text:
    WILLIAM HENRY OSTRANDER, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Writ of error to the Oyer and Terminer — only questions raised by exceptions can-be reviewed — chap. 446 of 1874, does not deprive a prisoner of the right, under a plea of not guilty, to have the question of Ms sanity tried by the jury — nor' does the finding of a commission appointed thereunder — Evidence — what may be shown to impeach a witness — statements made in the prisoner’s presence are admissible — Ihe General Term cannot grant a new trial on the merits or because of newly discovered evidence —Irregularities of juror's cannot be proved by their subsequent statements.

    Upon a writ of error to review a trial and conviction had in a Court of Oyer and Terminer the General Term can only consider such questions as were raised by exceptions duly taken in the court below.
    A writ.of error does not bring up for review an order, made at a Court of Oyer and Terminer'held prior to the term at which the relator was convicted, denying a motion for leave to withdraw a plea of not guilty and interpose a plea of insanity.
    Chapter 446 of 1874 does not take away from one accused of crime the right to have the question of his sanity passed upon by the jury under a plea of not guilty.
    .The provisions of the statute authorizing the court to appoint a commission to-pass upon the question of the prisoner’s sanity are permissive only and not compulsory. The finding of the commission does not prevent the prisoner from litigating the question of his sanity over again upon the trial under a general plea of not guilty. •

      The plain! iff in error was tried and convicted for the murder of his brother Lyman. The defense was that he acted in self-defense. Upon the trial a witness named Morse, called for the defense, testified that the sister of the plaintiff in error, Viola, told him that when Lyman fell after he was shot he had a revolver in his hand. On cross-examination he denied that he told Viola, in that conversation, to keep still about the matter, not to say anything and make it as light as she could for her brother. Subsequently a witness called for the prosecution was allowed, against the prisoner’s objection and exception, to testify that he heard the first witness Morse make such a statement to Viola in the course of the conversation referred to.

      Held, that the evidence was properly admitted as tending to show the hostility of the witness Morse to the prosecution.
    Another witness was asked to state what the deceased had said as to an altercation between him and the prisoner on the morning of the day he was killed, the witness having already stated that the prisoner was present at the time. The court held that anything that was said in the prisoner’s presence was admissible. The witness then testified that the deceased said that the pistol he had in the morning was not good for anything, that he only took it out to scare the prisoner and that he would not hurt a hair of his head.

      Held, that under the circumstances it must be assumed that the prisoner was present when his brother made this statement; that if he were not it rested on him to prove it.
    That if the prisoner had been informed some three hours before the commission of the crime that the pistol which was alleged to have been in his brother’s possession was not good for anything, it was proper for the jury to have that fact before them in determining the motive which actuated him at the time of the killing.
    The court at General Term cannot entertain a motion for a new trial upon the merits, or on the ground of newly discovered evidence.' v
    It is a well understood and well settled rule that the affidavits or declaratiohs of jurors cannot be received to impeach their verdict.
    Writ of error to the Oneida County Oyer and Terminer, to review the trial and conviction of the plaintiff in error of the crime of murder in the first degree. The trial took place at the October Oyer and Terminer in 1881, held in the Oneida Circuit. The plaintiff in error was sentenced to be hanged on the 15th day of December, 188.1. On the 12th day of December, 1881, he was respited by the Governor, and on the 28th of January, 188$, further proceedings were stayed by a justice of this court upon the allowance of the writ of error.
    Upon the fith of the previous February, 1881, the defendant, in the Oyer and Terminer, had interposed a plea of not guilty to the indictment. Subsequently, upon an application made in March, 1881, by him, the court refused to allow the defendant to withdraw his plea of not guilty and interpose a plea of insanity. Upon the trial of the indictment, no evidence was given or offered relating to any alleged insanity. On the 21st of January, 1882, a motion for a new trial was made before the justice presiding at the Oyer and Terminer, upon the exceptions taken at the trial and upon the ground of alleged misconduct and irregularities of the jury, and also upon the ground of surprise in regard to the evidence of Andrew Williams and his wife, and upon the further ground of newly discovered evidence, which motion was denied, and no appeal has been taken from the order then made. In April, 1882, the former counsel of the prisoner withdrew from the case, and on the 30th of May, 1882, his present counsel was appointed by an order, of the Oyer and Terminer to take, charge of the case.
    A motion was made at the General Term for a new trial, after notice thereof to the district-attorney, upon the following grounds, viz.:
    “ 1. Upon the ground of newly discovered evidence, important and material for a fair and just determination of this case.
    2. For the misconduct and irregularities of the jurors, who were sworn to well and truly try and true deliverance make between the people of the State of New York and William Henry Ostrander, etc.
    3. For errors of the Court of Oyer and Terminer in refusing to allow the plaintiff in error to withdraw his former plea of not guilty, or to expunge the same from the record of said court, as appears in said return of the clerk to the writ of error herein.
    4. Upon the ground of surprise, to wit: By the introduction of evidence by the prosecution, which, if true, necessarily worked great prejudice to said Ostrander. * *
    5. Upon exceptions to the admission or rejection of testimony during the progress of said trial.”
    At the June term of this court, a motion was made upon which an order was granted requiring the plaintiff in error to serve the printed case herein upon the district-attorney of Oneida county, on or before July 27, 1882, and to file the same with the clerk of Erie county on or before that day; also, the printed points herein; also, all affidavits to be used or submitted herein by the plaintiff to be served by July 10, 1882, and that all counter affidavits to be used, be served by tbe twentieth of July. Also, providing that, there might be presented to the court a certified copy of the proceedings before the oyer and terminer held by Judge Churchill at Rome, March, 1881, upon the refusal to allow the plea of not guilty to be withdrawn, and also “ thaffthere may be submitted the certificate of said judge as to what then and there occurred, and his decision thereon.” Affidavits and counter affidavits have been served and filed as .the order to which we have just referred permitted. A certificate was presented, bearing date July 24, 1882, given by Judge Churchill, in respect to the proceedings in the Oyer and Terminer in March, whore the application, was made by the prisoner’s counsel for leave tb withdraw the plea of not guilty and “to plead instead, insanity as a whole defense to the indictment,” in which certificate it is stated : “ Objection was made on the part of the people, that that plea should have been presented at the time of the arraignment and could not be presented at any other stage of the trial, and the statute upon the subject was read. The court denied the application, and gave two reasons for its decision. First. That under the statute, it was very doubtful whether the court had the power to grant the application. Second. That the case did not seem to be one that required the court to exercise a doubtful power in behalf of the prisoner, since he would still have the full benefit of insanity as a defense under his plea of not guilty.
    (Signed) . JOHN C. CHURCHILL,

      Justice of the Supreme Court.

