author: Fitzsimons, J.

text:
    Philip Biershenk et al., Resp’ts, v. William E. D. Stokes, App’lt.

      (City Court of New York,

      General Term,

      Filed December 17, 1891.)

      1. Pleading—Answer.
    If plaintiff fails in his complaint to state truthfully the facts of the cause of action sued upon, the defendant may; in his answer, deny the contents of the complaint and then set out in his own way a plain and concise statement of the transaction.
    3. Same—Counterclaim.
    Where the plaintiff files a lien against defendant’s real estate when he has no right to do so, and defendant is put to the expense and trouble of having that lien removed, such damages are the proper subject of a counterclaim.
    Appeal from order sustaining demurrer to answer.

      William R. Martin, for app’lt; Oscar Richter, for resp’ts.
   Fitzsimons, J.

The defendant’s answer contained in paragraphs second, fifth, sixth and seventh is framed upon the theory .that plaintiff, in his complaint, failed to correctly set out the facts of the transaction' pleaded, and that the answer .does so by pleading new matter which truthfully alleges the facts and pre■sents a valid defense.

I believe that such a pleading is proper, for the Code reads, ‘That the complaint shall contain a plain and concise statement of the facts, and that the answer may allege new matter constituting a •defense.

If the plaintiff fails in his complaint to state truthfully the facts of the cause of action sued upon, I think that the defendant may, In his answer, deny the contents of the complaint and then set out in his own way a plain and concise statement of the transaction .referred to in the complaint, and this is just what the defendant herein claims he did in the sections mentioned. Such pleading I think is in conformity with the spirit of the Code, which contemplates that each party to an action shall fully, fairly and truthfully state the facts upon which they respectively rely to succeed in the prosecution or defense of the same. It apprises each of the parties of the attitude of the opponent Ho surprises are encountered at the trial. The trial justice and jurors are enlightened concerning the question in dispute.

The worst I think that can be said against it is that it discloses too much. For that reason it might be stricken out as surplusage with perhaps ten dollars, but should not be declared demurrable with full costs.

The fourth and eighth paragraphs of the answer also seem to me to be proper, if as therein alleged the plaintiffs filed a lien «against defendant’s real estate, when they had no right to do so, and that defendant was put to the expense and trouble of having that lien removed, which if it remained uncancelled of record would be a cloud and incumbrance on his property.

I think that in such a case he is entitled to recover proper ■damages.

The order appealed from should be reversed and the demurrer «overruled, with costs.

Van Wyck and McCarthy, JJ., concur.


source: Caselaw Access Project

author: McCarthy, J.

license: Public Domain

text:
    Edward P. Yale et al., Resp’ts, v. Henry C. Dart et al., App’lts.

      (City Court of New York,

      General Term,

      Filed December 29, 1891.)

    1. Bills and notes—Accommodation paper.
    Where a promissory note is'made or a draft accepted for the accommodation of the payee, but without restriction as to its use, an endorsee taking it in good faith as collateral security for an antecedent debt of the payee, without other consideration, occupies the position of a holder for value and can recover thereon of the maker or acceptor.
    51. Same—Evidence.
    Evidence of a conversation between defendant and another person held in a large room divided in two by a partition eight or nine feet high with :an open door, is not admissible as against plaintiff who was in the other part of such room, in the absence of evidence as to the power or extent of the latter’s sense of hearing.
    Appeal from judgment in favor of plaintiffs.

      E. Y. Stillman, for app’lts; T. E. Dewey, for resets.
   McCarthy, J.

This action was brought against the acceptors •of a draft drawn by Carlos A. Smith in favor of the plaintiffs.

The defendants on the trial admitted all- the allegations of fact in the complaint, and took the affirmative of the issues set up in the answer. The case was tried before Mr. Justice Fitzsimons on September 14, 1891, and a' verdict was rendered for the plaintiffs.

The questions to be considered on this appeal are the exceptions taken by the defendants to the exclusion of testimony, the exceptians taken to the refusal of the court to direct a verdict for the defendants, and exceptions taken to refusals to charge the jury. -

The defendants in securing the affirmative .admitted the allegations in the complaint.

This included the acceptance of the draft, and that the same was for a valuable consideration. Even if this was disputed, the-defendants proved by the deposition of Smith read at the trial that there was a valid consideration for the acceptance of the defendants in the indebtedness of Smith to the plaintiffs.

Once the question of consideration being disposed of, there are-but two defenses left to consider; one, that the acceptance was solely for the accommodation of the plaintiffs, and upon the express agreement that the same should be protected by the plaintiffs ; and, second, a subsequent acceptance by the plaintiffs of another draft from Smith in payment of the draft in suit. There is no claim or defense that Smith misappropriated or diverted the draft. The law is well settled, under such a state of facts, that where a promissory note is made for the accommodation of the payee, but without restriction as to its use, an endorsee taking in good faith as collateral security for an antecedent debt of the payee and endorser, without other consideration, occupies the position of a holder for value, and can recover thereon against the' maker.

The precedent debt is a sufficient consideration for the transfer, and no new consideration need be shown. Continental National Bank v. Townsend, 87 N. Y., 9; Grocers' Bank v. Penfield, 69 id., 504, 505; Schepp v. Carpenter, 51 id., 602; Benjamin v. Rogers,. 126 id., 69; 36 St. Rep., 393.

There must be a fraudulent diversion from the original object and design in order to constitute a misappropriation' made in this case.

The objection at folio 34 of the case was properly sustained. A partition some eight or nine feet in height enclosing and practically making two rooms separated the plaintiff Bryan and the witness Dart. True the door connecting these rooms was open, but there is no evidence as to the power or extent of Bryan’s, sense of hearing.

For all that appears touching this branch of the case Bryan might have entirely lost his sense of hearing.

It would be decidedly illogical to permit the defendant Dart to-give his evidence of a conversation between himself and Smith, although not had in Bryan’s presence, and thus bind Bryan by the same, simply because he, Dart, thought Bryan ought to have; heard it.

We think the questions of fact were properly presented to the. jury and find no error committed by the trial judge.

For these reasons, judgment should be affirmed, with costs.

Ehrlich, Ch. J., concurs.


text:
    Hans E. C. Felix, Resp’t, v. Mary L. Van Slooten, App’lt.

      (City Court of New York,

      General Term,

      Filed February 8, 1892.)

    1. Pleading—Amendment.
    An amendment of a complaint by striking therefrom causes of action therein set out may be granted, although a counterclaim has been interposed.
    :3. Discontinuance—Counterclaim.
    A plaintiff may discontinue his action on payment of costs notwithstanding the fact that the defendant has pleaded a counterclaim.
    Appeal from order allowing plaintiff to amend the complaint.

      Ernest Hall, for app’lt; Theron Q. Strong, for resp’t.
   Fitzsimons, J.

This action is based upon two promissory motes. The complaint contains two causes of action, and demands judgment for $¿¡660, being $660 more than a judgment may be for in this court.

On motion the first cause of action was stricken out of the complaint. From the order entered the appeal is taken..

The cause of action which was stricken from the complaint was for $1,014.87 balance due on a note. The answer admitted such indebtedness.

The second cause of action was upon another note for $1,646.12.

A defense is set out against the last note, and a counterclaim for $3,498, against both notes.

The appellant’s main contention is that a plaintiff cannot discontinue his action where a counterclaim has been interposed.

. This contention is not supported by the decisions, but the contrary seems to have been decided by Grover, J., in 49 N. Y., 78, in which he says that an amendment of a complaint may be allowed by striking therefrom causes of action therein set out. This is precisely what the order herein appealed from did.

The general term of this court in Cohn v. Anathan, 24 St. Rep., 295, decided, “ that a plaintiff may at any time discontinue his action upon payment of costs, nor does the fact that defendant may have pleaded a counterclaim preclude the plaintiff from having his application granted.”

As the amendment of the complaint herein extended only to the first cause of action I think that the terms upon which such amendment was granted were within the discretion of the special term justice and should not be questioned by us.

Order appealed from affirmed, with costs.

Van Wyck, J., concurs.


author: McGown, J.

text:
    Jacob Klee et al., App’lts, v. Hugh J. Grant, Sheriff, Resp’t.

      (City Court of New York,

      General Term,

      Filed February 8, 1892.)

    Beflevtn—Failure of proof.
    In an action of replevin the only evidence as to ownership was given by one of the plaintiffs whose testimony on cross-examination was inconsistent ■and at variance with that given on the direct. Held, that the complaint was properly dismissed.

      Appeal from a judgment entered against the plaintiffs, upon the issues in above -action, dismissing the. -complaint upon the merits, with costs.

      Sampler & Bloomfield, for app’lts ; Cochran & C lark, for resp’t.
   McGown, J.

This action was brought to replevin certain personal property, consisting of suits, overcoats and pants of the-alleged value of $140.38, which plaintiffs claim were wrongfully seized and detained by defendant, while plaintiffs were the owners- and entitled to the immediate possession thereof.

Defendant in his answer specifically denies the allegations of the complaint, and set up as a separate defense and justification, that on the 26th day of August, 1889, he took and detained said property under an attachment against the property of Maier Rothschild, who was the owner of the same, or had a leviable or attachable interest therein at that time.

The only question of fact to be passed upon by the court and jury being as to whether the plaintiffs or said Rothschild were the owners of the property, and entitled to the immediate possession theredf, at the time of the levy.

The case came on for trial before Justice Rewburger anda jury, on the 23rd day of March, 1891.

