greater effect than the ruling of the referee in favor of the admission of the testimony. If the ruling be erroneous, the error is to be corrected on appeal from the final decree, when all the questions presented by the record will fall legitimately under review.

The order should be affirmed with ten dollars costs and disbursements.


text:
    Margaret Shiner, Admr’x, etc., Resp’t, v. Horace Russell et al., Rec’rs, etc., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    1. Master and servant—Negligence.
    If an act clone or omitted is in the execution of the proper details of the principal work which has been by the master directed to be done, such execution of proper details is the act of the servant, no matter how high the rank of the subordinate who performs the labor.
    3. Same—Liability op master.
    The master is not liable to a servant fcr damages arising through the negligence of a iel'ow servant. - But where the master’s negligence is the proximate cause of an injury to a servant, he is not relieved from the liability by the fact that the negligence of a fellow servant co-operated in producing the injury.
   Pratt, J.

This case brings up for review only questions of law, as the appeal is from the judgment only.

The defendants claim that upon the plaintiff’s case a non-suit should have been granted, upon the ground that the case did not show an absence of contributory negligence in the deceased. The circumstances surrounding the accident were minutely detailed and were such that the jury might well find that there was a preponderance of evidence against any negligence 011 the part of the deceased. The darkness and storm that prevailed on that night rendered it difficult for the deceased to see far ahead of his engine. The orders and rules under which he was running, the fact that he had no control of the speed of the train, were all material circumstances calculated to aid the jury upon this issue. The order to deceased to run his train “regardlesss of all eastbound trains ” might well have caused him to relax somewhat his vigilance in watching for trains coming in the opposite direction, and in keeping his engine under absolute control. He was bound to obey the order of the train dispatcher, and, so far as appears, he did so.

The claim that there was a breach of rule Ho. 10, upon the part of some of the engineers of this train does not aid the defendants, as it appeared that the deceased was not responsible for the speed of the train and had no control of the air brakes. His duty was to look out, and if he saw danger ahead, to give the signal and reverse his engine; that he did. In any view of the case it was a proper question to be submitted to a jury.

The defendants complain that they were not allowed to show by expert testimony what was the meaning of the holding order, viz.: “Do not pass Canajoharie without further orders.” This was immaterial as there was no question as to the meaning of the order, and if it was doubtful, the question would be, how the employees understood it at the time. If the orders were so blind that it required an expert to tell their meaning, it furnished no defense to show how an employee ought to have understood them at the time. It was the direct act of the defendants, through their agent, in giving improper, unwise and indefinite orders, as the jury have found, that caused the injury. It was because the orders were not understood and were misconceived that the collision happened.

The serious question, however, in this case is, whether the accident was the result of negligence of a fellow-servant of the deceased. The general rule is, that if the act done or omitted is in the execution of the proper details of the principal work which has been by the master directed to be done, such execution of the proper details is the act of the servant, no matter how high the rank of the subordinate who performs the labor. If, therefore, there were proper rules for the management of all the trains on the occasion in question, and the accident occurred through the negligence of any other employee in the execution of these proper rules, the plaintiff cannot recover. But we do not think the case falls within this rule.

It was the duty of the defendants not only to provide proper rules for the management of their trains, but to take every reasonable precaution to bring such rules and orders to the knowledge of all the employees to be affected thereby.

The superintendent who gave the orders for running the trains must be regarded as occupying the place of the corporation in respect as well to the orders as to the omission to take proper precautions for carrying them into effect. Filke v. Boston and Albany R. R., 13 Am. Rep., 545.

The jury have found, under a proper charge, that the accident occurred through the issuance of improper orders by the superintendent, without proper notice to the different train men.

The fact that the negligence of some of the fellow servants of the deceased co-operated with the negligence of the defendants in producing the injury, does not relieve the latter from liability. Fuller v. Jewett, 80 N. Y., 46; 95 id., 546.

The jury has found that the defendants’ negligence was the proximate cause of the injury.

This case is so analogous to the cases of Sheenan v. N. Y. Central R. R. and Dana v. Same (reported respectively in 91 N. Y., 332, and 92 id., 639) that any comment seems unnecessary.

The order was such as justified the jury in believing that the orders were improper, in that they were uncertain, indefinite and unintelligible, and that no precautions were taken to see that they were properly understood and acted upon. '

That the rules and orders were not clearly understood and acted upon seems to be established beyond controversy.

There are a number of exceptions to the rulings of the court upon the trial and to the judge’s charge. We do not think there was any error committed in the admission or rejection of testimony, and as to the charge, it covered every material point in the case, and was as favorable to the defendants as the proofs warranted.

Judgment affirmed, with costs.


text:
    Joseph D. Muldownev, Resp’t, v. The Morris and Essex R. R. Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    1. Real estate—Action against a co-tenant who has received more than his just proportion—Code Civ. Pro., § 1666.
    J. D. died, leaving him surviving his widow and two children. At the time of his death he was seized in fee of real property, which descended to his children as “equal tenants” in common subject to the dower right of their mother. Thereafter, one of the children, a daughter, was married to this plaintiff, and a child was born of the marriage, which lived several months. Subsequently the daughter died. Thereafter, the widow of the original owner, and the other child, conveyed the premises to these defendants. The plaintiff demanded of the defendants that they pay him the rental value of his interest in the premises from the time of the conveyance to them. They refused to allow the plaintiff to use or enjoy his interest in the premises, to let him into possession, or to pay him any sum for use and oc upation. Held, that the parties were tenants in common, and that an action nrght properly he maintained hy this plaintiff against the defendants, under Code Civ. Pro., § 1666.
    3. Same—Pleadings.
    Under the present system of pleading, the plaintiff must state the facts, and pray for such relief as he supposes himself entitled to, hut he is not to he turned out of court because he prays for too much or too little, or for wrong relief.

      Hamilton Odell, for app’lt; Frank Hasbrouck, for resp’t.
   Pratt, J.

This is an appeal from a judgment entered against the defendant upon a decision at special term, and the case discloses the following facts: John Dunn, of

Morris county, New Jersey, died in 1857, intestate, and leaving him surviving his widow, Margaret Dunn and two children, John J. and Mary. At the time of his death he was seized in fee of a parcel of land situated at Madison, in New Jersey, which is described in the complaint, and which contained 2,691 square feet. The said premises descended to his children “as equal tenants in common, subject to the dower rights of their mother.”

In 1873 Mary Dunn, the daughter, was married to the plaintiff. A child was born of the marriage in December, 1875, which died in July, 1876. Mrs. Muldowney died intestate in September, 1876.