    July, 24, 1882.”

      M. D. Barnett, for the plaintiff in error.

      W. A. Matteson, district-attorney, for the people.
   Hardin, J.:

In the argument submitted to us by the learned counsel for the plaintiff in error, it is urged that we should set aside the verdict against the prisoner, upon the ground that the same is “ against the weight of evidence ” or “ against the law,” or that “ justice requires a new trial,” whether an exception shall have been taken in the court below or not, and our attention is called to the act of 1855, and to The People v. McCann (16 N. Y., 58); Rogers v. The People (3 Parker’s Cr., 652), and Done v. The People (5 id., 364.) The position taken by the counsel cannot be sustained. The statute of -1855 does not apply to trials had in the Oyer and Terminer. In such courts exceptions must be taken, in order to authorize a review here of the rulings and decisions of that' court. Section 33 of the Third Revised Statutes (6th ed., 1031), provides that the clerk shall make a return to the writ of error “ containing a transcript of the indictment, bill of exceptions and certificate staying judgment.” At page 1030, § 26, of .the same volume, it is provided as follows, viz.: On the trial of any indictment, exceptions to any decision of the court may be made by the defendant in the same cases and manner provided by law in civil cases, and a bill theAof shall be settled, signed and sealed.” Exceptions must be taken at the trial to present a question for review here.. (People v. Casey, 72 N. Y., 393; Gaffney v. People, 50 id., 416; Fralich v. People, 65 Barb., 48.)

"We are of the opinion that the writ of error does not bring before us for review the decision made at the March Oyer and Terminer. (Freeman v. People, 4 Denio, 9; King v. People, 5 Hun, 297; People v. Gardiner, 6 Park. Cr., 149; Willis v. People, 32 N. Y., 720, opinion of Denio, Ch. J.)

Besides, if the decision made at the Oyer and Terminer in March, 1881, was before us for review, we should not be inclined to disturb the same, as it appears:

First. That the same was made in the exercise of the discretion of that court.

Second. Chapter 446 of the Laws of 1874 was not intended to, and does not in terms, take away the right of trial of the question of insanity under the plea of not guilty. Under that law, had the plea of insanity been interposed, the court would not have been compelled to appoint a commission, although it would have the right to do so. The prisoner has no absolute right given to him by that statute to demand a commission after such plea is interposed. The statute is permissive and declares, viz. (§ 30, p. 570): “ The court shall have power, with the concurrence of the presiding judge thereof, to appoint a commission.” * * * Nor does the statute declare the finding of any commission that may be issued in such case conclusive upon the prisoner. He still would have the right to litigate the question of his insanity over again on the trial of the main issue under a general .plea of not guilty. (Freeman v. People, 4 Denio, 10.)

Third. It appears that the prisoner, upon • the trial under the plea of not guilty, althonghj as we have seen, he was authorized to, offered no proof tending to establish his insanity at the time of the commission of the crime, or at any time subsequent thereto, and it is not unreasonable to suppose he thus waived any defense which he was authorized to make upon the ground of insanity. (Pierson v. People, 79 N. Y., 429.)

Fourth. If the prisoner is insane, a commission may yet be appointed by the Governor of the State to inquire in respect to' such insanity. (Sec. 21, 3 R. S. [6th ed.], p. 845.)

The crime whereof the plaintiff is charged was committed on the 26th- day of December, 1880, at Camden, Oneida county, upon George Lyman Ostrander, whose death was caused'by the plaintiff in error by the discharge of a revolver, and the circumstances of that crime are principally detailed by Elizabeth Ostrander, the mother of the deceased and of the plaintiff in error, by Samantha Ostrander, Yiola Ostrander, Carrie Ostrander, Gilbert Pettis and others, and certain threats made by the plaintiff were shown by Mrs. Eugene Williams and Andrew Williams, and from the testimony it appears that evidence was given tending to show that the crime was “ perpetrated from a deliberate and premeditated design to effect death; ” and from a careful perusal of the evidence we are satisfied the trial court was justified, and required by the rules of law, to submit to the jury the question as to whether the crime came within the statute in regard to murder in the first degree, and we are not at liberty to disturb their verdict upon the finding of the facts essential to constitute the crime whereof they have convicted the plaintiff. The question of whether the accused acted in self-defense when he fired the pistol and thereby deprived his brother of his life was cautiously and fairly submitted to the jury, and we see no occasion to disturb their verdict, and should not be persuaded that it was our duty to do- so were there an exception in the case fairly presenting that question for our consideration. (Leighton v. The People, 12 W. D., 467.)

Among the exceptions to which our attention has been drawn by the counsel for the plaintiff in error is one occurring when Ambrose Osburn, a witness called for the people, was giving his testimony. The bill of exceptions show that Frank A. Morse, a witness called for the defendant, testified as follows:

“ Q. In that conversation with Yiola Ostrander did she (Yiola) say to you that when Lyman fell, after he was shot, he had his revolver in his hand?” The answer being, “Yes, sir.”

The witness was cross-examined by the district-attorney, and Morse was asked the following question:

“ Q. Did you tell Yiola on that day to keep still about this matter, not to say anything and make it as light as she could for Henry ? A. No, sir.”