The only witness called and examined upon the part of the-plaintiffs to prove ownership, and the right of immediate possession, on the part of the plaintiffs was Bernard S. Klee one of the-plaintiffs; and plaintiffs’ counsel rested his case. Whereupon,, defendant’s counsel made a motion to dismiss the complaint for want of sufficient evidence to sustain plaintiffs’ case, and the trial justice thereupon granted the motion to dismiss, to which ruling plaintiffs’ counsel excepted.

We think that there was no error on the part of the trial justice-in granting the motion to dismiss. It was the duty of the plaintiffs to furnish sufficient and competent evidence to the court and jury to maintain their cause of action, and in the absence of such evidence it was clearly the duty of the court to dismiss the. complaint.

The evidence given by the witness Klee upon his cross-examinatian was. so inconsistent and at variance with that given upon his-, direct examination that we think the trial justice was fully justified in granting the motion to dismiss.

To maintain their action it was necessary for plaintiffs to prove by a preponderance of evidence that on the 26th day of August,, 1887, the time of the seizure, the plaintiffs had the right to reduce the goods in suit into their possession; at the time of the seizure-by the sheriff the plaintiffs were not entitled to reduce the goods into their possession, as they had made no demand therefor upon. , Rothschild.

The evidence was insufficient to justify a verdict for the plaintiffs, and hence the dismissal was not error.

Had the case been submitted to the jury and a verdict rendered for the plaintiffs upon the evidence before the court, this court would feel constrained to set aside such verdict as clearly against the weight of evidence, and will assume that the court below would have set it aside for the same reason..

Judgment appealed from must, therefore, be affirmed, with costs to the respondent.

Yah Wyok and Fitzsimons, JJ., concur.


text:
    John Bell et al., Resp’ts, v. James McNiece et al., App’lts.

      (City Court of New York,

      General Term,

      Filed February 8, 1892.)

    Bills and notes—False representations.
    Where it appears that plaintiff received the note in suit from the payee in payment of a pre-existing debt, and parted with no value at the time of its transfer, it is error to exclude evidence to prove the defense alleged that it was procured from the maker by false representations.
    Appeal from judgment in favor of plaintiffs entered upon verdict directed by the court.

      John H. V. Arnold, for app’lts; Harley & Prendergast, for resp’ts.
   Fitzsimons, J.

The defendant McNiece made a promissory note payable to defendant Byrne, who before maturity endorsed it over to plaintiffs.

The defendant McNiece in his answer alleges that said note was obtained from him by the defendant Byrne by false representations and without consideration therefor, and that plaintiffs were not holders of the same for value.

The trial justice directed a verdict for plaintiffs for $504.19.

The testimony shows that the note in suit was received from defendant Byrne by plaintiffs as a payment on account of material furnished him by plaintiffs prior to their acceptance of .said note.

The defendant McNiece then endeavored to prove that the defendant Byrne obtained the. note in question by false representations, and that no consideration was given therefor. The trial justice excluded all such proposed testimony. In our opinion his rulings in this respect were clearly erroneous.

As above indicated, the testimony shows that the note in suit was received by plaintiffs and applied by them in payment of a pre-existing debt; it does not appear that at the time of such acceptance they parted with value or relinquished some right because of the endorsement over to them of said note. Under these circumstances they received the note subject to any and all •defenses which might have been urged against their endorser Byrne. Prince et al. v. The Never Rip Jersey Co., 37 St. Rep., .677.

Therefore it was error for the trial justice to exclude the testimony “offered by defendant McNiece tending to show that the note was obtained by false representations and without value.

J udgment reversed and new trial ordered, with costs to appellant to abide event of action.

McG-own and Yan Wyok, JJ., concur.


author: Van Wyck, J.

text:
    Henry Sproessig, App’lt, v. Julius Keutel et al., Resp’ts.

      (City Court of New York,

      General Term,

      File February 8, 1892.)

    1. Trial—Nonsuit.
    Where defendant moves for a dismissal at the close of plaintiff's evidence, without announcing that he rests his case, he is not entitled to-a dismissal on the merits, but only to a nonsuit.
    2. Mechanics’s lien—Cessation of work by reason of ill treatment.
    Where a contractor is called a swindler, knocked down and ordered, from the building by the owner he is not obliged thereafter to resume work on being notified so to do, or to wait for his payment until the work is? completely finished, but may file lien for the work already done.
    Appeal from judgment dismissing complaint.

      Chas JET. Preyer, for app’lt; Edward Grosse, for resp’ts.
   Van Wyck, J.

The plaintiff, a carpenter, sued upon two-causes of action to foreclose a mechanic’s lien and a trial was. had, as is usual in such cases, before the court without a j ary. At the close of plaintiff’s evidence the defendants, without announcing that they rested their case, moved to dismiss the complaint, and thereupon the court dismissed the complaint on both causes of action, and subsequently the judge signed and filed findings holding specifically, against plaintiff’s contention, every fact necessary to justify the conclusion of law “ that the defendants are entitled to judgment of dismissal upon the merits, with costs.”

As defendants moved without announcing that they rested their case they were not entitled to a dismissal upon the merits, but only to a nonsuit. Therefore what the court below granted must and will be deemed, considered and reviewed as a nonsuit under the rule laid down by the court of appeals in Place v. Hayward, 27 St. Rep., 710, which was tried originally before a referee and the defendant therein, after the close of the plaintiff’s evidenceand. without announcing that he rested his, defendant’s, case, moved. “ that the complaint- be dismissed on the merits,” [which was-granted by the referee.

Judge Earl, writing for reversal of the general term, and granting a new trial, says: “ Nevertheless what the referee did was to nonsuit the plaintiff. .We can give no other significance to the proceeding. Therefore he should have made no findings of fact, except such as would justify a nonsuit upon the trial. Under the-Code the referee was required to make findings of fact and of law after granting the nonsuit; but he had no right to make any findings of fact depending upon disputed or inconclusive evidence. Therefore to maintain this judgment the defendant is bound to-show that there was no disputed question of fact which upon a. jury trial the court would have been required to submit to the jury, and that upon the undisputed evidence he was entitled to a. judgment”

The judgment below must be considered as nothing more than a nonsuit, and in reviewing it the question must be considered asoné of law, and hence the plaintiff is entitled to have the evidence •construed in a manner most favorable to his position. All that the evidence in any way tends to prove must be deemed as fully proved; every fact which the testimony and reasonable inferences from it conduce to establish must be assumed to be established. The court of appeals, in Cook v. N. Y. C. R. R. Co., 1 Abb. Ct. App. Dec., 433, say: “On a question for nonsuit all disputed facts are to be decided in favor of the plaintiff, and all presumptions and inferences which he had a right to ask from the jury are to be conceded to him.” Hence the evidence of the plaintiff in the case now under consideration must be read in the light of these liberal rules of construction which have ever been conceded to a nonsuited party, and the conclusion must be reached that he was improperly turned out of the court below. His complaint alleges, and his evidence shows that he was employed to do work, but not to furnish materials, in and about the building of an addition to a house out of old materials for defendants for $500, to be paid in five equal instalments, that he had earned and been paid the first three instalments, that he had done eighty per cent, of the work required to be done to entitle him to the fourth payment, and twenty per cent, of the work so required under the fifth payment, and that he was while at work under his contract, accosted by one of the defendants, who said to him that he was a swindler and a fraud, and came behind him and knocked him in the head, and knocked him down, and said to him, “ You go out of my building and never come into the building again,” and that when he took his tool box and went to leave he was again kicked very badly.

It does seem that this treatment justified him in abandoning the contract and bringing this action to recover for what work he had already done. But defendants contend that as he admitted he was subsequently notified to finish the work under the contract he could not recover, because it was his duty to resume the work; but this is not so, for he was not bound to obey defendants’ notice after the ill-treatment which he had received from the defendant who had charge of the work; however he did again see this defendant who said to him “ You won’t get a cent out of me before your job is finished all through,” and yet he had done eighty per cent of the work entitling him to the fourth payment of $100, and the job would not be “ finished all through ” until he had earned the fifth and last payment of $100.

He was under no obligation to resume his work if he had. received such brutal treatment from the defendant, nor was he bound to wait until the job was finished for his fourth payment. •So much as to plaintiff’s first cause of action, and as to his second his evidence shows that he made an agreement to do certain specified extra- work with defendants, who agreed to pay him therefor $100, and had paid fifty dollars on account, and that he had performed the same.

The judgment must be reversed and new trial granted, with costs to appellant to abide the event.

McGowit and Fitzsmoes, JJ., concur.


text:
    Edward Duffy, Resp’t, v. William W. Ryer, App’lt.

      (City Court of New York,

      General Term,

      Filed February 8, 1892.)

    1. Bill of particulars—Account stated.
    The court has power in a proper case to order a bill of particulars in am action upon an account stated.

      (Hoff v. Tente, 1 Abb. if. €., 288, explained.)
    2. Same.
    Where a bill of particulars has been ordered and served in an action for services, the plaintiff will not be required to serve another after service of amended complaint setting up an account stated for the same services.
    Appeal from an order refusing to force a bill of particular® from plaintiff.

      Kneeland, Stewart & Epstein, for app’lt; Q. R. Hawes, for resp’t.
   Van Wyck, J.