In 1878 Margaret Dunn, the widow, and her son, John J., conveyed the said premises to F. S. Lathrop, and in January, 1879, Lathrop conveyed them to the defendants, who who have ever since been in quiet and undisputed possession thereof, “ except that plaintiff has asserted and claimed an interest therein from about two years ago.” The said premises, when conveyed to the defendant, were wholly vacant and unimproved, but are now covered in part by a depot building, erected and occupied by the defendants for the purposes of their business.

It was not until the summer of 1884 “that plaintiff discovered and knew that he had an interest in the said premises, and plaintiff did not notify the defendant that he had, or claimed to have, any estate or interest in the said premises until during the summer of the year 1884.” It is not claimed that the defendants had any prior knowledge or notice of the plaintiff’s said estate or interest.

The plaintiff’s demand upon defendants was not that he should be let into possession, but that defendants should pay him the rental value of his interest in the premises from the date of the conveyance by Lathrop to defendants in January, 1879.

The defendant’s first objection is, that the form of action is improper, that it cannot be required to respond in rent, or for an accounting, etc., under the facts stated in the complaint.

It is plain that if the plaintiff can have no relief in this action, he is without remedy, for he has stated all the facts-constituting his cause of action, and answer has been interposed, and the issues tried. To so state his facts was all the law required of him, and an answer having been filed, and case tried, it was competent for the court to permit the plaintiff to take any judgment consistent with the case made by the complaint, and embraced within the issue.

The object is to do complete justice between the parties when they both have an opportunity to be heard, irrespective of any theories the parties may entertain when they file their pleadings.

Under the present system of Code pleading, the plaintiff must state the facts and pray for such relief as he supposes himself entitled to, but he is not to be turned out of court because he prays for too much or too little or for wrong relief.

In this case the plaintiff prayed for enough, but if he prayed for too much it is of no consequence.

The court below has found title in the plaintiff, as alleged, and that the land is in the exclusive possession of the defendant. “ That the defendant has at all times and does-refuse to allow the plaintiff to use and enjoy his interest in the premises, to let him into possession or to pay him any sum for use and occupation.” The defendant occupies the whole of said premises in such a manner that plaintiff can have no beneficial use, and that no one, as it is now situated, can use it except a railroad for railroad purposes, and that it is impossible to set off a third or a half or any fractional part, and that there can be no joint occupation of said premises.

The court has further found that defendant has received since January 1819, the total amount of the rental value of said premises and more than its share.

If these findings are sustained the judgment ought to be affirmed, but if we assume that the findings of fact are not all sustained by the proof, we still think there is enough in the undisputed facts of the case to entitle the plaintiff to hold the judgment he has obtained.

It must be conceded that the court had jurisdiction of the parties and the subject matter involved.

The answer simply denies, upon information and belief, that plaintiff has any interest in the premises, and sets up the title under which it holds. The answer admits by not denying it, that defendant has never allowed and will not allow plaintiff to occupy any part of said premises, and has never paid him any rent for the use of said premises.

The situation, as claimed by the defendant, is as follows: The plaintiff cannot sue in ejectment as the defendant’s occupation is plaintiff’s occupation. Code of Civil Procedure, § 1515. That he cannot maintain partition as his title is simply life tenant, while the defendant owns the remainder in fee. Code, §§ 1538, 1539.

That he cannot sue for an accounting as the defendant has received no rents, nor for use and occupation as there is no relation of landlord and tenant, and so the plaintiff can have no remedy whatever.

The plaintiff claims that the defendant is the owner of the whole property subject to a right possessed by the plaintiff in the nature of an annuity charged thereon, which the court has fixed at $41.60.

But whatever may be the technical relation of the parties,' the plaintiff has made out a case entitling him to relief. It is not fatal to his claim that no precise authority can be found in this state authorizing such a judgment.

It was under the common law the practice in England when a suitor desired redress for a wrong for which there was no established remedy, to apply to the proper court to frame a writ that would give him a just remedy, and that form of action known as “action upon the case” was adopted to meet a large number of such cases. Again, courts of equity were established to afford a remedy where the technical rules of law were insufficient to administer justice.

The supreme court of this state under the constitution has “general jurisdiction in law and equity” and exercises, under such rules of practice as the legislature has established, the common law and chancery powers exercised in that state prior to the adoption of the constitution of 1846. The plaintiff is properly before the court, its jurisdiction is not questioned, and no technical rule of practice forbids its doing justice between the parties. It is a clear wrong to deprive the plaintiff of the enjoyment of his property without compensation, and to deny the power of the court to give the plaintiff relief is to challenge its power to do justice. But we think this case can be relieved of all embarrassment by holding that the plaintiff and defendant are tenants in common, and that the action can be maintained under sec. 1666, of the Code of Procedure, “tenants in common are such as hold lands or tenements by several and distinct titles, but occupy in common, the only unity recognized between them being that of possession.” They are accountable to each other for the profits of the estate, and if one turns another out of possession, an action of ejectment will lie against him. They may also have reciprocal actions for waste against each other. 2 Black. Com. 191. The action of account now lies when one tenant has received “more than his just proportion” of the rents. Code, § 1666.

Whether an accounting will he where the tenant has not received rent, has never been decided by the court of appeals, but the supreme court has, in several instances, decided that such an action cannot be maintained, but the cases are all easily distinguished from the present case and cannot be regarded as authority for the decision óf the case at bar.

The leading case is Woolever v. Knapp (18 Bach. 265), which was decided by Mason, J., in 1854. The decision of the case is put entirely upon the similarity of our statute to the English statute, and the construction put upon the latter by the English coúrts is adopted as the construction of our statute. The language of the reasoning of the English cases is adopted by Judge Mason as follows, viz.:

11 The effect of allowing an action in such a case would be that one' tenant in common, by keeping out of actual occupation of the premises, might convert the other into his bailiff; in other words, prevent the other from occupying them except upon the terms of paying him rent.”

To this it may be replied, why not, if he received more than his share ? If he kept his co-tenant out and received the whole benefit, why not pay his co-tenant his just proportion ?

The same, however, decides that the statute applied only to cases where the defendant received rent, and not to cases where he solely occupied the premises. The cases holding the same doctrine are: Dresser v. Dresser (40 Barb., 300), Wilcox v. Wilcox (48 id., 327), Joslyn v. Joslyn (9 Hun, 388), Roseboom v. Roseboom (15 id., 309).

These cases all cite and follow Woolever v. Knapp, and none contain any new reasoning upon the subject. These cases can all be distinguished from this case.