In the course of Ambrose Osburn’s testimony he was ■ asked: “ Q. Did you hear Frank Morse say to Yiola to keep still and say nothing about the case for it would be so much better for Henry ? ”

In the record following this question are found the words, viz.: “ Objected to.” Then follows again: “ The Court — If it is the ■same question put to Morse it may be answered. Exception taken for the defendant..” The witness then answered: “ I did hear him say that.” It is now insisted that the question was “ collateral to the issue, and the object and effect of it was to impeach Morse. It was no part of the conversation had in the evening, with Yiola; ” .and, also, that the people were bound by Morse’s answer, he having testified that he-did not tell Yiola to keep still about the matter and not to say anything and make it as light as he could for Henry.”

It must be borne in mind that the objection is general, and that a general objection is unavailing to raise a position which might have been obviated had the -attention- of the court been specifically directed to the ground of the objection. Apparently Morse had given in his testimony part of -an interview which transpired between himself ■and Yiola, and denied the balance; and he denied that part of the interview that tended to establish his interest in the defense of the case and his hostility to the prosecution; and when he denied that he had advised Yiola to keep still and make it as light as she could for Henry,” it was allowable to establish- that declaration, made by him, by the witness Ambrose Osburn. Ve are, therefore, of the opinion that the exception presents no error. (Starks v. People, 5 Denio, 108 ; Newton v. Harris, 6 N. Y., 315 ; Hotchkiss v. Germania Ins. Co., 5 Hun, 91; Patterson v. People, 12 id., 138.)

' Next our attention is called to an exception found in the record, occurring during the redirect-examination of Elizabeth Ostrander,, while she was narrating an interview with the deceased in the morning of the day of the'commission of the crime, and after they had had the morning altercation, and after she had stated that the prisoner was in the room, as to which the record shows as follows, viz.:

“ Q. "Will yorr state what Lyman said about why he had taken this revolver?” [Objected to.] The Court — Anything said in the presence of Henry may be stated. [Exception for defendant.] “A. He said he took it out to scare him; he- knew the pistol wasn’t good for anything; he took it out to scare Henry; he done it on purpose to scare Henry; he said he wouldn’t hurt a hair of his head; he did it to keep him still.”

Erom the record, it appears that the court made its ruling based upon the testimony then given by the witness, that the accused was' in the room when the declaration made by the deceased was so made. If ■ the prisoner's counsel had then established, as he now contends, that the declaration was not made in the hearing of the accused, and after thus establishing the fact, had moved to strike out the evidence and his motion had been denied, the position here taken would have been pertinent, but, as the record stands, it must be assumed that the declaration was made in the presence of the accused. It bore upon the question whether the prisoner acted in self-defense at the time he discharged his pistol and caused the death. If the- prisoner had been informed, some three hours before the commission of the crime, that the pistol which was.alleged to to have been in the possession of Lyman, was not good for anything,” it was proper that the jury should have that fact before them in determining the motive which actuated the defendant at the time of the commission of the crime. Besides, the record shows that the court, at a subsequent stage, ruled that the evidence should be disregarded by the jury and instructed them to that effect, and that instruction was sufficient to cure any error that had been committed in regard to the reception of that evidence. (Linsday v. People, 67 Barb., 549; S. C., affirmed, 63 N. Y., 143; Ruloff v. People, 45 N. Y., 223 ; People v. Greenfield, 23 Hun, 454; S. C., affirmed in 85 N. Y., 75.)

Next, our attention is directed, to án exception taken while Elizabeth Ostrander was giving her testimony in respect to threats made by the accused, and the record shows the question and exception was as follows, viz.:

“ Q. Will you bring to your mind the threat made at that time and tell the jury what it was ?” [Objected to as uncertain, indefinite, incompetent and improper.] “A. The time Stephen — these boots — made a mistake and took these boots to Connecticut. Mr. Sayles objected to that and asked to have it stricken out. Stricken out.”

We are of the opinion that the portion of the record that we have quoted presents no error.

Having found no error in the progress of the trial presented by 'the bill of exceptions calling upon us to disturb the verdict of the jury, we now turn our attention to another branch of the case presented by the affidavits submitted by the plaintiff in error upon the motion for a new trial upon the merits,” or on the ground of ¡newly discovered evidence.

• First. We think, by the authorities in this State, it is well settled that such a motion as the one now before us cannot be entertained by this court. In the case of Eastwood v. People (3 Parker’s C. R., 25) the question of practice was not considered, although affidavits were there read to correct errors arising out of irregularities; and as the question of practice was not raised and discussed in that ease we cannot follow it as an authority sanctioning such practice. The practice is unauthorized as the following authorities ■establish: Fralich v. People (65 Barb., 48); Willis v. People (32 N. Y., 715); Gaffney v. People (50 id., 416); People v. Casey (72 id., 393); People v. McMahon (2 Parker, 672).

Again, it appears that a motion • was made in the court below upon the ground of newly discovered evidence and of the alleged misconduct of the jury, and many of the affidavits now presented were served and used on that motion. That motion was denied and no appeal has been taken from the decision of the court below on that motion, nor has any certiorari been obtained to review that decision. We are not authorized to review it, as the decision of an inferior tribunal can only be reviewed when properly presented to this court, and it may well be,doubted whether we have any jurisdiction to review, the decision made upon that motion. (Leighton v. People, 12 Weekly Dig., 467.)

Nor do we think, upon the papers and record before us, according to the well settled practice, we have any authority to entertain a motion to set aside the verdict of the jury upon the ground of their supposed misconduct. Questions relating to the conduct of the jury properly belong to the trial court, and can be considered in this'court only when presented by way of a review of the decision or determination of the inferior court. ( Willis v. People, 32 N. Y., 719.) Chapter 295 of Laws of 1876, and Leighton v. People (supra), construing that statute.

As this is a capital case, although we are of the opinion that the questions just adverted to are not properly here for review,. and although we cannot sanction the practice adopted by the plaintiff in error, we have looked into the affidavits that have been submitted to us in respect to the alleged newly-discovered evidence, and also the opposing affidavits, and we are satisfied, from a full inspection of them, that were the question properly before us in respect to the newly discovered evidence, it would be our duty to deny the application made in that regard. (Carpenter v. Coe, 67 Barb., 411; Gautier et al. v. The Douglass Mfg. Co. and others, 52 How., 325 ; Harrington v. Bigelow, 2 Denio, 109.)