The first paragraph of the amended complaint, alleges that between certain dates one ¿[awes “ rendered professional services to this defendant at his special instance and request,” and the second and third allege that on a certain date “ an account was stated between said Hawes and this defendant, and upon such statement a balance of $500 was found to be due from this defendant to-said Hawes,” which defendant promised to pay, but neglected to do-so, and the fourth and last paragraph alleges that “ the said claim against the said defendant was duly assigned by said Hawes to this plaintiff,” and the prayer is for judgment for $500. The defendant’s motion was for a “ bill of particulars of the account set. forth in the complaint, setting forth each and every service claimed to have been rendered by plaintiff’s assignor to the defendant, and the value of each and every act done, etc.,” and the-court below properly denied his motion, not because the action was upon an account stated, for the court has ample power to-order a bill of particulars in an action simply and purely upon an. account stated, and often does if the moving papers disclose such a condition of affairs as will force the conclusion that that is the best way to reach exact justice between the parties, and the decision made by the learned justice of the supreme court in Hoff v. Pentz, 1 Abb. N. C., 288, who then was presiding at the busiest, special term on the face of the globe, does not question this power of the court to so order a bill of particulars in such an action, but merely held that the conditions presented in that case did not-justify him in ordering such bill, and that justice could best be reached between the parties in that action by an examination, before trial, of the plaintiff, and which he distinctly offered to direct by order.

This decision is misunderstood, and is often cited before us as an authority against granting bills of particulars in such actions- and is sometimes adversely criticized; so it would be well if those who desire to sustain, as well as those who wish to assail, would read and consider it with more care, for the conclusion must be reached that it, as usually are all of his decisions, is good law and was a wise exercise of discretionary power. That the power rests-with the court no one can gainsay, for § 531 of the Code in words. says “ the court, may, in any case, direct a bill of particulars ” and. so see the power as exercised in extraordinary and celebrated cases sustained by the court of appeals, Tilton v. Beecher, 59 N. Y., 176; Dwight v. Germania L. Ins. Co., 84 id., 493, and Cunard v. Francklyn, 111 id., 511; 19 St. Rep., 641, and a well considered opinion will be found in Wells v. Van Aken, 39 Hun, 315, sustaining the directing of service of a bill of particulars in an action on. an account stated. It must be remembered that the motion now under review was made after service of the amended complaint,, and although the record does not contain the original complaint,, still it clearly indicates that it was for the same sum of $500, as-the reasonable value of the professional services of the plaintiff’s assignor, and shows that under the original complaint and before service of this amended one the defendant moved for á bill o£ particulars, which was directed and served, and again moved for a further and additional one, which, too, was directed and served, and the defendant avers at folio 29 “that the said bill of particulars comprised thirty-six pages and contains in the neighborhood of seven or eight hundred items.” From this it would seem that, the court below had concluded that defendant could from these bills of particulars fully inform himself of every issue which could by any possibility be raised at trial, even if the action was not strictly on an account stated. However, it would seem to be on an account stated. The defendant has received fully as much information from his adversary as will enable him to safely meet the plaintiff at trial. The order appealed from is affirmed, with ten dollars costs.

Fitzsimons, J., concurs.


author: Van Brunt, P. J.

text:
    George F. Hodgman, Resp’t, v. Stephen T. Barker, Def’t.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    1. Execution—Stay.
    Notice of intention to apply for a stay of execution will not of itself operate as a stay, and a payment made by the sheriff to the plaintiff’s, attorney after such notice, but before the application is made, is not a violation of an order thereafter granted.
    3. Same.
    'Prior to the granting of a stay, the sheriff gave to plaintiff’s attorney a check, which the attorney deposited after the order was granted. Held, that such deposit was not an application of the money; that it had been received and applied before the order was granted, and hence was not within the stay which was granted.
    8. Attachment—Validity.
    An attaching creditor, whose attachment has been held defective, has no-standing to attack the attachment of another creditor.
    Appeal by the National Broadway Bank from an order confirming and adopting a referee’s report as to an alleged violation) of an order of the court.
    Plaintiff and the bank were attaching creditors of defendant. The hank’s attachment had been held defective by the courts, and thereafter it notified the sheriff that it was about to apply for a. stay pending application to vacate plaintiff’s attachment Before the order.was served, the sheriff gave plaintiff’s attorney a check •which was receipted upon the execution.

      W. F. MacRae, for app’lt; L. Skidmore, for resp’t.
   Van Brunt, P. J.

Although we do not entirely comprehend the practice by which this appeal is brought before the court without the evidence upon which the court is supposed to have acted in the disposition of the motion in the court below, the report of the referee being merely advisory, and under no circumstances conclusive, yet it having been assumed that an appeal may be brought, we will dispose of the question.

It must, of course, be assumed that all the facts which appear' In the report as contained in the papers are true; and unless it can be shown that there was error in the conclusion arrived at by the court below, these facts being true, the order must be affirmed.

Upon a careful examination of those facts it would appear that thé position of the counsel for the appellant is that the sheriff and the plaintiff’s attorney, having had. notice of his intention to apply for a stay, were thereby stayed until it might be determined as to whether the court should or should not grant his application; and that it is a violation of an order subsequently granted to do an act inconsistent therewith, because notice had been given of the fact that application was to be made for such an order.

We are not aware of any rule by which an order becomes operative before it is made or that a stay of proceedings necessarily follows the notice of the attorney that he is about to apply for the same.

The evidence shows that the money was paid over before any order was made or served and that it had been receipted for upon the execution before the service of any such order, and before the application which is referred to in the order granting the stay had been made. The mere deposit of the check by the attorney in his bank was not an application of the money.' It liad been received and applied before the order was served, and hence was not within the stay which had been granted.

It is urged that the plaintiff’s attachment is void, and that ■therefore the sheriff was. not authorized to act. But even if that were so, how can the appellant here raise any such question? It had been decided and was the law at the time this stay was ■granted that the appellant had no standing in court to attack such attachment; and there is nothing contained in the referee’s findings to show that there had been any change in its position.

It seems to us, therefore, whatever view is to be taken of the ■question presented, that the appellant is not in a position to complain of the payment in question.

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

O’Brien and Patterson, JJ., concur.


author: O'Brien, J.

text:
    Henry B. Blanchard et al., Ex’rs, App’lts, v. Susan Jefferson, Individually and as Ex’rx, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    1. Pleading—Complaint—Separate statement op causes.
    A complaint alleged the dissolution and settlement of accounts of a partnership and that the balance found due to plaintiff’s testator remained on deposit as a loan to defendant, and that subsequently testator was. employed by defendant; that various sums were paid, and that a certain sum remained due. Meld, that the complaint stated two causes of action, one for money loaned and one for salary, and that they should be separately stated and numbered.
    2. Same—Demand.
    It is entirely competent, after stating two separate and distinct causes of action, for the plaintiff to allege that there was paid thereon from time to time an amount which can be specified, and that there is balance due thereon.
    Appeal from order of the special term requiring the plaintiffs, to make their complaint more definite and certain.

      O. M. Pinney, Jr., for app’lts; O. P. Oheever, for resp’t.
   O'Brien, J.

The complaint alleges that the defendant and plaintiff’s testator entered into a copartnership in 1874, and that the copartnership was continued until January, 1881, when it was dissolved by mutual consent, and upon the date of the dissolution the accounts between the copartners were settled and balanced, and there was due the plaintiff’s testator $14,651.92 from said copartnership, and that it was agreed between the defefidant and plaintiff’s testator that such balance should remain on deposit in the business and as a loan to the defendant at the legal rate of interest.

The complaint further alleges that thereafter the plaintiff’s testator was employed by the defendant at a salary of $3,000 per annum, and that from time to time various amounts were paid to-plaintiff’s testator on account of said salary and on account of his said deposit until 1887, since which time no payments have been made, and that there is due for and on account of said deposit and said loan the sum of $16,845.06.

Upon this motion to make the complaint more definite and certain by separately stating and numbering the facts constituting each cause of action set forth in the complaint, the order appealed from was made, requiring the plaintiff “ to make the complaint more definite and certain by separately stating and numbering the facts constituting each cause of action set forth in said complaint, and alleging and stating the amount paid-by the defendant for and on account of each cause of action and the amount claimed by the plaintiffs for and by reason of each cause of action alleged in said complaint.”

The question presented upon this appeal is necessarily dependent upon one or the other of two views we may take as to whether the complaint states one or two causes of action.

If the appellant’s contention is correct, that but one cause of .-action is set forth, namely, an action for an accounting, then the ■order appealed from should not have been made.

We do not think, however, that the complaint can be so construed. It seems to us that the complaint contains two causes of action, one for an alleged balance claimed to be due upon the dissolution of the copartnership, which was deposited with the defendant as a .loan, and the other for salary claimed to be due said plaintiff’s -testator on a contract of employment after the dissolution of the ■copartnership.

These two causes of action are independent, distinct and separable. They did not arise out of the same contract or transaction, but each arose out of separate, distinct and independent acts and contracts.

One cause of action is purely for money loaned and the other for salary under a contract of employment.

If our construction of the complaint is right, it would follow ■under § 483 of the Code that the facts constituting each cause of •action should be separately stated and numbered.

So much, therefore, of the. order as requires this should be -affirmed. But the remainder" of the order, which requires that the complaint should allege and state the amount paid by the defendant for and on account of each cause of action, and the amount claimed by the plaintiff for and by reason of' each cause of action alleged in said complaint, should be reversed for the reason that it is entirely competent, after stating two separate and distinct causes of action, for the plaintiff to allege that there was paid thereon from time to time an amount which can be specified,' and that "there is a balance due thereon as claimed in the complaint.