. First. The joint or common premises in every case were farming lands open to the occupation and free to the enjoyment of all the co-owners.

Second„ The co-owners in each case were seized of parent estates of co-ordinate rank.

Third. In all the cases there was a failure of proof ■ of demand on the part of the complaining tenant to be allowed to enjoy the premises.

In Woolever v. Knapp, the question is stated to be: “ Whether one tenant in common who possesses the entire premises without any agreement with the others as to his possession or any demand on their part to be allowed to enjoy the premises with him, is liable to account.”

In Dresser v. Dresser it is said: “For aught that appears the plaintiff might at all times have occupied the premises jointly with the defendant if he had chosen to do so.”

In Roseboom v. Roseboom, it is said: “ Defendant might remain in possession so long as he did nothing to prevent his cotenant from occupying with him.” In all the cases thus decided it may also be added that the equities were against the party claiming an account for rents.

Here the defendant excluded the plaintiff and chose to occupy the premises, thus by the use and enjoyment of the premises receiving the rent. The benefit or rent thus received the court has fixed, and the law assumes that defendant is the plaintiff’s bailiff to this amount. If the defendant elects to receive rent by the use of the premises, what reason is there for holding that he shall not pay his co-tenant his just proportion?

This case is somewhat analogous to that of McCabe v. McCabe (18 Hun, 153). That was action of partition between tenants hi common. The defendants in their answer asked that the plaintiff account for his sole possession of the premises and for stone quarried therefrom. With regard to quarrying stone, the court says: “It is a very different act from the occupation of the land for its cultivation.” The judge further says: “ It may be necessary to adhere to the rule that for mere occupancy the co-tenant is not hable to account; but there is no reason to extend that rule to a case where the co-tenant actually consumes or takes off and disposes of a part of the property held in common. In the case at bar the defendant has appropriated the whole of plaintiff’s to its own use.

We think the findings of fact are abundantly sustained by the proofs, and that the facts do not bring the case strictly within the principle laid down in Woolever v. Knapp, and that the judgment is right unless the rents should have been computed from the summer of 1884, when the demand was made by the plaintiff to be let into possession, instead of the date of January 1, 1819.

It is evident that a demand would have been futile, and that a failure to make it has not misled the defendant or put it in any worse condition in respect to the premises.

Judgment affirmed with costs.

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


text:
    William Jagger, v. John H. Bird, as Ex’r.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    1. Equitable Conversion.
    The defendant’s testator and her brother, with another person, owning an undivided half, were tenants in common of a mill, upon the destruction of which by Are, insurance money was collected and deposited by the parties in a savings Lank. The share belonging to defendant’s testator and her broilier was subject to the life interest of their father. By will, the defendant’s testator gave her share in the mill to her brother. Ilelcl, that it was within the power of the owner to convert the insurance money into personal property, even if it were real property, after it was received from the insurance company.
    2. Same—What furnishes presumption op.

      Held, that the deposit of money and the length of time during which it remained on deposit, furnished a presumption that the parties intended to do so.
    3. Joint ownership.

      Held,, that as between the children, the deposit was one of joint ownership, and that after the father gave up the insurance money to them he had nothing more than an equitable right against them for interest on the money received.

      B. K. Payne, for appl’t; George F. Canfield, for resp’t.
   Barnard, P. J.

At the time of the death of Mary Green there stood on deposit in the Riverhead Savings Bank to the credit of her brother and herself the money in question “subject to draft by both.”

The deposit was the amount of a fire loss upon a policy of insurance upon an old mill which was owned by the parties in common with one Luce, who owned an undivided one-half.

The half of Mary Green and her brother was subject to the life estate of their father therein, who was, at the time of the fire, over eighty years of age. The parties did not rebuild or replace the mill, but deposited the money in the savings bank in the manner stated.

The deposit was made with the assent of the father. The father died and the brother of Mary Green, William, is his executor. After the deposit had remained in the bank some four years Mary Green died, and she is represented by the defendant Bird. By her will she gave her interest in the old mill to her brother. It was within the power of the owners to convert the insurance money into personal property, even if it was real property, after it was received of the insurance company. Presumptively they did this from the manner of deposit, and from the length of time the deposit remained untouched. This accords with the surrounding circumstances. The mill was old, and' the life-tenant was very old, and it appears that he consented to look to his children rather than to conduct the mill. The other owner had taken his share of the insurance, and he appears to have not intended to rebuild. The finding of the trial judge that the deposit was personal property is fully sustained by the evidence.

The father, after he gave up the insurance money to his children, had nothing more than an equitable right against his children for the interest on the money received.

He had no interest in the deposit in the absence of fraud. As between the children the deposit was one of joint ownership. Martin v. Funk, 75 N. Y., 142; Willis v. Smith, 91 id., 298.

It was a joint ownership of the deposit as personal property. Hastings v. West. Fire Ins. Co., 73 N. Y., 141.

The judgment should be affirmed, with costs.

Pratt, J.

The deposit of the fund in the savings bank in the joint names of the plaintiff and Mrs Green, raises the presumption that it belongs to them in equal shares.

We find no evidence to repeal this presumption, and believe, with the judge at special term, that the owner of the life estate waived his claim in favor of the heirs.

Nor do we find any evidence that the heirs regarded the fmid in bank as in any way different from other personal property owned by them. No decision quoted goes so far as to hold that a policy of insurance will continue in favor of the heir, unless expressly made for his benefit. And if he could not claim under a policy issued to his ancestor, still less can he as heir claim the fund where the ancestor collected the indemnity.

The cause was correctly decided, and judgment must be affirmed, with costs. _


text:
    Stephen McGarragher, Resp’t, v. William Gaskell et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    1. Jury—When a question may be properly submitted to.
    A question is properly submitted to the jury when the evidence upon it is such that reasonable men may well differ as to the inference to be drawn from it.
    3. Same—Refusal to submit case to—When warranted.
    To warrant a refusal to submit a case to a jury it must appear, after conceding the testimony for the plaintiff to be true, and giving him the benefit of all legitimate inferences therefrom, that a verdict in his favor cannot be upheld.
    3. Negligence—Partner not liable for injury arising through
    NEGLIGENCE OF A COPARTNER.

      Held, that where an injury to a servant was occasioned by the negligent act of one of his employers, the copartners of the wrong-doer were not liable.
    Appeal from a judgment entered upon a verdict rendered by a jury at the Kings county circuit, and from an order denying a motion for a new trial upon the minutes of the trial judge.

      Estes & Barnard, for app’lts; James D. Bell, for resp’t.
   Pratt, J.