The affidavits which are presented in behalf of the people clearly point to over persuasion, not to say fraud, practiced upon Elizabeth and Samantha Ostrander, when they were induced to make the statements found in the affidavit of Elizabeth Ostrander and the unverified letter of Samantha Ostrander. The affidavit of the mother and the letter of the sister of the accused • are completely explained away by their respective affidavits used in opposition to the motion of the accused. If we were called upon to balance those affidavits with the affidavit and letter submitted on the motion, we should be inclined to give credence to the statements found in the opposing affidavits, especially as we call to mind that a contrary conclusion would require us to believe what seems almost incredible, that a mother and sister could have deliberately and persistently committed the perjury imputed to them in the course of the trial of a son and brother where his life or death was involved. Charity to human nature leads in the direction of the conclusion we have indicated, and we might well hesitate before concluding, upon any of those affidavits before us, or upon affidavits like those, that such perjury had been committed.

We have also looked into the affidavits in respect to the alleged misconduct of the jury"submitted to us, and those in opposition thereto. First.' It is a well understood and settled rule that affidavits of jurors or the declarations of jurors cannot be received to impeach their verdict. (Thomas v. Chapman cmd another, 45 Barb., 98; Brownell v. McEwen, 5 Denio, 367; Green v. Bliss, 12 How., 428; Gale v. N. Y. C. & H. R. R. R. Co., 53 id., 385; Reese v. Stadler, 54 id., 492; The People v. Draper, 28 Hun, 1.

Second. The opposing affidavits are sufficient to' overthrow all evidence legitimately before us in respect to the misconduct of the jury. While there are some circumstances relating to the conduct of the jury which are to be regretted and disapproved, we are of the opinion that if the question was properly before us, according to well established precedent, we should not be following precedents if we interfered by setting aside the verdict. ( Wilson v. Abrahams, 1 Hill, 207.)

It is proper to observe that the indictment was found prior to the time the Code of Criminal Procedure took effect, and that its provisions do not apply to this case. (See Code of Criminal Pro., § 962.)

The views which we have already stated lead us to conclude:

First. That the motion for a new trial upon the ground of newly discovered evidence, as well as the motion to set aside the verdict of the jury upon the ground of alleged misconduct, should be denied.

Second. That the judgment and conviction should be affirmed.

Third. The proceedings should be remitted to the Oyer and Terminer of Oneida county, with instructions to proceed in the premises.

Motion denied, conviction and judgment affirmed, and proceedings remitted to the Oyer and Terminer of Oneida county, with direction to proceed.

Smith, P. J., and Haight, J., concurred.

Motion for new trial denied; conviction and judgment affirmed, and proceedings remitted to the Court of Oyer and Terminer of Oneida county; with directions to proceed thereon.


source: Caselaw Access Project

author: Smith, P. J.;

license: Public Domain

text:
    NORMAN B. SPRAGUE, Respondent, v. JAMES C. SWIFT, Appellant.

      Evidence — the payee of a note may testify as to personal 1/ransaetions had with a deceased maker of a joint and several Tiote, in an action against the other makes' — Code of Cml Procedure, sec. 829.
    Appeal from an order made at Special Term denying a motion for a new trial made on a case and exceptions, after a judgment in favor of the plaintiff had been entered on a verdict rendered at the Erie Circuit. •
    The action was upon a joint and several promissory note alleged to have been made by one Stilwell and the defendant. The defense was a denial of the execution of the note by defendant, and payment by Stilwell for whose accommodation the note was made. Stilwell died before the action was commenced.
    . The court at General Term said: “ The plaintiff, to establish the issues on his part, was permitted as a witness in his own behalf to testify to transactions and conversations between himself and Stilwell. The defendant objected at the trial, and he now contends, that the plaintiff was incompetent to testify to those matters, under section 829 of the Code, on the ground that the defendant is sought to be charged in the action as the ‘survivor’ of Stilwell. The objection was properly overruled. The defendant is not a ‘ survivor’ within the meaning of the section. As the note sued on was several as well as joint he was liable to a separate action as well before as after the death of Stilwell.”

      Osgoodby, Titus <& Moot, for the appellant.

      Lewis & Lice, for the respondent.
   Opinion by

Smith, P. J.;

Hardin, J., concurred; Haight, J., not sitting.

Order affirmed.


text:
    GEORGE H. GILBERT, Respondent, v. SHADRACK GROFF, Appellant.

      Estoppel — when one giving a receipt is estopped from, claiming that the amount stated therein was not paid, as against one acting upon the faith of it.

    Appeal from a judgment in favor of the plaintiff, entered upon the decision of the court upon a trial at the Onondaga Circuit without a jury.
    The plaintiff, an undertaker residing at Syracuse, buried a man named Freer who died at the residence of one Whitney. The burial was ordered by Whitney. The plaintiff presented a bill for his services to Whitney, made out against “ the estate of D. Freer.” Whitney -gave his note for the amount of the bill, at fifteen days, and thereupon the plaintiff delivered the bill to Whitney, receipted as follows: “Received payment, by C. IT. Whitney, May'16.” (Signed) “ Geo. H. Gilbei’t.” The note was not paid, but was renewed from time to time until the following January, when the plaintiff took it up at the bank where he had procured it to be discounted.
    The defendant, who resides at Toledo, Ohio, came to Syracuse soon after the transactions above stated and took out letters of administration on Freer’s estate. Whitney turned over to him the assets of the estate in his hands and at the same time presented the plaintiff’s receipted bill and said that he had paid it and asked the defendant to reimburse him, which he did. Whitney said nothing about having given his note. Subsequently the plaintiff-brought this action.
    The court at General Term said: “ It seems to be assumed by both parties that Whitney is irresponsible; and' that being the case a loss has occurred which must fall on one of two innocent parties; and as it was produced by the error of the plaintiff in giving an absolute receipt on which the defendant relied and acted, we think the loss should fall on the plaintiff. Indeed, the plaintiff .having asserted in the recgipt that he had been paid by Whitney, and the defendant having reimbursed Whitney, relying upon the truth of that assertion, we are of the opinion that the plaintiff is estopped, as against the defendant, from setting up that he has not been paid. It is true the plaintiff did not intend, when he gave the receipt, that the defendant or any other person should act upon it. Nevertheless, it was a voucher which was proper. to be presented to the administrator of the estate, whoever he might be, and upon which he might properly act. The bill was made out against the estate. Whitney was not the administrator, and it appears from the evidence that the plaintiff knew that fact when he gave the receipt. In short, the receipt was calculated to mislead the administrator, and it having done so in fact, the plaintiff is estopped. It is not necessary to an equitable estoppel that the party should design to mislead; it is enough if the act or declaration was calculated to and did in fact mislead another acting in good faith and with reasonable diligence. (Blair v. Wait, 69 N. Y., 113, 116; Continental Nat. Bank v. Nat. Bank of the Commonwealth, 50 id., 577; Davis v. Allen, 3 id., 170.)”