That this form of pleading is correct is shown by the facts appearing that the amounts due upon these two several causes of •action were from time to time lessened by payments made thereon "which were not appropriated by either "the debtor or creditor to ■either claim in particular, so that it would be impossible for the plaintiff to state just what amounts were paid on one or the other of these claims. -

It would appear that credit was given the plaintiff by the deiendant for the amount of both claims and from time to time as moneys were paid they were debited against the credit thus created and the balance held as the amount due plaintiff upon both ■claims.

The order appealed from should be modified accordingly, without costs to either party on this appeal.

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


text:
    Adolph Kaempfer, Resp’t, v. John J. Gorman, Sheriff, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    Depositions—Open commission.
    An open commission should not be granted except under exceedingly peculiar circumstances, and not because it is more convenient or considered desirable by the moving party. The mere fact that the proposed witnesses are hostile and therefore the party desires to examine them orally is not a sufficient ground to authorize the granting of such a commission.

      Appeal from order denying motion for open commission.

      A. L. Jacobs, for app’lt; B. Loewy, for resp’t
   Van Brunt, P. J.

It is apparent that an open commission ■should not be granted except under exceedingly peculiar circumstances, because by such a commission frequently the place of trial, is virtually transferred to a foreign jurisdiction.

The papers in this case present no special reasons for the granting of such extraordinary relief, except the fact that the witnesses proposed to be examined are hostile to the defendant, and that, therefore, it is necessary to examine them orally.

Where a party is called upon to justify against a trespass committed within this state, we do not think that the plaintiff should be required to attend by counsel the taking of testimony in another ••state, and that the ordinary means of taking the testimony of witnesses should be resorted to and not an open commission.

The case of Parker v. Lithgoe, 36 St. Rep., 981, is cited as an .■authority to support the application in question. Upon an examination of that case it will be seen that it is no authority whatever for the contention of the defendant. It is simply in harmony with the cases of Clayton v. Yarrington, 16 Abb. Pr., 273, and Anderson v. West, 9 Abb., N. S., 209. In the case of Parker v. Lithgoe a commission had been ordered and an appeal taken from the order granting the commission. The court was of opinion that the commission should issue, but they gave the right to the opposite party, if they desired, to have an open commission in ■order that they might produce such witnesses as they chose and ■examine them orally. If they did not desire ah open commission they were under no necessity to accept it, and if the respondents did not desire that the defendant should have this privilege then the appellants could not get it unless they persisted in their motion for a commission.

In the other cases cited leave was given to cross-examine witnesses orally where a commission had been issued, and that was all.

It will thus be seen that the question as to the oral examination of witnesses has in all cases depended upon the desire of the party moved against; and this court at least has not ordered any such commission simply because it was more convenient and considered ■desirable by the party moving.

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

O’Brien and Patterson, JJ., concur.


text:
    Sarah E. Mellen, App’lt, v. Abner Mellen et al., Def’ts. A. C. & M. H. Ellis, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    Attorneys—Bill of particulars.
    On reference of a claim by attorneys for services in a single action, where the affidavits used show the nature of the services, it is not error to> refuse a bill of particulars of the claim, as defendant will have an opportunity to ascertain the particulars on the hearing before the referee.

      Appeal from order denying motion for bill of particulars

      H. Daily, Jr., for app’lt; G. Brainerd, for resp’ts.
   Van Brunt, P. J.

The respondents as attorneys for the plaintiff commenced this action for the partition and sale of certain real estate. They remained her attorneys until July, 1889, when the appellant discontinued their services, and moved for a substitution. This motion the respondents resisted, but it was granted on condition of the plaintiff giving a bond in $2,000 conditioned for the payment of whatever amount might be found due to the: respondents, and a reference was ordered to take proof of the-services alleged to have been rendered in and about this action.. Before the matter was brought to a hearing this motion was made for a bill of particulars of the claim of the respondents for professional services alleged by them to have been rendered for the plaintiff, and of the disbursements made for her in and about this, action. This was denied upon the ground that they would have-ample opportunity before the referee to ascertain the particulars of the respondents’ claim. We see no reason for interfering; with this order.

The services which the respondents claimed to have rendered* were in and about this action and none other. They have stated generally the nature of those services in the affidavits which have-been furnished by them in these proceedings, and they will be required to prove before the referee the services rendered and their value; and the plaintiffs will have an opportunity to cross-examine the respondents iii respect to the services so rendered.. They will then be fully informed of the particulars of the respondents’ claim and will undoubtedly be afforded a reasonable opportunity to meet the claim if they have any evidence whatever to adduce in opposition thereto.

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

O’Brien and Patterson, JJ., concur.


author: Patterson, J.

text:
    In the Matter of the Petition of Paul Gantert to compel Executors of William A. Juch to sell Real Estate.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    Decedent’s estates—Sale op beal estate—Poweb op sale.
    A will directed the executors to pay all debts and funeral expenses; constituted some trusts, and gave the executors “full power and authority to-sell and convey any and all of my real estate either at private sale or public auction,” and contained nothing which limited the power of sale to any specific object. Held, that the power of sale was sufficient -to authorize a. sale for the payment of debts, and that a proceeding under § 2749 of the Code could not be maintained.
    Appeal from decree of surrogate sustaining exceptions to report of referee and dismissing petition.

      A. G. Thomas, for petitioner; Thomas Allison, for resp’ts.
   Patterson, J.

The appellant presented a petition to the surrogate asking that an order be made directing the sale of his de-ceased debtor’s real estate to pay his debt. The surrogate referred it to a referee to take proof and report with his opinion. The .-application was made under § 2749 et seq. of the Code of Civil .Procedure, which provides, in substance, that such an order as was asked for may be granted, except where the real estate devised is expressly charged with the payment of debts. The ■■debtor left a will which -was duly admitted to probate, and in -that will he directed his executors to pay all his just debts and funeral expenses, and he gave his executors a power of sale of his ■realty in the following words: “ Giving and granting to my ex•ecutors and trustees full power and authority to sell and convey •any and all of my real estate either at private sale or public auction, etc.” He created by his will certain trusts which .we will assume for the purposes of this matter to be invalid (but do not so determine). The referee was of the opinion that the application should be granted, but the surrogate, determined that the •power of sale was sufficient to authorize the executors to sell the • realty for the payment of debts, and therefore it was not necessary to resort to the proceeding instituted in his court by the -creditor.

It is not controverted that if this ruling of the surrogate is correct the land cannot be sold in the manner or by the proceeding instituted by' the creditor, and the single question therefore is as ’ to the true interpretation of the power of sale. Is it to be exercised solely in connection with the trusts created by the will or is it broad enough to confer a power to convert the realty into personalty for the payment of debts? If it is to be exercised -only for specific purposes, the reasonable and necessary interpretation would be to restrict its exercise for those purposes, but if ■it is for all the purposes of the will, that is, to pay debts and funeral expenses as well as for other purposes, there can be no limitation imposed upon it This requires an examination and -analysis of the whole-will and making it we can find nothing which limits the power of sale to any specific object It was conferred in order that the donees of the power might cony out the purposes of the will, one of which was the payment of debts. The payment of such debts under the scheme of the will was just as much one of the objects of the testator comprised within the power of sale-as any other. It is a general power of sale to complete and carry out the intention of the testator and it is unnecessary to inquire whether an equitable conversion was operated dpso facto by conferring the power. The real question in the case is as to the extent of the power of sale and the purposes for which it may be lawfully exercised, and we agree with the learned ■surrogate that “ the power of sale is unlimited and unrestricted to .any particular purpose and is broad enough to include a power for the payment of debts,” and that there being a valid power of .sale for that purpose the proceeding cannot be maintained.

The decree of the surrogate, is affirmed, with costs.

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


text:
    Bridget Healey, Adm’rx of Patrick Healey, Pl’ff, v. James B. Smith, Def’t.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)
    Master and servant—Negligence.
    Plaintiff’s intestate was employed by defendant, and was killed by the falling of a chute erected to remove rubbish from a burned building, which he was attempting to clear of obstructions which had been placed therein the day before by his fellow servants or other persons unknown. It appeared that the chute was properly constructed, and that defendant, had furnished suitable tools to remove obstructions. Held., that there was nothing to show that defendant had failed in his duty to deceased, and that the complaint was properly dismissed.
    Exceptions ordered heard at general term in the first instance.' after dismissal of complaint

      William Boardman, for pl’ff; Jacob F. Miller, for de’ft.
   Patterson, J.

The plaintiffs intestate (Healey), a laborer-employed by the defendant, was killed by the falling of a. chute, through which the debris remaining after a fire in a. building in the city of New York was to be removed from the upper stories of that building to the street. The defendant, was the contractor for the reconstruction of that building,, which was partially destroyed, and it was part' of his contract to remove the rubbish. The chute was not built by him, but by persons skilled in the making of such appliances, and. it is not contradicted that, if used in a proper way, it was entirely sufficient for the purpose for which it was intended. Plaintiff’s intestate on the day of . his .death was at work at this chute, in the upper part of the building, when it. was ascertained that it was clogged or obstructed by heavy matter or material which should not have been put in it, and it appears that such heavy material was so put in the-day before the accident by the fellow servants of the deceased or by other persons. He and another workman finding that the chute' was obstructed went down to the roof of a structure erected over the sidewalk, to clear it, and while thus at work the chute fell and the plaintiffs intestate was killed. It appears in evidence' that the chute was properly constructed, and there was testimony to show that it had been cut as by a saw, and that the timbers or-boards of which it was composed had not been pressed out as if' by force from the interior of the slide, and also that one Kennedy,, a fellow workman, who went down with Healey, had a saw in bis-hand when he so went down. It also appeared that there were sufficient and proper appliances for the removal of large pieces of rubbish which could not properly be thrown down or passed through the chute. On this testimony the justice presiding at the-trial dismissed the. complaint, but ordered the exceptions to bell eard in the first instance at the general term.