This is an appeal from a judgment entered upon a verdict rendered in favor of the plaintiff for $1,000, and also from an order dated November 18, 1885, denying defendants’ motion for a new trial upon the minutes, in an action for negligence. On October 10, 1884, plaintiff, a journeyman blacksmith, was in the employ of the defendants, then boss blacksmiths in New York city. He was engaged in welding a foot upon a stanchion, both being of iron, when the defendant, Greenlie, standing to plaintiff’s left and rear, suddenly, and without warning, threw what is called “cherry welding compound,” a mixture of borax and iron-filings, upon the surface of the iron, whereby a sputtering-flux was formed, and one of the liquid particles flew into plaintiff’s eye, so injuring it that he has lost the • sight of it.

The defendant strenously contends that the proof shows that the injury received by the plaintiff was one incident to the employment, and of which he assumed the risk. It is true he assumed the ordinary perils which belonged to the work itself, or naturally grew out of it, but there was evidence tending to show, and the jury have so found, that suddenly throwing the compound described on hot iron, without warning, was unusual, and well calculated to produce such an injury. Had a proper warning been given, it is possible the plaintiff might have taken some precaution to avoid the injury. But defendant claims that the proof shows that sparks are liable at all times to fly when welding iron, and that it is not established that the using of the compound was the cause of the accident, and even if it was, the defendant had a right to use it, as its use was so common and natural that no warning was required to be given. The difficulty with this contention is, that the jury have found against it upon disputed facts, and the verdict is not so manifestly against the weight of evidence as to justify setting it aside. We think there is evidence from which the jury were authorized to find that plaintiff was injured by reason of the compound having been used in the manner described.

This question was properly submitted to the jury,_ as the evidence was such that reasonable men might well differ as to the inference to be drawn from it. Thurber v. Harlem R. R. Co., 60 N. Y., 331; Stackcus v. N. Y. C. and H. R. R. R. Co., 79 id., 464; Wait v. Agricultural Ins. Co., 13 Hun, 371.

To warrant a refusal to submit a case to a jury, it must appear, after conceding that the testimony for plaintiff is true, and after giving him the benefit of all legitimate inferences therefrom, that a verdict in his favor cannot be upheld.

The acts of defendant, Greenlie, were shown to be unusual and unexpected, and were such as justified an inference by the jury, if they believed the evidence introduced by the plaintiff, that the defendant did not act with due care.

The charge was full, fair and unexceptionable, and the damages cannot be said to be excessive.

The exception to the ruling that the copartners of Greenlie could not be held hable was not well taken. Shearman & Red. on Negligence, § 39; Parsons on Partnership, (3d ed.)„ chap. 11, 163; Strober v. Elting, 97 N. Y., 102.

We have examined the several exceptions taken upon the trial and to the charge, but find none exhibiting such error as to warrant the'granting of a new trial.

Judgment and order appealed from affirmed, with costs,

Present: Barnard, P. J.; Dykman and Pratt, JJ.


text:
    James Jourdan, as Receiver, etc., Resp’t, v. Long Island R. R. Co., App’lt.

      (Supreme Court, General Term,, Second Department,

      Filed December 14, 1888.)

    1. Ultra vires—When the plea cannot be interposed.
    Tlie plea of ultra vires will not, as a general rule, prevail, whether interposed, for or against a corporation, when it will not advance justice, bat, on the contra y, will accomplish a legal wrong-, (following Rider Life Rapé Co., v. Roach, 97 N. Y., 378).
    3. Same—Railroads may contract to use tracks interchangeably.
    It is within the proper powers of a railway company to enter into a cob-tract with another railway company for the interchangeable use of the tracks of the two companies.
    3. Same—When railways will be deemed to acquiesce in contract. Where the defendant knew it was running a notorious line of railway,, and in turn permitting the plaintiff to operate another on its track fora, year, it is chargeable in law v ith knowledge of the contract under whici. these matters ot common publicity concerning its own property we;e takisrg place.
    Appeal from a judgment entered on a verdict of a jury in favor of plaintiff.

      William C. Be Witt, for respt; Hinsdale <& Sprague, for applt.
   Pratt, J.

The contract is binding upon the appellant; both by the authority of the receiver and the action of its officers. We have held that a receiver may continue and complete an elevated railway in the streets of a city where its construction had partly taken place before his appointment (Moran v. Lydecker, 27 Hun, 582), and the authorities clearly sustain the proposition that the interchangeable use of the tracks of the two companies provided for in the contract in this suit is among the common and proper powers of a railway company. The receiver appointed to, operate the railway of the defendant was warranted, under the order of the court, in making the contract.

In addition, the company was not extinguished by the appointment of a receiver (Kincaid v. Dwinelle, 59 N. Y., 548), as prescribed by the express terms of the contract itself it became binding upon the company when executed by its president and secretary who affixed the corporate seal.

The testimony of Mr. Hinsdale, who joined in executing the contract, to the effect that no resolution had been passed by the board of directors authorizing the making of the contract, is rendered wholly unavailable by the obvious knowledge and acquiescence of the company. It seems that the entire contract was carried out for a period of about one year. That the defendant knew it was running a notorious line of railway, and in turn permitting the respondent to operate another on its tracks for this protracted period is too apparent for discussion, and it is, therefore, chargeable in law with knowledge of the contract under which these matters of common publicity concerning its own property were taking place.

Says the court of appeals in Rider Life Raft Co. v. Roach [97 N. Y., 381): ‘‘ Another complete and perfect answer to the objection urged is that the defendants having reaped the benefits arising from the contract, cannot, under the plea of ultra vires, seek to defraud the other parties. Even although it may have been made without expiess authority, the contract must be allowed to stand as the plainest rules of good faith demand. The rule is well settled that the plea of ultra vires would not as a general rule prevail, whether interposed for or against a corporation when it would not advance justice, hut on the contrary would accomplish a legal wrong.”

We do not think the court erred in excluding the evidence by which it was sought to be shown that the president of the company respondent, who was dead, had in some conversation with the president of appellant, assented either to a modification of the contract or to a course of procedure in violation of its provisions. It is hard to appreciate the force of this point as presented, because the counsel for appellant in arguing that a corporation may not be bound by the signatures of its president and secretary, and by its • corporate seal duly affixed to a written instrument, would seem to have precluded himself from maintaing that a corporation might be bound by a verbal understanding with its president in direct contravention of its rights as fixed by its constituted authorities in writing under seal. However, a careful scrutiny of the pleadings discloses no such defense as a variance or modification of the contract, nor that a new contract was made. On the contrary, the. answer sets up that the defendant refused to carry out the contract in suit.