      Sedgwick, Ames da King, for the appellant.

      Hunt. Leavenworth da Weaver, for the respondent.
   Opinion by

Smith, P. J.;

Hardin and Haight, JJ., concurred.

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


text:
    HORACE KELSEY, Respondent, v. HUGH J. JEWETT, Receiver, etc., Appellant.

      jEvidence — the plaintiff must show that the defendants negligence caused, the injury.

    Appeal from a judgment in favor of the plaintiff, entered on a verdict rendered at the Livingston Circuit, and from an order denying a motion for a new trial made on a case and exception.
    This action was brought to recover damages for injuries to the plaintiff’s person, alleged to have been caused by the negligence of the defendant’s employes in charge of a train at a railroad crossing in the town of Caledonia. The plaintiff gave evidence at the trial tending to show that, when the train approached the crossing, the •bell was not rung or the whistle sounded for eighty rods preceding the crossing. The judge charged the jury as follows: “ If you find that the signal was not given, you have a right to infer that the omission was a negligent act of such a character as will throw the burden of proof, so far as that question is concerned, upon the defendant to show to your satisfaction-that the omission to ring the bell was, under the circumstances, an act of prudence, and that it did not produce the injuries complained of.”
    The court at General Term said: “ The case of Held v. The New York Central and Hudson River Railroad Company, decided by us in April, 1881, an abstract of which is published in 12 New York Weekly Digest (p. 163), is an authority for the position that the charge was erroneous. The burden was upon the plaintiff to show pot only an act of negligence on the part of the defendant, but also that such negligence produced the injury.” Lamb v.. The Camden and Amboy R. R. Co., 46 N. Y., 271; Heinemamn v. Hurd, 62 id., 448.)

      Sprague, Millburn do Sprague, for the appellant.

      J. B. Adams, for the respondent.
   Opinion by

Smith, P. J.;

Hardin and Haight, JJ.,- concurred.

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


author: Hardin, J.;

text:
    J. E. JEFFERSON, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Excise lam — indictment for a violation of it — when the offense is sufficiently charged in the indictment.

    Writ of Error to the Court of Session of Wyoming county.
    The plaintiff in error was convicted of violating the excise law, and sentenced to pay a fine of fifty dollars, to stand committed until it was paid, not to exceed however one day for each dollar of said fine.
    The plaintiff in error was indicted and convicted tor selling strong and spirituous liquors and wines by retail to be drank on the premises, in quantities less than five gallons, without having a license therefor as an inn, tavern or hotel keeper.

      Evidence was given upon the trial “ tending to show that on or about the 3d of May, 1881, at the town of Attica, in the county of Wyoming, the defendant sold strong and intoxicating liquors, in quantities less than five gallons, to be drank on his premises, in Attica aforesaid, and that the same were so drank on his premises.”
    It was admitted that he had a license to sell strong and spirituous liquors in quantities less than five gallons, not to be drank upon the premises, known as a storekeeper’s license.
    A motion was then made to quash the indictment, because it did not state facts constituting a cr.ime, and because it did not state the exception provided for by the law of 1869, authorizing the sale of ale and beer to be drank upon the premises of a person licensed under that statute.
    The court at General Term said: “ Undoubtedly the act of 1869 (ch. 856), is to be read with and construed with the excise law of 1857. (Ch. 628.) (People v. Smith, 69 N. Y., 176; O'Rourke v. The People, 3 Hun. 225.) But the omission to refer to the act of 1869, in the fourth count of the indictment, was not an error which should lead us to hold the indictment invalid.
    If the plaintiff in error could bring himself within the provisions of the act of 1869, he should do so by proof. (Fleming v. The People, 27 N. Y., 329.)
    Sufficient evidence was given, we must assume, to warrant the verdict of the jury, and as the case contains no evidence of any valid defense, we should sustain the verdict.

      E. M. Bartlett, for the plaintiff in error.

      I Samuel Johnson, district-attorney, for the people.
   Opinion by

Hardin, J.;

Smith, P. J., and Haight, J., concurred.

Conviction and judgment affirmed, and case remitted to the Court of Sessions of Wyoming county, with directions to proceed thereon.


text:
    Martin S. Cuykendall, as Receiver, etc., Respondent, v. Ormond S. Gillim, Administrator, etc., Appelant.

   Judgment reversed and new trial ordered, costs to abide event. Dwight, J., not sitting.


text:
    Chase v. Edwards.
   Order appealed from affirmed, with ten dollars costs and disbursements. Motion to dismiss the appeal denied, without costs, on the opinion of Haight, J., in the case of Bennett v. Edwards.


text:
    Albert V. Tillman, Appellant, v. The Buffalo and Idaho Gold and Silver Mining Company, Respondent.

   Motion denied, without costs, and cause ordered over the term.


text:
    Cornelia W. Adair, and others, Appellants, v. Martin Brimmer and others, Respondents.

   Decree of surrogate reversed and case remitted to the surrogate of Livingston county to restate the account as indicated in the opinion, neither party to have costs of this appeal as against the other or out of tlie estate.


text:
    Edward N. Cook and others, Appellants, v. The City of Buffalo and another, Respondents.

   Order of Special Term affirmed, with ten dollars costs and disbursements. Opinion by Hardin, J.; Haight, L, not sitting. .


text:
    Julian T. Williams and others, Plaintiffs in Error, v. The People of the State of New York, Defendants in Error.