The dismissal of the complaint was clearly right. There was nothing to show that the employer had failed in his duty to the-servant. The chute was well built and entirely adequate ; it had become only the day before unserviceable by the neglect of the-fellow servants of Healey or by the acts of independent persons. The accident was evidently occasioned by the overtaxing of the capacity of the chute, which was well known to Healey, and he attempted to remedy it, and in so doing the fatal accident occurred. That is really all the evidence there is, and it is not enough to prove such negligence on the part of the employer as would charge him with responsibility for Healey’s death.

The exceptions must be overruled and judgment directed that the complaint be dismissed on the merits, with costs.

Van Brunt, P. J., and O’Brien, J.-, concur.


text:
    Anna B. Stewart, Resp’t, v. The Union Mutual Life Ins. Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    Insurance (Life)—Pleading.
    In an action on a policy of life insurance which contained a condition that the first premium should he paid on delivery of the policy, an allega-r tian in the complaint that the policy was made, executed and delivered for' value received is sufficient on demurrer, as under such allegation the presumption would arise that such premium had been paid or a credit therefor extended.
    Appeal from interlocutory judgment overruling demurrer to the complaint

      Sawyer & Getty, for app’lt; Samuel B. Paul, for resp’t.
   Van Brunt, P. J.

We think that the whole difficulty with. the defendant’s argument in support of its demurrer is that it assumes facts which do not appear. One of the facts upon which it relies it states to be that the insured obtained possession of the policy of insurance in question without paying anything therefor. The complaint not-only does not contain any such statement, but on the contrary it alleges that the policy was made, executed and delivered on April 19, 1890, for value received; a fact which is admitted by the demurrer. It further alleges the purport of the policy, death of the assured on August 14, 1890, furnishing of proper proofs of death, demand of payment and refusal.

Attached to the complaint is a.copy of the policy, which contains the following clause:

“ The policy is issued upon and subject to the following conditions and the conditions stated in the second page of this policy, all of which are hereby referred to and made a part hereof. That the first year’s premium of $123.10 shall be paid at the home office on the delivery of this policy,” etc.

The demurrer is upon the ground that the complaint does not state facts sufficient to constitute a cause of action.

It is claimed that because it is not alleged that the $123.10 agreed to be paid on delivery of the policy has been paid, or that its payment has been waived, the complaint is defective.

This position cannot be sustained because the allegation of the complaint is that the policy had been duly executed and delivered for value, and the presumption would be, as the company could exact the first premium on delivery of the policy, that it had been paid, or if it had not been paid that a credit was intended. Miller v. Life Ins. Co., 12 Wall., 285-303. It is urged that the case cited has no application, because in that case the condition was a condition subsequent and not a condition precedent as in this case. The application in the case cited contained an express agreement that the policy should not be binding until premium paid, whereas this policy does not contain any condition that it shall not attach or be operative unless the first premium has been paid. Thus the case at bar is much stronger in favor of the respondent than the case cited. The company have a right to exact the premium on delivery of the policy, but if they deliver such policy without such payment they are presumed to have intended to give credit.

In the case of Bogardus v. N. Y. Life Ins. Co., 101 N. Y., 328-335, it appeared that the failure to make certain payments avoided the policy, an entirely different case from the one at bar.

It is undoubtedly true that a complaint must allege a performance of conditions precedent,"or if a waiver is claimed it must be pleaded; -but in the case at bar facts are alleged which show either a performance of the condition or a w.aiver if- the condition has not been performed, viz.: due execution and delivery of the policy. Hence the defendant must raise the issue by answer, and not by the assumption of facts which do not appear upon the face of the complaint.

The judgment should be affirmed, with costs'; defendant to have leave to answer upon payment of costs of appeal and costs of court below.

O’Brien and Patterson, JJ., concur.


author: O’Brien, J. Van Brunt, P. J.

text:
    Ezra C. Dillingham, App’lt, v. James A. Flack, Sheriff, et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    New trial—Surprise—Newly discovered evidence.
    A new trial will not be granted on the ground of surprise arid newly-discovered evidence because the action was determined on a point not expected by plaintiff’s counsel, and he did not deem such evidence, although available at the time, as either material or necessary in the view he took of the issues to be tried.
    Appeal from an order denying a motion for a new trial, upon the ground of surprise and newly discovered evidence.

      B. W. Tyler, for app’lt; Blumenstiel & Hirsch, for resp’ts, def'ts; David Tim, for resp’t Flack.
   O’Brien, J.

The plaintiff brought an action of replevin against the defendant for the- recovery of possession of certain personal property claimed by the plaintiff to belong to him, and which had been levied upon by the sheriff under an attachment issued at the instance of the defendant Meyer. The question at issue in the case was the validity of a certain bill of sale given by Christine S. Ferine to the plaintiff, on the 8th of July. 1889, covering the stock of merchandise in the business of Mrs. Ferine, including likewise outstanding accounts, bills receivable, and'the good will pertaining to said business. Upon the trial, a verdict was directed upon the evidence of the plaintiff and his own witnesses, including that of his attorney, upon the ground that the giving of said bill of sale was one transaction with the giving of the deed of certain premises in Stateh Island, and the giving of certain bills of sale and the giving of certain mortgages by the said Christine S. Ferine to the plaintiff, as trustee for plaintiff and one Charles E. Rycroft and Sawyer & Manning, in liquidation, and Sawyer, Burt & Manning, and that the entire transaction was a scheme of Perine’s to convey all her property in trust for creditors, which not being in accordance with the law of this state as to the making of voluntary assignments for the benefit of creditors, was void. Plaintiff now claims to have been surprised at the direction of a verdict and asserts that the point upon which the action was decided was not raised by the pleadings, and that plaintiff’s counsel was led to believe that the defendant’s defense was that the .bill of sale was given without any substantial consideration, and was a fraudulent attempt to. put the property out of said Perine’s hands, so that the creditors could not get at it. Relying upon this supposed defense of defendant, plaintiff claims that he did not deem it necessary to examine certain witnesses in order to bring out certain facts upon the trial, which would have an important bearing on the construction of the evidence which was actually taken. In addition, plaintiff claims to have four witnesses whose affidavits are used upon the motion, from which it is claimed that if a new trial was had, that- plaintiff's testimony upon the former trial, as thus supplemented by these four witnesses, would necessarily lead to a different result. The counsel for the defendant, in answering, asserts that he stated on the trial that he intended to impeach the bill of sale as being in fraud of law and fraud in fact.

In the case there was one issue before the court, and that was .the issue of title. It was simply a question whether the bill of sale, under which plaintiff claimed, was fraudulent and void, as against a creditor, or valid, giving plaintiff title. The evidence and cross-examination of -plaintiff’s own witnesses bore upon that point and no other.

It will also be seen by the questions put by the court, that the connection between the bill of sale and the other instruments, as bearing upon the validity of plaintiff’s title, was broúght to the attention of counsel. It is also to be noted that the alleged newly discovered evidence is to be used upon the trial for the purpose of partially contradicting and explaining the testimony of plaintiff’s own counsel. The latter does not complain of any misunderstanding, error or surprise, nor does he support, by affidavits, the assertion of error made by his client. Upon the facts thus presented, we do not think that the surprise or newly discovered evidence alleged as the basis for a new trial are' sufficient. The grounds upon which such motions will be granted have been frequently gone over. See Grupe v. Brady, 51 Supr. Ct., 513; Raphaelsky v. Lynch, 34 id., 31; Emmerich v. Hefferan, 53 id., 98-102; Geneva, etc. Railroad Company v. Sage, 35 Hun, 95.

In Raphaelsky v. Lynch, it was said: “ The following principles are settled, in regard to granting new trials on the ground of newly-discovered evidence. The testimony upon which the motion is based must have been discovered since the former trial. It must have been such as could not have been obtained with reasonable care before; it must he material to the issue ; it must go to the merits of the,case, and not to impeach'the character of former witnesses. It must not be cumulative. The facts must be strong, and the party averring them free from loches."

It is not shown • by the defendants that the proposed evidence has been discovered since the last trial, because it is apparent that plaintiff was familiar with the knowledge that the four .witnesses, whose evidence is now sought to be presented, had with regard to the transactions inquired into upon the former trial. The most that can be argued from the affidavits is that the counsel, in his own view of what the issues would be upon the trial, did not regard the testimony of such witnesses as either material or necessary. It will thus be seen that in many respects the question here presented is similar to the one that was passed upon in Emmerich v. Hefferan, 53 Supr. Ct., 98. There the action was tried by plaintiff’s attorney upon the theory that it was only necessary for him to prove, in order to entitle .plaintiff to judgment, that certain conveyances were made without consideration, and were made at the time the indebtedness to the plaintiff was in existence. The judge before whom that case was tried, held that that was not sufficient; and dismissed the complaint for the reason that no fraudulent intent was proved. On motion for a new trial, and upon appeal, the case of the Northampton Bank v. Kidder, in the 50 Supr. Ct., 250, was referred to and cited with approval. ■ In that case it was held:

“To grant a party a new trial, after such determination, in order to enable him to "prove what, upon the first trial, he considered and treated as immaterial and irrelevant, though involved-in the issues, would not be sanctioned by authority, but, on the contrary, would establish a dangerous precedent. For in every such case the party must be held bound by the course pursued, by his counsel.'
“ If the rule were otherwise, all a defeated party would have to do, in order to obtain a new trial, would be to retain new counsel and "start á new theory.”