The learned justice was right in excluding the evidence on this ground, and in our judgment, it was inadmissible even if it had been pleaded.

A wide latitude was given to the expert testimony of the defendant, and no questions were overruled, except such as called for answers far beyond the issues of the range of such proof. Ferguson v. Hubbell, 97 N. Y., 507. In view of the fact that the defendant was to receive a percentage on the gross earnings of the line of railway, we think the trial justice correctly disposed of the questions as to whether or not such line could be profitably operated in competition with existing railways on the ground stated in his charge to the jury.

It is idle to argue that the plaintiffs’ deeds were inadmissable when its title was disputed by the pleadings, or to assert that the verdict may have been influenced by a consideration of the character of the property, when the character of the property was excluded from any such purposes, and it is plain from the rulings of the court, and the verdict of the jury, in view of all of the facts in evidence, that no such consideration entered into the verdict.

All the other rulings of the court, to which exceptions were taken, were upon matters rightfully a part of the res gestae, and for the jury to consider.

No exception was taken to the charge, requiring attention, unless it be that which refers to the estimate of damage. The position of the trial court upon this subject is more than sustained by the principle laid down by the court of appeals in Wakeman v. Wheeler & Wilson Manufacturing Co. (101 N. Y., 205). Indeed it would appear that the rule of damages less favorable to the defendant than those adopted by the court in the conduct of the trial, might have been supported upon the highest authority.

We think the judgment should be affirmed with costs.


text:
    William Le Count, App’lt, v. Sarah E. Greenley, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    1. Agency—Will not be presumed from tile relationship of parties.
    The defendant owned and resided upon premises which her father put into the hands of this plaintiff to sell as a broker. The proof upon an action brought to recover commissions for services rendered as such, failed to establish the fact that the father was authorized to act in the matter for the defendant. Held, that relationship was not a ground upon which agency could be assumed.
    2. Same—What does not constitute ratification.

      H. Id, that the knowledge upon the part of the defendant that theplaintiif was a real estate broker, and that he gave a permit to one to view the premises, was not a ratification of an assumed agency.

      Appeal from an order of the county court of Westchester county setting aside a verdict in favor of plaintiff and granting a new trial.

      Charles H. Noxon, for app’lt; Wm. G. Nicoll, for resp’t.
   Barnard, P. J.

The case for the plaintiff rested entirely upon the fact that Thomas L. Disbrow the father of the defendant was her agent. The defendant owned lands and Disbrow placed them in the hands of the plaintiff to sell as a broker.

The plaintiff gave a permit to one Alden to see the premises and Alden went and inspected them.

The defendant lived in the house with her father and mother and was aware that Alden was looking at the property with a view of purchasing it. The relationship of the parties and circumstances proven by plaintiff render it extremely probable that Disbrow was acting with the assent and perhaps with the authority of the defendant, but as proof of the fact it fails. Relationship is not a ground upon which agency can be assumed. Ritch v. Smith, 82 N. Y., 627.

The relationship and the surrounding circumstances are equally consistent with an agency and an assumption of agency in Disbrow which he did not have.

The question is set at rest by the testimony of the defendant herself who was called by the plaintiff and she testified as follows upon the question: “I never authorized my father to act as my agent in any respect.”

The knowledge upon the part of the defendant that the plaintiff was a real estate broker and that he gave a permit to Alden to see the premises is not a ratification of an assumed agency. She was never told of her father’s unauthorized-act and after knowledge proceeded to adopt the same.

She could permit an applicant to examine her land at plaintiff’s request without carrying with it a ratification of an assumed agency of which she is not shown to have had knowledge.

The judgment should be affirmed with costs.


text:
    Louisa K. Hall, App’lt, v. Harvey Hall, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Divorce—Judgment for—Jurisdiction.
    The jurisdiction of the probate court of Utah is local, and the plaintiff in a divorce suit must reside in the county of the probate judge in such action. Where the proof showed that the plaintiff never ceased to reside in this state, that the marriage was entered into in this-state, and there was no proof that the husband ever lived in Utah, but that he made an appearance in order to evade the law of New York state, and annul a New York marriage, for reasons not sufficient under the New York 1"W Held, that such a consent did not give the Utah court jurisdiction of either.
   Barnard, P. J.

The jurisdiction of the probate court of Utah is local. The plaintiff in a divorce suit must reside in the county of the probate judge in such action. The proof is undisputed that the plaintiff in this action was the plaintiff in the action against Caverly, and she never ceased to reside in this state. The Caverly marriage was entered into in this state. There is no proof that her husband Caverly ever lived in Utah. It plainly appears that the petition was filed by a resident of New York, and that an appearance was made by the husband in order to evade our law- and to annul a New York marriage for reasons not good in this state. Such a consent did not give the Utah court jurisdiction of either. Davidsburgh v. Knickerbocker Life Ins. Co., 90 N. Y., 526.. The case of Ruger v. Heckel (85 N. Y., 483) only decides that the defendant could not file a bill to annul the Caverly divorce and pronounce his marriage with the plaintiff void. That when a court had jurisdiction of the parties and the subject-matter and pronounced a decree of divorce upon false proof, a future husband of the divorced wife had no legal right to say he was agreed.

The judgment should be affirmed, with costs.

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


text:
    Russel Coe, Resp’t, v. Robert C. Davidge, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    1. Partnership—Principal and agent— Termination of the relation.
    The plaintiff agreed to deliver f rtilizers to the defendant, who was to sell them, and the net profits were, according to the agreement, to be shared equally by the parties. Held, that whether the agreement constituted a partnership between the parties, or merely created the relation of principal and agent, no limit of time having been placed by the arrangement, it might be terminated at any time at the option of either party.
    3. Same—Termination of—Receiver—Injunction.

      Held, that should the agreement constitute a partnership between the parties, upon the termination of that relation, it would be consistent with ordinary usage to appoint a receiver and grant an injunction against the further use of the partnership name and the continuance of the business.
    3. Principal and agent—Termination of relation—Receiver—Injunction.

      Held, that in case the relation created between the parties was that of principal and agent, the pap rs showing that property of the plaintiff remained in hands of the defendant upon the cessation of that relation, it would be proper and just to appoint a receiver, and that the continued use of the plaintiff’s name as the principal of the defendant would be such a wrong as demanded an injunction.
   Barnard, P. J.