   Conviction and judgment reversed and case remitted to the Court of Sessions of Chautauqua county for a new trial. Opinion by Smith, P. J.


text:
    Mary Schweitzer, as Administratrix, etc., Respondent, v. Ernst Sander and Conrad Weiss, Appellants.

   Judgment affirmed. Opinion by Hardin, J.


text:
    Benjamin Porter, Executor, etc., Respondent, v. Reuben E Perry, Appellant.

   Judgment affirmed, with costs. Opinion by Hardin, J.


text:
    Brainard White, Respondent, v. Lucy White, Appellant.

   Judgment affirmed. Opinion by Hardin, J.


text:
    Jane E. Spendlove, Appellant, v. Alexander L. Chero and another, as Executors, etc., Respondents.
   Order appealed from affirmed ; costs of this appeal to abide the final direction in the proceedings as to costs.


text:
    The People of the State of New York ex rel. Daniel Gere and others, Appellants, v. John R. Whitlock and others, Respondents.

   Judgment affirmed, with costs, on opinion of Churchill, J., at circuit; Smith, P. J., not sitting.


text:
    Mary A. Harlinger, as Administratrix, etc., Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

   Order affirmed. Opinion by Smith, P. J.


text:
    The Seneca Nation of Indians, Respondents, v. Henry Foltz, Appellant.

   Judgment affirmed. Opinion by Smith, P. J.; Haight, J., not sitting.


text:
    Robert A. Crittenden and Elijah T. Woodcock, Respondents, v. Amos B. Atwood, Appellant.

   Judgment affirmed. ' Opinion by Smith, P. J.


text:
    John Raymond, Appellant, v. James K. Burlingame, Sheriff, etc., Respondent.

   Jadgment affirmed. Opinion by Hardin, J.


text:
    Henry Foltz, Appellant, v. Robert Patterson and Otis Patterson, Respondents.

   Judgment reversed and new trial ordered, costs to abide event. Opinion by Smith, P. J.; Haight, J., not sitting.


text:
    James W. Phelps, Respondent, v. William Beardsley, Appellant.

   Judgment affirmed, with costs. Opinion by Hardin, J.; Haight, J., not sitting.


text:
    Alfred A. Howlett, Respondent, v. The New York, West Shore and Buffalo Railway Company and others, Appellants.

   Order affirmed upon opinion delivered by Mr. Justice Merwin at Special Term, with ten dollars costs and disbursements.


text:
    The City of Rochester, Respondent, v. Samuel Pierce, Appellant.
   Judgment affirmed. Opinion by Hardin, J.; Smith, P. J., not sitting.


text:
    Charles Nelson, Respondent, v. The Village of Canisteo, Appellant.

   Judgment affirmed. Opinion by Hardin, J.


text:
    Albert Hemstreet, Respondent, v. Harvey Little, Appellant.

   Judgment of'County Court affirmed. Opinion by Hardtn, J.


text:
    Henry Austin, Appellant, v. James Gillespie and Charles McVey, Respondents.
   Judgment reversed and new trial ordered, costs to abide event. Opinion by Smith, P. J.


text:
    Arvilla A. Van Rensselaer, Respondent, v. Corinth Woodworth and George Woodworth, Appellants.

   Judgment affirmed. Opinion by Hardin, J.


text:
    Sharwood Dunn, Respondent, v. Charles E. Brown, Appellant.

   Order affirmed, with ten dollars costs and disbursements.


text:
    Edward Hoopes, Respondent, v. Samuel C. Cummings, Appellant.

   Order affirmed, with ten dollars costs and disbursements.


text:
    Sarah M. Crocker, as Executrix, etc., Respondent, v. Emmerson S. Eddy, Appellant.

   Judgment affirmed.


text:
    Alice T. Cook, as Executrix, etc., Respondent, v. Joseph G. Randall, Appellant, Impleaded, etc.

   Judgment of County Court affirmed. (See Correl v. Morse, decided in this department in June, 1879.)


text:
    Frank E. Allen and others, Respondents, v. Same, Appellant.

   The like judgment.


text:
    George W. Bradner, Respondent, v. William O. Gile, Appellant.

   Judgment affirmed. Opinion by Hardin, J.


text:
    In the Matter of William H. Silvernail, an Attorney.

   Motion to dismiss appeal granted, with ten dollars costs, unless Silver-nail serve appeal papers and pay said costs by second Monday of present term, in which case motion denied.


text:
    Mary A. Warner, Respondent, v. Mercy Henderson, Appellant.

   Motion denied.


text:
    Harvey Litchfield, as Commissioner, etc., Appellant, v. Thomas Fitzgerald, Respondent.

   Motion for reargument denied.


text:
    Charles E. Beard, Respondent, v. Daniel F. Cridler, Appellant.

   Motion denied with leave to either party to produce a certified copy of the notice of appeal to the County Court, on the argument of the appeal in this court, without costs to either party.


text:
    Caroline Parkinson, Appellant, v. Thomas Parkinson, Respondent.

   Motion to dismiss appeal granted, without costs to either party. Held, that the plaintiff having accepted the money which the order appealed from directed to be paid cannot maintain the appeal.


text:
    Marvin W. Phillips, Respondent, v. Stiles B. Ellsworth, Appellant.
   Motion for leave to appeal to the Court of Appeals denied.


text:
    J. Dupha Reeves, as Trustee, etc., Appellant, v. Edwin K. Burnham and others, Respondents.

   Ordered, that the memorandum of decision heretofore made herein by the General Term, and the order and judgment entered thereon, be so modified as that they shall direct a reversal of the judgment appealed from and a new trial before another referee, with, costs to abide final award of costs in the action.


text:
    Same v. Same.
   Two appeals. Each appeal dismissed, without costs to either party.


text:
    William Somerville, Appellant, v. Charles H. Metcalf and others, Respondents.

   Motion denied.


text:
    Edward B. Collins, Respondent, v. Henry Rockwood, Appellant.
   Motion denied. (Roe v. Hansen, 5 Lans., 304.)


text:
    James Derrick, Appellant, v. William B. Hubbard, Respondent, Impleaded, etc.