Again, as stated in Grupe v. Brady, supra, which' was an action in which, as here, both an appeal was taken from the judgment "and a motion-made for a new trial on the ground of surprise and newly discovered evidence, it was said: . .

“The evidence claimed to have surprised the plaintiff was principally brought out by defendant’s counsel on the cross-examination of the plaintiff- and plaintiff’s witnesses. Towards the close of the case the plaintiff’s counsel introduced evidence in rebuttal, but in doing so he did not in any way-indicate that he was taken by surprise, nor did he move for thé withdrawal"of a juror or the postponement of the trial for such reason. As to the newly discovered evidence, it clearly appeared that it was cumulative, and that with due diligence it could have been readily procured for the trial.'’

These motions are not regarded with favor, and it is only in cases where justice requires it by reason of surprise which could not reasonably be anticipated, or by reason of evidence which could not by the exercise of diligence have been procured, that the court will grant that. Here the alleged newly discovered evidence proposed to be offered was evidence of plaintiff’s counsel’s own clients concerning a transaction as to which the counsel himself testified upon the trial. This is not the character of newly discovered evidence that will justify the granting of the motion, and so far as the surprise alleged is concerned, all that can be claimed in that regard is counsel’s surprise, either at the law of the case or the effect of the evidence as presented by his own witnesses. As to the law of the case and the effect of the evidence, these are all involved in the appeal taken from the judgment, and will be there passed upon.

For the reasons stated, we are of opinion that the order appealed from should be affirmed, with costs.

Lawrence, J., concurs.

Van Brunt, P. J.

This action was brought to replevin certain goods which had been attached by the sheriff under an attachment issued in favor of the defendant Meyer, and against the party from whom the plaintiff derived title. The defendant by his answer denied ownership in the plaintiff, and set up his process as a justification. Upon the trial of the action evidence was introduced showing that the giving of a bill of sale of the property in question to the plaintiff was part of a transaction which was a scheme on the part of the defendant in the attachment to convey all her property in trust for creditors in a manner in violation of the laws of the state in reference to voluntary assignments for the benefit of creditors, and was therefore void; and a motion having been made that the court direct a verdict in favor of the defendant, such motion was granted. The trial was in March. In the succeeding May the plaintiff made his motion for a new trial upón the ground of surprise and newly discovered evidence. It seems to us that it took the plaintiff altogether too long to get surprised to justify the court in granting the motion for a new trial upon that ground. If any surprise occurred at all, it occurred upon the trial, and it is admitted that the surprise consisted in the point which was taken upon the motion to direct a verdict by the defendant’s counsel. If the plaintiff desired then to be relieved from the condition in which he found himself, he should have moved for the withdrawal of a juror and a postponement of the trial. But after having been surprised at the position taken by defendant’s counsel, he could not speculate upon what the decision of the court was going to be upon that motion, and then claim in addition to the surprise at the ground which the defendant’s counsel took that he was surprised that the court decided the question according to law.

It appears conclusively from the record that the plaintiff was surprised at the decision of the court upon the facts presented and not in the slightest degree by the nature of the evidence. As already stated, it took him too long to get surprised even at the decision of the court to entitle him to any relief upon that ground.

But it is urged that the motion is also based upon newly discovered evidence.' An examination of the record would seem to show that the principal ground for which a new trial is desired is to allow witnesses who have already been sworn to revise their testimony because upon reflection and consideration and talking with other people they have come to the conclusion that they were mistaken somewhat in, the sequence of events. No new trial can be granted for any such purpose.

It is true that this is fortified by the claim that certain other witnesses will swear to the same effect. But there is no evidence whatever but what this testimony was all within reach at the time of the trial and could have been procured; and it was only because the counsel does not seem to have appreciated the tendency of the facts which were established that they were not produced.

The motion for new trial was, therefore, properly denied, and the order should be affirmed, with ten. dollars costs and disbursements.


author: O’Brien, J.

text:
    Ezra C. Dillingham, App’lt, v. James A. Flack, Sheriff, et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    1. Replevin—Title—Assignment fob creditors.
    A bill of sale shown to have been given at the same time as mortgages and trust deeds of all the property of the vendor for the benefit of the vendee and a part of the vendor’s creditors is void and confers no title on the vendee which he can maintain against an attaching creditor, and in such case the court is justified in refusing to direct a verdict in his favor.
    2. Same—Verdict.
    A verdict in favor of the defendant may be. directed in such case, although such defense was not pleaded in the answer, as the burden of showing title is upon the plaintiff.
    Appeal from a judgment.

      J3. W. Tyler, for app’lt; Alexander Blwmenstiel, for resp’ts.
   O’Brien, J.

This is an appeal from a judgment entered on a verdict directed by the court, which adjudges the defendants are entitled to the return of certain personal property mentioned in the complaint, and awarding damages for its detention.

The property referred to consisted of certain goods claimed by the plaintiff and also by the defendants. The goods in question were conveyed to the plaintiff by a bill of sale dated the 8th day of July, 1889, and executed by one Christine F. Ferine. At the time tliat the bill of sale was delivered the sheriff was in possession of the goods under an attachment sued out by one Bowman.

The plaintiff jointly with the sheriff took possession of the goods under the bill of sale on the 10th day of July, 1889. On the 16th day of July, 1889, the attachment referred to in the answer of the defendant and respondent Meyer was sued out and judgment was recovered in the action on the 28th of December, 1889. Upon the trial of the case a verdict was directed for the defendants by the court on the ground that the bill of sale was part and parcel with certain other bills of sale or mortgages, and that the whole taken together were one scheme intended to operate as a conveyance of property in trust for creditors in a manner which the statutes did not provide for, and was therefore illegal.

At the close of the case plaintiff asked the court to direct a verdict for him, which was denied; to which.exception was taken. Defendants also moved for a direction in their favor, which was granted; to which plaintiff took no exception.

No motion for a new trial was made, nor is there any order denying any such motion entered or appealed from, and the only exception appearing in the case is the one to the refusal of the court to direct a verdict in favor of the plaintiff. The practice as to what questions are thus raised upon appeal has been settled in numberless cases, but for our purpose it will be only necessary to refer to one, namely, The Third Avenue R. R. Company v. Ebling, 100 N. Y., 98, the head note to which correctly states the rules. •

“An appeal from a judgment entered on a verdict must be determined solely upon exception's taken on the trial. An exception can be taken only to a ruling by the trial court upon a question of law. Where there is an exception to a ruling of the court as to the sufficiency of the evidence to establish a fact in issue, and the defeated party desires to move for a new' trial, he. must do so in the first instance at the trial court or at special term. Not having done this, no question affecting the merits or the sufficiency- of the evidence to support the verdict may be raised at general term.”

Both parties here having asked the court to direct a verdict, and neither having requested any fact to be submitted to the jury, it was a consent that the court should decide and pass upon the facts. If there is any evidence to uphold the decision it must be sustained. As stated, there was no exception to the verdict directed in favor of the defendants; the only, exception taken being to the refusal of the court to direct a verdict in favor of the plaintiff. Thus, one question only is properly raised upon this appeal, and that is as to whether the court upon the evidence was bound to direct a verdict for the plaintiff as matter of law.

The plaintiff claimed under a bill of sale, and considerable evidence was introduced upon the direct and cross-examination of the plaintiff’s witnesses affecting the validity and good faith of this bill of sale. Unless, therefore, upon this testimony the case was so clearly in plaintiff’s favor that the refusal to direct such a verdict was error of law, the judgment appealed from must be affirmed.

An examination of the record will show that such a case was not made out in plaintiff’s favor. The strength of plaintiff's title under the bill of sale was weakened by evidence tending to show that thereunder there was no actual or continued change of possession ; that taking it together with the other mortgages and conveyances made to the plaintiff it might be regarded as a conveyance in trust to the plaintiff for himself and two other creditors ; and the testimony also presented a question whether or not the bill of sale was made in good faith and for an honest purpose.

As stated, if there is any evidence upon either of these propositions to justify the finding of the court, then the verdict will not be disturbed.

It is unnecessary for us to point out specifically the evidence tending to support the conclusion upon any of these questions other than the principal one upon which the learned judge below seems to have mainly relied in directing the verdict in defendant’s favo:: That presented the question as to whether or not the bill of sale was part of one and the same transaction with the execution and delivery of two mortgages and two trust deeds together with the conveyance of the Ferine homestead and bill of sale of the furniture in that house, by which all the property owned by Mrs. Ferine was transferred to the plaintiff for himself and in tyust for two other creditors. It must be conceded as a proposition of law that if the transactions relating „to all these transfers by Mrs. Ferine to plaintiff amounted in effect to a general assignment for the benefit of only a portion of Mrs. Ferine’s creditors, this under the statute would render the entire transaction and the instruments by which the same were sought to be effected illegal and void.

After considerable testimony was furnished as to the trust deeds, mortgages and other conveyances already alluded tó, the court with this provision of law in mind questioned the plaintiff’s attorney who attended to the details of procuring the various conveyances, as follows:

By the Court: “ Q. State what connection there was between the bill of sale and the other instruments ? A. They were all made at the same time and as part of the same transaction.