There is no real conflict as to the facts. Coe agreed to deliver fertilizers to the defendant. The defendant was to sell them, and after the cost of the property, interest and expenses, the parties were each to have half the profits. Whether it was a partnership between the parties in the. business inter se or was only a relation of principal and agent, it was in the power of either to terminate the arrangement at will, as there was no limitation by the terms of the agreement. The defendant rather claims a partnership, and under that relation, when the parties terminate the agreement, it is almost a matter of course to grant a receiver and an injunction against the continued use of the partnership name and the continuance of the business itself.

If the relation was that of principal and agent, then the papers show the defendant has property of the plaintiff, the proceeds of the business in which property the plaintiff has an interest to the extent of one-half of the profits represented bjr the same. It is proper and just that a receiver be appointed if this be the fact. The continued use of the plaintiff’s name as the principal of the defendant is a wrong done by the defendant which calls for an injunction.

The judgment should be affirmed, with costs and disbursements.

Pratt, J.

Whatever may be the legal relations of the parties the facts justified the issuing of an injunction.

That there were outstanding debts to be collected the proceeds of which were claimed by both parties, and books and notes claimed by both parties, and a struggle to get and keep possession of them together with other disputed facts authorized the order made below.

. I think the plaintiff has made a prima facie case of principal and agent, and that the defendant has in his-possession property of the plaintiff which he refused to surrender and for the full protection of his rights and in order that a judgment may be effectual an injunction is necessary. It is largely a matter of discretion whether or not to grant an injunction in view of all the circumstances and the probable result of the litigation.

Such discretion was properly exercised in this case. That part of the order appointing the receiver was likewise proper. The appointment was made to take possession of the notes, accounts, and other property which were the subject of the action, and alleged to be in danger of being lost.

On the whole case the order should be affirmed.


text:
    Robert L. Carpenter, App’lt, v. Orville O. Jones, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Evidence—Letters explanatory of transactions are relevant.
    Where the question at issue was whether certain of the defendants had in their hands property belonging to others of them, which ought to be applied to the satisfaction of a judgment held by the plaintiff: held, that letters of the defendants to each other explanatory of various transactions, between them with regard to the property, were admissible in evidence.
   Pratt, J.

This case involves a large number of isolated facts, but the question is whether the defendants, Cole and Robbins, now have in their hands property belonging to the defendants, Orville 0. Jones, which ought to be applied to the satisfaction of a judgment now held by the plaintiff. On the trial at special term the complaint was dismissed. The plaintiff now claims that errors were committed in. rulings upon the trial, and also that the findings of fact are against the weight of evidence.

As to the first, which related to the admission in evidence of certain letters written by Orville to Edward Jones prior to the transfer of the property by Orville, which, it is claimed, was fraudulent.

We think the letters were competent. One question to be settled and tried, was whether Orville was indebted to Edward at the time the several transfers were made; another, whether such transfers were made as security for such indebtedness, and lastly, whether there was an intent on the part of Orville to defraud his creditors. These letters . was explanatory of the transactions as they occurred, and contained acknowledgements of indebtedness on the part of Orville to Edward.

It was incumbent upon Edward to prove that he was a bona fide creditor, and these letters had a direct bearing • upon this question as well as upon the issue of the intent • of Orville. The letters all related to the one transaction of securing the indebtedness of Orville to Edward, and were ■ written while the negotiations were being carried on, and 5 to characterize them. For example, take Exhibit 1, dated April 16, 1870, and read it in connection with Exhibit 7, dated April 7, 1872, and it will be seen that the conveyance of the property therein referred to was a mortgage • and security for the debt. Each of the letters objected to, was explanatory of a transaction then in process of execution, or in acknowledgemeut of the then existing debt, and ■ thus a part of the transaction and competent.

The evidence is abundant to show tnat Orville was indebted to his brother Edward, and that he intended to secure such indebtedness in preference to his other creditors.

The court below has found that there never was any intent on the part of Orville to defraud his creditors, and that the mortgages sought to be reached by this action had both been applied as security and payment of the debt owed by said Orville to Edward. We think there is sufficient evidence to sustain the findings, and that the judgment must ' be affirmed with costs.

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


author: Pratt, J. Dykman, J.—The

text:
    Sherwood Sterling, Resp’t, v. The Metropolitan Life Ins. Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    3. Pleadings—Reply—When irregular—Code Civ. Pro., § 516. '
    A plaintiff lias no right to reply under Code Civil Procedure, § 516, except when required by order 06 the c urt, and without such order a reply would be irregular, and liable to be stricken out on motion.
    S. Same—Order requiring a reply—Code Civil Pro., § 516.
    An order requiring a reply can be granted only upon the application of the defendant.
    8. Same—Waiver of right to order.
    Where the defendants delayed making a motion to compel a reply until the action was referred and noticed for hearing: Del that the failure to raise the objection that a reply was necessary at the argument of the motion for reference, was a waiver of the right.
   Pratt, J.

The appellants are in error in claiming that plaintiff had any right to reply, unless required to do so by order of the court. See Code, § 516. And the order requiring reply could only be granted upon application of defendant. Id.

Had plaintiff replied without being required so to do by order, his reply would be irregular, and be stricken out on motion. Dillon v. R. R. Co., 46 N. Y. Sup., 21.

Defendants were in position to know when they served their answer whether they desired a reply. ' They waited thirty-three days, and until the cause had been referred and noticed for hearing before making any motion to compel reply. That was too late, and fairly exposed them to the objection of seeking delay. Not raising the objection that a reply was needful, when the motion for reference was argued, was a waiver of such right, if there was any. But, irrespective of any question of waiver or loches, the order appealed from was right. _

_ An inspection of the pleadings does not disclose any reason to suppose that a reply would change the position of the parties. The allegations of new matter in the answer are in such general terms, and contain so many allegations of mixed law and fact, that a plaintiff could have no difficulty in denying them, if so minded.

To grant defendant’s motion would cause delay, with no prospect of benefit; and it was properly denied.

.Order appealed from affirmed, with ten dollars costs and disbursements.

Dykman, J.—The

plaintiff moved for an order of reference in this action, which was granted; and the defendant moved for a reply to the answer, and the motion was denied; and there is an appeal to the general term by the defendant from both orders.

Under the rules of pleading now prevalent, the answer requires no reply, and the defendant cannot obtain admissions or denials by a reply under the order of the court.

The action is peculiar, and the trial may very well involve the examination of the whole account between the parties, as it is contained on the books of the defendant.