   Beargument ordered.


text:
    Nathan Cobb and others, Respondents, v. Dwight B. Cowles, Appellant, Impleaded, etc.
   Motion denied.


text:
    Elizabeth S. Williams v. Orrin F. Barton.
   Motion denied.


text:
    William Maher, Respondent, v. S. Hatch Gould and another, Appellants.

   Motion denied.


text:
    William Kanna, Respondent, v. Michael Kester, Appellant.
   Motion denied.


text:
    The People of the State of New York, Respondents, v. James D. Buckley, Appellant.

   Motion for leave to appeal to the Court of Appeals granted.


text:
    The First National Bank of Hornellsville, Appellant, v. John S. Combs, Respondent.

   Order affirmed, with ten dollars costs and disbursements. Macomber, J., not participating in decision.


text:
    Hubbard Foster and others, Respondents, v. The City of Buffalo, Appellant.

   Order affirmed, with ten dollars costs and disbursements, on opinion of Mr. Justice Haight at Special Term.


author: Davis, P. J. :

text:
    WASHINGTON S. WHEELWRIGHT and BENJAMIN F. WHEELWRIGHT, Appellants, v. JOHN HARSEN RHOADES and Others, Executors, etc., and Others, Respondents.
    Executors— we liable for losses incurred in making investments to escape taxation — an estate cannot claim the profits of such an investment without accepting the incidental expenses thereof — Commissions—executors cannot lake them until they have been ascertained by the court —power of the court to withhold them entirely.

    It is no part of an executor’s duty to resort to devices to evade the lawful assessment and taxation of the estate in his hands; an^. if in so doing he incurs liabilities or borrows money to buy securities exempt from taxation, and such action results .in a loss to the funds in his hands, he will be compelled to make good such loss, however clearly it may be shown that he intended to benefit the estate.
    An executor, in order to evade the imposition of a tax upon the estate, borrowed moneys, upon its credit and bought securities exempt from assessment. The transaction resulted in a small profit for the estate, besides enabling it to escape taxation for a considerable amount. Upon the accounting by the executors it was sought to charge them personally with the interest paid by them upon the money so borrowed.

      Held, that this could not be done; that the estate could not take the profits of the transaction without adopting the incidents that attended its realization.

      Held, further, that the interest so paid should be charged upon the income and - not upon the principal of the estate.
    A few months after the executors entered upon the discharge of their duties they withdrew the sum of $15,000 from the estate and divided it between themselves as part of their commissions.

      Held, that upon their accounting they should have been charged with the amount paid to themselves, respectively, and with interest thereon from the time the money was withdrawn from the estate, and that the surrogate should then have awarded to them such commissions as they were entitled to receive.
    Executors have neither the power nor right to pay-themselves commissions until such commissions have been ascertained in the manner provided bythe statute authorizing and fixing them.
    It is in the power of a surrogate or court to deny all commissions, where there has been misconduct on the part of the executors resulting in losses to the estate greater than the lawful compensation. (Per Davis, P. J.)
    Appeal from a decree of the surrogate of New York, overruling exceptions to an auditor’s report, on the settlement of the accounts of the respondents as executors, and confirming the same.

      A. A. Redfield, for the appellants.

      TIomer A: Nelson, for the respondents.
   Davis, P. J. :

• Upon the several facts found by the auditor, which, in th® absence of the evidence taken by him, we must assume to be fully justified by proofs, we are of opinion that the surrogate properly disposed, under the circumstances of this case, of all the exceptions, except the one hereinafter specially considered. As a general rule we think it should not be held to be either lawful or proper for executors or administrators to borrow money on the credit of an estate, for the sole purpose of - evading taxation by purchasing securities exempt from assessment, and thereby temporarily tiding over the period within which assessments must be made, with intent then to dispose of the same to repay the borrowed money. To encourage such practices would be against public policy; and where they have been pursued, if losses shall have been sustained, the representatives and not the estate would properly be charged with them.

In other words, it is no part of an executor’s duty to resort to devices to evade the lawful assessment and taxation of the estate in his hands, and if in doing so he incurs liabilities, or buys securities which bring loss upon the funds in his hands, however clear his motives to benefit the estate may be, he will doubtless be adjudged to make good the loss.

In this case no loss ensued to the estate or the parties interested; and what was done resulted in a profit and was done with the consent of all the parties interested but one (who is now an appellant). In closing up a transaction which produced a small net profit, besides escaping taxation for a considerable amount, the executors paid interest on money borrowed to purchase the government bonds used by them to evade assessment, and it is claimed by the appellants that they should be charged with the interest thus paid. .We would agree to this view if the interest paid or part of it had been a loss ; and would require the executors to make good the loss. But the estate cannot take the profit of- the. transaction, without adopting the incidents that attended its realization. The result reached by the surrogate was an equitable one under all the circumstances of the case, and we are not inclined to disturb it.

It is strenuously insisted, however, that the interest paid should have been charged to the capital of the estate, and not to the income fund out of which the appellants were entitled to annuities. We think the disposition made by the auditor is correct. The scheme to avoid taxation was for the benefit of that fund, against which taxes are chargeable before its net amount can be correctly ascertained for distribution. It was paid to save that fund from a much larger expenditure, and seems to have accomplished that object. The several other exceptions, except the one yet to be specially. mentioned, are considered at length in the opinion of the surrogate, and we think correctly disposed of by him.

The objection that the executors could.not lawfully take their commissions as they were taken by them, ought not to have been overruled.

It appears that a few months after the executors entered upon their duties, the sum of $15,000 was withdrawn from the funds of the estate and divided between the three executors, as part of their commissions. They were not entitled to compensate themselves in that manner. No commissions were then earned, and for aught. that appeared at that time, none might have been earned.

The statute fixes the rate of compensation to executors and administrators and provides the mode in which it shall be ascertained and paid; and until, that statutory requirement is complied with, the executors have neither, power nor right to pay themselves .at their own discretion.