“Q. And to accomplish the same purpose? A. Yes, sir.’’

This together with the other testimony in the case tending to show that every dollar, of property owned by Mrs. Ferine was transferred to the plaintiff in trust for the payment of plaintiff and two other creditors was sufficient to justify the refusal by the court to direct a verdict in plaintiff’s favor.

There is but one other question that need be considered, and that is the contention of the appellant that the court erred in directing a verdict for the defendants instead of directing a verdict for the plaintiff for the reason that the supposed defense was not set up in the answer.

In support of this position appellant refers to the well settled rule of law, that a defense not pleaded but proven upon the trial is no defense; that a judgment can only be rendered secundum allegata et probata. This principle has in no way been violated, as a moment’s reflection will demonstrate.

The plaintiff claimed to be the owner of the property levied upon by the attaching creditor and brought replevin therefor, asserting and claiming ownership under the bill of sale.

It was therefore part of the plaintiff’s case to show that he had title to the goods sought to be replevined.

The issue of title was tendered by the pleadings and the burden ■ of showing his title was upon the plaintiff. It was in supporting this burden that t'he.evidence which, has already been referred to was introduced, and when the plaintiff rested both parties asked for a verdict in their favor. The court in effect held that the circumstances under which the bill of sale, was received did not give title to the plaintiff, and hence the foundation upon which all •of plaintiff’s claim rested was swept away.

We are of opinion therefore that the judgment appealed from .should be affirmed, with costs and disbursements.

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


text:
    The First National Bank of Rondout, Pl’ff, v. Jose F. Navarro, Impl’d, Resp’t. In the Matter of the Application of Samuel G. Metcalf, Rec’r, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    .1. Receiver—Fraudulent conveyance—Injunction—Loches.
    Where a receiver appointed in supplementary proceedings waits for two years after learning of a transfer of property by the judgment debtor and after suit to set the same aside has been begun by a judgment creditor other than those at whose instance he was appointed, before taking any action in relation thereto, such delay is such loches as to authorize a denial of an application to enjoin the prosecution of such creditor’s action.

      H. Same.
    An injunction will not be granted on a petition.
    .3. Same—Attorney.
    It is not incumbent on the court, nor can the receiver, even with the consent of all the parties to the proceeding, require the court as a matter of right to give him authority to employ a particular attorney to bring .action to set aside a transfer made by the debtor.
    Appeal from an order denying a motion for an injunction.

      Chas. A. Murphy, for app’lt; Samuel Gr. Metcalf, as receiver; (G. 0. & L. S. Hulse, for the resp’t, Del Valle; Davies, Short & Townsend, for the resp’t, Navarro; Hyland & Zahriskie, for the iresp’t, Hyland.
   O’Brien, J.

The appellant, as receiver appointed in proceedings supplementary to execution, made application to the special term for an order authorizing him to bring an action to set aside a certain transfer of life insurance policies made by one Jose F. Navarro to Josiah A. Hyland, on the ground that the transfer was made with intent to hinder, delay and defraud creditors of said Navarro, and to employ Charles A. Murphy, Esq., as attorney in said suit, and for an injunction restraining the prosecution of an action now pending in this court by one Jose Del Valle, as a judgment creditor of said Navarro, to set aside said assignment or transfer of policies so made to Hyland.

An order was made granting the receiver leave to bring such: an action, but in. all other respects it was denied, and from the-portion of the order denying the other relief asked for the receiver-appeals to this court The application was based on the petition of the receiver appointed- in five several actions, and in two other* actions brought against the said Navarro by the IT. S. Illuminating Company and one M. Yal and another, upon a consent and request signed by H. C. Soop, as vice-president of the plaintiff in. said five actions, and the consent of the plaintiff’s attorney in said other two actions. It will be observed that Mr. Del Yalle is not. a party to any of the actions in which said receiver was appointed.. The receiver was appointed on July 25, 1889, and a judgment*, creditor’s action by Del Yalle was commenced in October, 1889,, over two months after the receiver was appointed. The receiver-states that it was not until the.fall of 1890 that he first-learned that the five policies of insurance were in existence, and that the-same had been assigned to Hyland subject to a loan thereon off $15,000, to secure which the policies had been pledged. The receiver admits that at the same time he knew that an action had! been commenced to set aside such assignment as void by Dell Yalle, and that this action had been tried and had resulted adversely to the latter, who thereafter appealed to this court, which, court reversed the judgment of the court below and granted-a new trial. Thereupon* this application upon petition was made. Although it will thus be observed that the receiver waited for two-years before taking any steps after he ascertained that the policies-were in existence, and á suit was commenced by Del Yalle, he-claims that he is' vested with all the right,, title and interest off said Navarro in and to all his property, and is entitled to these: policies, subject to the amount for -which they are pledged, and,, moreover, that he is the sole party entitled to prosecute an action? to set aside the alleged fraudulent transfer thereof, and he is, therefore, entitled to the injunction of this court restraining the-prosecution of said Del Yalle’s action. .As stated, the application for the injunction was denied, although the court recognized the?* receiver’s right' to prosecute such an action.

If for no other reason, the'delay in moving for the relief now asked for, coupled with the uncertainty as to whether the receiver would ever bring his action, or whether it would ever be prosecuted, were sufficient to justify the court’s denial of an injunction.. Apart, however, from this, we have been referred to no authority by appellant which” would justify the granting of an injunction: on a petition. The provisions of the Code [of Civil Procedure,. §§ 603 and 604, specify in what cases an injunction order may be-granted. These sections are seeming authority for the view that: whether we regard the relief by injunction to depend upon the-nature of the action or to depend upon extrinsic facts, it must,, in the former case, appear from the complaint that plaintiff is entitled thereto, and in the latter that an injunction order is applied for in an action. As to so much of the order appealed from as denied the request of the receiver that he should bé authorized to -employ any particular attorney, this, though no objection was made, was proper. It was neither incumbent on the court, nor could the receiver, even with the consent of all the .parties to the proceeding, require the court, as a matter of right, to give such authority.

We are of opinion, therefore, that the order appealed from .should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., concurs.


text:
    George De Mets, Resp’t, v. Frank Moss, Ex’r, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    Decedent’s estates—Conversion—Proof of ownership.
    On a reference of a claim for conversion against an ■ estate the plaintiff testified that the goods in question were given to him, but subsequently-testified that they were a wedding present; that they were given to himself and wife, and that he was not present when the gift was made. Reid, that the evidence was too slight to justify the maintenance of a claim •against the estate of a deceased person who had. been in possession of the goods for many years before his death.
    Appeal from judgment entered upon report of a referee.

      8. B. Brague, for app’lt; Coles Morris, for resp’t.
   Van Brunt, P. J.

The plaintiff presented a claim against the defendant for conversion by Maltby J. Lane, deceased, of ■certain furniture. The claim was rejected and referred to a referee, who found for the plaintiff. The claim was for certain suits of furniture which it appeared had been in the possession of Maltby J. Lane, deceased, for a considerable period prior to his «death, and which it is alleged he sold and converted shortly prior thereto.

It is not necessary to discuss at any great length the evidence cri this case, because there is one feature which is plainly presented and which requires a reversal of the judgment and a new reference.

During the trial much evidence was introduced of personal transactions between the plaintiff and the deceased, and in fact the claim was made out largely by such improper evidence. But as to a portion of the property for which a recovery has been liad, there was not the slightest proof of ownership in the plaintiff; • and the amount of credence which is to be placed upon the plaintiff’s testimony is strikingly exemplified by his method of testifying in respect thereto, tie testified that the brother of his wife gave him that suit. Upon being asked was it a wedding present? he answered “ I suppose so; I was on friendly terms at that time with Richard H) Lane; I don’t remember what he said when he ;gave that bedroom suit” And then in answer to a question whether that bedroom suit was not presented to bis wife, he said; ‘“It was. presented to us both.’-’ And then in another part of the examination he swore that the present was made to himself and his wife together; and yet in answer to the question: “ Do you mean by that answer that you was included in that present ?’” Ms reply was: “ I was not there when the gift was given thus-showing that he knew'nothing about the gift or its nature. And this is the only evidence tending to show that the plaintiff was-the ownerof this property. It was a wedding present'given by his wife’s brother, and the plaintiff, without having any knowledge further than that, claims the property as his own. This-seems altogether too slight evidence to justify the maintenance of a claim therefor against the estate of a deceased person who had been in possession of the furniture many years before his death.

We think it is a very grave question as to whether or not the-proof was not amply sufficient to show that the debt had been outlawed before the death of Lane. It appears from the evidence? of this reliable witness that a demand was made for this furniture-as far back as 1882, and refused. And then, after he sees what, the effect of such testimony is, he attempts to retract what he had. said, and claims that they submitted gracefully when Mr. Lane refused to give up the furniture.

We are of opinion that the judgment should be reversed, and a new referee appointed to pass upon the claim, with costs to the? appellant to abide the final result of the proceeding. .

O’Brien, J., concurs._


text:
    Francis E. Johnson, Individually and as Ex’r, Resp’t, v. The New York Elevated Railroad Co. et al., App’lts. (2 Cases.)

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)
    Railroad—Elevated—Findings.
    When the judge hás expressly decided that as matter of law damagésfor certain matters-could-not be awarded as an alternative for avoiding an. injunction, it cannot be supposed that he nevertheless included them in-, his computation of the amount to be paid for that purpose.
    Appeal from judgment in favor of plaintiff, entered upon decision of the court at special term.