Both orders should be affirmed, with ten dollars costs, besides disbursements.


text:
    Matter of the Judicial Settlement of the Estate of Charles B. Gray, Deceased—Claim of Sarah B. Lockwood, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Reference of disputed claim—Report, when binding—How reviewed.
    The appellant held a claim as she alleged against the estate of Charles B. Gray. The administrator rejected the claim, it was referred under the statute and it appeared that the appellant had endorsed and become surety upon papers made by Charles B Gray and G. C. Lockwood. They were partners and intended to use the money in their business and did so. The referee reported that the claim was a claim against the estate of Charles B. Gray and entitled to share with the individual creditors of the' deceased. This report was confirmed by the supreme court A decree of the surrogate’s court was entered upon the final settlement of the estate of decedent, directing that the individual creditors were to be paid first in full, and that the balance then remaining should be divided among the partnership claimants and included the appellant among the latter. Held, that the decree should be reversed; that the report of the referee having been confirmed by the supreme court, was binding and could only be reviewed by appeal.
    Appeal from a decree of the surrogate of Orange county, entered on the final settlement of the estate of Charles B. Gray, deceased.
    The appellant was surety and joint-maker on a certain note and an accommodation indorser upon five other notes, all of which notes were signed by Charles B. Gray and 0. G. Lockwood. All these notes were paid by appellant and she held them.
    Gray and Lockwood were doing business at the time the notes were made, as partners under the firm name of Gray & Lockwood. The firm was dissolved several years before the death of Charles B. Gray, and the firm and Lockwood, the surviving 'partner,- are insolvent. The claims of Mrs. Lockwood were duly presented to the referee, who reported that they were all just claims against the estate of said Gray and that she was entitled to a share equally with the individual creditors and a judgment was entered in accordance with this report.

      The surrogate on this settlement of the final judicial settlement of said estate, was requested to find that this judgment was conclusive upon him as to the matters therein decided, and also that appellant was entitled to share equally with the nidi vidual creditors of decedent, both of which requests were refused. The surrogate holding that appellant’s claim should be deferred until the individual debts of decedent were paid and that she was only entitled to a share with the partnership creditors.

      C. E. Cuddeback, for app’lt; Lewis E. Cass, in person and for individual creditors, res’pts.
   Barnard, P. J.

The judgment of the supreme court was binding upon the surrogate’s court. The plaintiff held claims, as she alleged, against the estate of Charles B. Grey. The administrators rejected the claim. It was referred under the statute, and it appeared that the appellant bad indorsed and become surety upon papers made by Charles B. Grey and G. C. Lockwood. They were partners and intended to use the money in their business, and did so. The referee reported that the claim was a claim against the estate of Charles B. Grey and entitled to share with the individual creditors of the deceased.

This report was confirmed by this court. The statute is-very general in respect to claims against deceased persons, but broad enough to determine whether a creditor was entitled to share with the individual creditors of deceased or whether the claim was one which must await the payment in full of partnership debts before it was entitled to payment out of the assets. Besides this, it was the very thing submitted to the referee, by both parties by consent, to adjudicate upon her claims against the estate, and the adjudication in a court having jurisdiction of the subject matter and the parties, was binding and could only be reviewed by appeal. Fisher v. Hepburn, 48 N. Y., 41. It was as valid as if commenced by ordinary process. 2 R. S., 89, § 37.

As to the $2,000 note, the appellant was a surety. It-was a joint and several note, and when the surety paid it she took the place of the debt as one against the individuals who made the note and each of them.

The decree. should be reversed and the proceedings remitted to the surrogate’s court with instructions to allow the appellant’s claim as an individual debt against the estate, with costs to appellant out of the estate.

Dykman, J., concurs.

Pratt, J.

(dissenting).—On the reference under the statute the order of distribution of the assets of the estate was not in question. That was nsot a question which the administrator could legally submit in that proceeding, and what was done in that respect was not binding on the other creditors. They now have for the first time the opportunity to be heard.

The jurisdiction of a court to render a judgment can always be inquired into.

The decree of the surrogate should be affirmed.


text:
    William H. Odell, Resp’t, v. New York Central and Hudson River Railroad Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Master and servant—Duty of master to keep tools in repair.
    It is the master’s duty to use reasonable care to furnish suitable machinery and tools for the purpose of the employment, and to keep the same in repair.
    Appeal from a judgment entered upon a verdict in favor of plaintiff in an action for damages resulting from injuries caused by the starting of defective machinery on which he was at work.

      Martin J. Keogh, for resp’t; Close & Robertson, for app’lt.
   Barnard, P. J.

The plaintiff was an employee of the defendant, and was injured by the sudden starting of a machine about which the plaintiff was at the time employed in putting a gang of six saws for a certain piece of work. The evidence upon the part of the plaintiff tended to show that the machine was started of itself. That there was a foot-lever by which a lever-pin or bolt beneath the floor was displaced, and the machine thereby started. This bolt slipped out of its place without the application of the lever.

Upon examination it was seen that the bolt had been used to such an extent as to become useless.

Wilk, a machinist, examined the bolt after the accident, and testifies: “ I found that the pin was worn out that holds the lever down, and that gave out and started the saws * * * the pin was worn out at the end of it where it went into the slot so that it would not hold in.” The pin should have been square and tight fitting. It had become by long use round and loose fitting.

The master’s duty was to use reasonable care in furnishing suitable machinery and tools for the purposes of the employment, and in keeping the same in repair. Kain v. Smith, 89 N. Y., 375; Stringham v. Stewart, 100 id., 516.

Proof was given tending to show that the general manager, Goring, of the defendant in the machine shop was informed of the defect. He attributed the same to sawdust. An examination developed that there was no sawr dust, and that the pin did not catch good. Goring promised to remedy the defect, and did not.

There was no proof of any negligence upon the part of the plaintiff contributing to the injury which, as matter of law, would justify a dismissal of tne complaint for that reason. The plaintiff knew that the bolt did not work well, but the machine had never before started “of itself,” he told the defendant through Goring. The method of putting in his gang of saws was proven to be the right one.

It was proper in so doing to put the hand on the top of the saw. If there was no evidence which, as matter of law, destroyed the plaintiff’s right to recover, the two requests made to the judge to charge are of no weight.

The judgment should be affirmed, with costs.

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


text:
    Ella M. Ten Broeck, Resp’t. v. Traveler’s Insurance Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    1. Evidence—Competent—Res gestee—Insurance—Accident.
    In an action to recover upon a policy of insurance against accident, the issue being whether oz.e Madden died from accident, proof of Madden’s declarations made at the time of the accident to explain the nature, quality and character of the facts constituting tile injury, was competent. The circumstances leading up to the disaster and immediately following it were a part of the res gestee.

      %. Witness — Foreign — Adjournment on account of absence discretionary.
    The granting of a motion to adjourn a cause on account of the absence of a foreign witness, rests largely in the discretion of the court, and if both sides are heard and the discretion is wisely and fairly exercised, the ruling will not be disturbed by an appellate court.
    Appeal from a judgment entered on the verdict of a jury in favor of the plaintiff.
   Pratt, J.

This action was brought to recover $10,000 upon an accidental policy of insurance issued to one Edward M. Madden, now deceased, on the 24th of October, 1879. The issues upon the trial were, first, was the statement made by the said Madden in his application as to his habits true, and, second, did he die from the effects of his injuries received on the 26th of June, 1885 ?

As to the first issue, a wide range of investigation was allowed both parties, and the evidence was sharply conflicting. There was, however, sufficient evidence upon either side to sustain a verdict of a jury. As to the second issue, there was a clear preponderance of evidence in favor of the plaintiff. The verdict must stand unless some error was committed upon the trial to the prejudice of the defendant.

The denial of defendant’s motion to adjourn the cause on account of the absence of the witness Ridgway,.was not, under all the facts, error. Ridgway was a foreign witness, and the facts proposed to be proved by him could be abundantly established by other witnesses residing within the jurisdiction.

Such a motion rests largely in the discretion of the court, and if both sides are heard and the discretion is wisely and fairly exercised, the ruling will not be disturbed by an appellate court. Under all the facts it is clear there was no abuse of discretion in „ denying the motion. The witness Lewis was also a foreign witness and knew nothing of the facts of the case, but was desired to be used by defendant as an expert.

We see nothing in the application which would have justified the court in granting the motion on account of the absence of this witness. Tribune Association v. Smith, 8 Jones and Spencer, 251; 7 Cow. 369, 390.

The question put to witness Dorrence, “Did Mr. Madden relate about the accident,” etc., was improper, but the defendant was not prejudiced thereby, as the question was immediately withdrawn and the answer stricken out; besides, the witness did not disclose anything that Madden said, and the most it proved was that Madden talked about the accident.

That there was an accident was established beyond question. The case fully shows that the question and answer did not prejudice the defendant.

The exceptions taken to proof of declarations made by Madden at the time of the accident and growing out of it, were not well taken. The circumstances leading up to the disaster, and immediately following it, were part of the res gestae and Were competent proof. Matteson v. N. Y, C. R. R., 35 N. Y., 487.

The issue was whether Madden died from accident, hence, his declarations to explain the nature, quality and character of the facts constituting the injury, were all competent. The symptoms, as they appeared, such as complaining of pain in certain localities, or the paralysis of certain parts; all were proper subjects for the ¡jury to consider in determining this issue. Extreme pain in, or paralysis of a certain part of his body, was a part of the necessary history of the case, and had a tendency to prove the effects of the injuries he had received. Casey v. N. Y. Central Railroad, 78 N. Y., 58; Curth v. Pike, 3 Cush. (Mass.). 181; Hagenlocher v. C. I. and B. M. R., 99 N. Y., 136.

The _ exception to proof as to the physical and mental condition of Madden just prior to his injury, was ineffectual. It is obvious that this testimony was competent to rebut the defendant’s answer, which set forth that Madden had been suffering from aggravated physical infirmities just prior to the injury, and to show that something intervened to strike him down. The testimony was calculated to show that Madden was in a fair condition of physical and mental vigor at the time of the accident, as opposed to the theory, as claimed by the defense, that he was a confirmed invalid and debauchee.

We have examined the other exceptions, but find none that require comment.

The case seems to have been fully and fairly tried, an unexceptionable charge given, and a verdict rendered which is fully sustained by the-proofs.

The judgment must therefore, be affirmed with costs.

Barnard and Dykman, JJ., concur.


text:
    Alvia Fisher, an Infant, by Guardian, etc., Resp’t, v. William Martin, Appl’t.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Reward—When an action lies to recover part prom person receiving whole.
    Where the reward offered for information concerning a missing girl was paid to defendant by the person offering the reward, and the defendant agreed upon recovering it that it should pay for “ all information furnished by any second or third party or parties,” knowing that plaintiff furnished him the information by which he found the gh 1: Held, that defendant received the money, recognizing plaintiff’s right and undertook to pay her in full. Pat/ick v. Metcalf, 37 IN. Y., 333, distinguished.
    Appeal from a judgment entered upon a verdict in favor of plaintiff in an action for part of a reward paid for information concerning a missing girl.
   Pratt, J.

This action was brought to recover the amount of a reward offered for information concerning a missing girl, which was paid to the defendant by the person offering the reward.

The jury found that the plaintiff earned the reward and that it was received by the defendant recognizing the plaintiff’s right to it, and the evidence is sufficient to support that finding.

The legal contention is whether the case falls within the principle laid down in the case of Patrick v. Metcalf, 31 N. Y., 332.

It is not the case of two rival claimants asserting individual rights to compensation for services one of whom is recognized and receives the money, and .the other, who is justly entitled to it, is excluded, but it is the case of one who claims the money knowing he is not justly entitled to the whole of it, and who recognizes the right of the other. to the reward in whole or part, and assumes to receive it for the «use of such person.

The receipt given by the defendant when he received the money is a sufficient admission of the rights of the plaintiff in the fund, and from it the jury had a right to infer that he received it for the benefit of the plaintiff.

In plain terms the receipt under the circumstances disclosed, implies an agreement on the part of the defendant to pay to the plaintiff what she was entitled to out of the reward in question.

He agrees that the specific fifty dollars received by him shall pay for “ all information furnished by any second or third party or parties.” He knew that the plaintiff had furnished him the information by which he found the girl, and he must have had the plaintiff in mind, and so far as appears, no other person, when he" agreed to receive the money and pay for “ all information, etc.”

If this view is correct it was an agreement on the part of the defendant with Vernol to pay the plaintiff the amount of her claim, if any, to the reward, and upon such a state of facts a suit could be maintained.

We are of opinion the case does not fall within the rule laid down in Patrick v. Metcalf, but thus the jury were authorized to find from all the evidence, that the defendant knew the plaintiff was entitled to compensation, and that he received the money recognizing such right and undertook to pay her in full.

There was no error in allowing the plaintiff to amend to •conform the pleadings to the proof, or even to plead new matter relating to the subject matter already set forth in the complaint. We have examined the other exceptions taken upon trial, but find none sufficient to warrant a reversal of the judgment.

Judgment affirmed, with costs.

Barnard and Dykman, JJ., concur.