      Davies & Sapallo, for app’lts; Francis 0. Seed, for resp’t.
   Patterson, J.

The principal ground upon which a reversal-of the judgments in these cases is asked is, that the learned judge-before whom they were tried having found as a conclusion of law that damages should not he awarded for future running of trains, it, was error to include damages of that character in determining what amount should he paid for the-easements to prevent the-issuance of an injunction. But there is nothing in" the whole-record to show that the judge did any such thing. He made certain, findings of fact that the engines in passing emitted steam, smoke, ashes and cinders, and that noise was created and that these-things • necessarily would continue; but it is evident those facts-were found as leading up and contributing to the right to the injunction only, and there is nothing to show that when he came to-fix the value of the easements he made any allowance for the-matters referred to. It is not to be supposed that when the-learned judge expressly decided that as matter of law damages; for the matters referred to could not be awarded as an alternative; for avoiding an injunction, he nevertheless included them in his computation of what amount should be paid for that purpose, and when all the findings are read together there is no inconsistency in them.

There was enough evidence to support the determination of the-court as to past damages, and also as to the value of the easements, taken, and we can find no substantial error in the record.

The judgments must be affirmed, with costs.

Van Brunt, P. J., concurs.


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

text:
    Marx Ottinger et al., Resp’ts, v. The New York Elevated Railroad Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    1. Railroad—Elevated—Evidence.
    In an action against an elevated railroad it is not improper to ask a witness what is the rental value of plaintiff’s premises with the free use of all above the surface of the street for light, air and access to and from the-' building.
    2. Same—Requests to bind—Noise.
    A request to rule that plaintiffs had no easements in the street which, authorized them to control the amount of noise made in said street by the. permission of the city, is too broad, as it would include the view that an excessive and abusive street noise is not actionable. Such request is also, immaterial where the court expressly refuses to award any damages for noise.
    3. Same.
    Plaintiff testified as to the rents of the property on his direct examination without objection. On cross-examination it was made to appear that-, there were written leases. Held, that a refusal Jo strike out plaintiff’s evidence was not error.
    4. Same—Election between causes op action.
    Where the complaint in an action to restrain the maintenance of an. elevated railroad contains an allegation that the operation of the railroad, will constitute a nuisance, such allegation may be regarded as surplusage, and plaintiff cannot be called upon to elect between causes of action.
    Appeal from a judgment of the special term.

      S. B. Rogers, for app’lts; W. O. Beckham, for resp’ts.
   O’Brien, J.

The judgment enjoins the maintenance and operation of the defendants’ elevated railway in front of the premises number 278 Pearl street, unless defendants pay plaintiff $5,000 as-, the price of certain of his easements. There is also a money judgment of $8,807.86 damages and costs.

There are five questions raised upon this appeal.

First. That it was error to admit opinions of .witnesses upon the-amount of the injury to plaintiffs’ premises.

Second. That it was error to refuse to find that plaintiffs had no easement which would authorize them to control the amount of noise made in the street by authority of law.

Third. It was error to receive oral evidence of the contents of written leases.

Fourth. It was error to deny the motion to compel plaintiffs to elect between their inconsistent claims of nuisance and trespass, and to deny a jury trial of the latter issue.

Fifth. That the amounts allowed for past damages and injury to the fee were excessive and unsupported by the evidence.

• The questions here involved have been so often passed upon in these cases that we would be justified, without assigning any reasons, in indicating simply the conclusions to which we have arrived. We deem it best however to briefly state the grounds upon all the points raised in the order in which they are presented which lead us to affirm the judgment appealed from.

First. As to the opinions of witnesses the question objected to •and to which an exception was taken was one by- the court put tq an expert as follows :

“ Q. What is the rental value of that property in question with the free use of all above the surface of the street, for light, air and -access to and from the building? ”

This precise question was passed upon in Korn v. The Met. El., 59 Hun,505; 37 St.Rep., 597, which weare informed was in December, 1891, affirmed by the court of appeals. 41 id., 949. The Korn case holds that the question objected to does not conflict with the rule laid down in the McGean case, 117 N. Y., 219; 27 St. Rep., 337. See also Mitchell v. The Metropolitan Railway Co., 31 St. Rep., 80.

, Second. The defendants asked the court to make the following xul-ing, which was refused: There are no easements or other rights in the said street appertaining to said premises which authorized the plaintiffs to • control the amount of noise made in said : street by the permission of the mayor, aldermen and commonalty of the city of Mew York.”

This as an abstract proposition of law is not correct, as it would include the view that an excessive and abusive street noise is not -actionable. It was moreover entirely immaterial, as the court •expressly refused to award any damage for noise.

The defendants sought to present the same question in another form by requesting the court to find, which was refused, that the plaintiffs do not own in fee to any portion of the bed of ■said street in front of and abutting on the premises mentioned in the complaint.”

This finding may be entirely true in point of fact, and in one view the question whether plaintiffs owned the fee or merely had -easements might be material.

If they had easements only, these would not be infringed by the noise made by the ordinary running of defendants’ road, whereas, if plaintiffs owned the fee, the city would have the limited and •specific easement of passage only, and all other rights would be in the abutter. I"n this case, however, whether the plaintiffs owned the fee or not resulted in no injury to defendants, for, as already stated, the court expressly refused to find that the plaintiffs were entitled to any damage by reason of noise caused by the maintenance or .operation of defendants’ road.

Third. The error claimed to have been made by the trial judge in receiving oral evidence of the contents of written leases is grounded upon the fact that after one of the plaintiffs had testified on direct examination as to the rent of the store from 1881, it was brought out upon cross-examination by defendants that the tenant of the first floor and basement had a lease by the year, sometimes-two years and sometimes three years, and the witness stated that the leases were m writing. A lease subsequent to 1887 was then, put in evidence, and because no other leases were offered or produced, counsel for defendant moved to strike out all the testimony of this witness as to the rent of the first floor and basement prior'to the 10th day of February, 1887, on the ground that the-written leases of that property were not produced.

We think the court properly denied the motion.

The testimony as to the amounts of rent received was given upon the direct examination without objection nor was any exception taken to such evidence. It is not pointed out upon what-theory such testimony should be stricken out, because it was made to appear by the defendants’ cross-examination that years prior to a period covered by a written lease produced other written leases had been executed between the parties. If the defendants had insisted while the witness was being examined on the-direct upon the production of the leases, they might have been produced, or evidence given to show that they were lost or destroyed..

We do not think, therefore, that in the ruling made there was-error.

Fourth. Defendants claim that plaintiffs should have been compelled to elect between their inconsistent claims of nuisance and trespass and that as to the latter they were entitled to a jury trial..

In the Johnson case decided by this general term m November, 1891, 41 St Rep., 682, the same motion to compel plaintiffs to-elect was made, and the refusal to grant the motion was held not-to be an error which would justify a reversal of- the judgment.

In this latter case and in.the Shepard case, 117 N. Y., 442; 27 St. Rep., 705, the court construed a complaint similar to this one, and in determining that the action based thereon was one to restrain a continuing trespass, held that the mere use of the word “nuisance” could be regarded as surplusage.

- As to plaintiff’s right to .a jury trial this question has been settled by the decision of the court of appeals in the Lynch case, which was handed down in December, 1891, holding in effect that, on such a complaint as the Code stood a year ago prior to the amendment, defendants were not entitled as matter of right to a. jury trial. 41 St. Rep., 541.

Fifth. We have examined the evidence for the purpose of determining whether the claim that the damages awarded were ex-, cessive was well taken and we are of opinion that the evidence given as to the physical injuries to the property justify the findings of the court, and that where the judgment as here has ample proof to support it, it should not, as was said in the McGean case, be reversed, even if some slight error appears in the admission of testimony.

On.the whole case, therefore, we are of opinion that the judgment should be affirmed, with costs and disbursements.

Lawrence, J., concurs.

Van Brunt, P, J.

I concur in the conclusion arrived at by .Mr Justice O’Brien m the case at bar. But I cannot find from the record that there was any special claim made that as to the issues m respect to trespass the defendants were-entitled to a jury trial. Neither do I find that m the case of Shepard v. Manhattan R. R. Co., 117 N Y, 442 , 27 St. Rep., 705, any question was raised m respect to the complaint being for a nuisance or a trespass. In the case at bar there is no allegation m the complaint tending to show that it was the intention of the pleader to declare •as for a nuisance, the only allegation being that certain things are •offensive and disagreeable to, and constitute a great nuisance to and on the building of the plaintiff, and to the tenants and occupants thereof. But it further appears from the other allegations in the complaint that this allegation was merely intended as a de.scription of the effects of the acts complained of upon the premises of the plaintiff; and not in any way to characterize the nature ■of the action ; because we find that m the other allegations in the -complaint these acts are spoken of as wrongful, illegal and a trespass upon the premises, and there is nothing in the complaint indicating in any way that it was the intention of the pleader to demiare other than as for a trespass.

Therefore there was no foundation whatever for the motion made to compel the plaintiffs to elect as to whether they proposed to proceed as for a nuisance or as for a trespass. Hence the question as to a right to a jury trial was one which rested in the dis■cretion oi the court; and such discretion does not seem to have been improvidently exercised.

If the action had been one for a nuisance, there seems to be no -question but that the defendants would have been entitled to a jury trial; for the plaintiff, although he may by his method of pleading har himself from demanding a jury trial, cannot thereby prejudice the right of the defendant thereto. ■

The judgment should be affirmed, with costs.