It is in the power of the surrogate or court to deny all commissions where there has been misconduct on the part of executors, resulting in losses to the estate greater than the lawful compensation. And executors may be personally charged with losses and injuries prejudicial to their trust, and denied commissions altogether, in the sound discretion of the court, in cases deserving great severity •of censure.

The course of the executors in this case, although taken in good faith and under the advice of counsel, ought not to have been sanctioned, because of its danger as a precedent.

The account of the executors should have been charged with the . amount paid to themselves respectively, and with interest on that amount from the time the money was withdrawn, and the surrogate should have awarded commissions by his decree out of the •estate remaining ; or which in this case would practically produce the same result, the account should have been charged with interest from the day of its withdrawal upon the sum so improperly applied by the executor’s.

In that regard, the decree of the surrogate must be modified.

After such modification (which it is supposed the learned counsel for the respective parties will have no difficulty in adjusting) the decree is to be affirmed, without costs of the appeal.

Otherwise, the decree must be reversed fro tanto, and the question of the amount to be charged against the executors remanded to the surrogate for ascertainment.

Brady, J., concurred.

Present — Davis, P. J., Brady and Ingalls, JJ.

Decree modified as directed in opinion, without costs.


author: Davis, P. J.:

text:
    PETER J. VANDERBILT, Appellant, v. JOHN SCHREYER, as Executor, etc., and Others, Respondents.

      Injunction — undertaking given upon procuring it — what is a final decision that the plaintiff is not entitled to it.

    An execution having been returned unsatisfied upon a judgment recovered against the defendant by the plaintiff the latter, during the pendency of an appeal taken by the defendant from such judgment, brought this action to set aside certain conveyances alleged to have been fraudulently made by the defendant and procured a temporary injunction restraining him from collecting the rents of the premises so conveyed. Subsequently the judgment appealed from was reversed and a new trial ordered. Thereafter a judgment previously entered in this action was vacated; and subsequently the plaintiff, pursuant to an order allowing him so to do, discontinued the action, without costs. The.injunction granted in this action was dissolved by the court prior to the entry of the judgment herein.
    Upon an application to recover the damages occasioned by the injunction, upon an undertaking given by the defendant providing for the payment' Of all damages the plaintiff might sustain by reason of the injunction, if the court should finally decide that the plaintiff was not entitled thereto:

      Meld, that the decision of the court refusing to continue the injunction and dissolving it was, under the peculiar circumstances of the case, a final decision that the plaintiff was not entitled to it within the meaning of the undertaking.
    Appeal from an order of a Special Term confirming tbe report of a referee awarding damages to the defendants, upon an undertaking given by the plaintiff upon procuring a temporary injunction.

      M. L. Hcvmey, for the appellant.

      J. L. Lmdsay, for the respondents.
   Davis, P. J.:

An injunction order based upon «affidavit was obtained in this action at its commencement, accompanied with an order to show cause why it should not be continued, which restrained the defendant from collecting the rents and profits of divers residences situated in the city of New York. At the time of obtaining the injunction an undertaking was executed on behalf of the plaintiff by which the parties thereto undertook in the sum of $4,000, that the plaintiff would “pay to the defendant so enjoined such damages, not exceeding the above mentioned sum, as he may sustain by reason of the injunction if the court finally decides that the plaintiff was not entitled thereto, such damages to be ascertained .and determined by the court, or by a referee appointed by the court, or by a writ of inquiry or otherwise as the court shall direct.”

On the hearing of the order to show cause why the injunction should not be continued, at the Special Term, the defendant appeared by counsel, presented affidavits, in opposition, and contested the right of the plaintiff to have and continue the injunction. The Special Term denied the motion to continue, and dissolved the injunction. This motion was made and decided prior to the trial of the action.

The action was in the nature of a creditor’s bill to set aside alleged fraudulent conveyances of the premises affected by the injunction. It was based upon a judgment recovered by plaintiff and execution returned nulla bona. An appeal from the judgment was pending when this suit was commenced. Upon issues joined in this action the plaintiff upon trial at Special Term recovered judgment, but soon afterward the judgment ofi which the action was brought, was reversed by the General Term, and a new trial was ordered. Subsequently the judgment in this action was opened, and the defendant was allowed to plead the reversal of the judgment puis darrein continuance. The plaintiff thereupon entered an order pursuant to leave duly given, vacating his judgment and discontinuing his action without costs.

The principal question presented by this appeal is whether there has been such a final decision by the court that the plaintiff was not entitled to the injunction, as satisfies the condition of the undertaking.

The case is a peculiar one; but we think the decision of the Special Term denying the motion'' to continue the injunction and dissolving the same, became final upon the question whether the plaintiff was entitled to the injunction when the plaintiff discontinued his action, notwithstanding the peculiar circumstances under which that was done. He was allowed to discontinue without costs, but that related merely to the costs of the action and not to the damages sustained by defendant by reason of the injunction and his efforts to get rid of the same.

' The judgment recovered by the plaintiff can have no effect upon this question because it was wholly vacated and set aside. The issues in the action stood after the judgment was vacated, wholly untried, and the judgment cannot be considered as determining the right of the plaintiff to have the injunction.

As soon, therefore, as the action was finally terminated by the order of dismissal or discontinuance, the order of the Special Term dissolving the injunction became operative as a final decision of the court that the plaintiff was not entitled thereto.

These views seem to be sustained on principle and by the author-ties. (Pacific Mail Steamship v. Lueling, 7 Abb. [N. S.], 37; Palmer v. Foley, 2 Abb. N. C., 191; Carpenter v. Wright, 4 Bosw., 655.) And they are not in conflict with the rule laid down in Lawion v. Creen (64 N. Y., 326).

It is claimed that the allowance of $250 for services of attorney and counsel on the motion at Special Term was excessive. It certainly looks liks a large amount for that particular service; but the evidence before the referee showed that it was charged and paid, and that the services in fact rendered were reasonably worth that amount. We do not feel at liberty to interfere with the allowance on the score of excessiveness. The actual expenses of the reference were properly included. Their amount is not objected to.

We think the order should be affirmed, but under the circumstances without costs of the appeal.

Brady, J.; concurred.

Present — "Davis, P. J.; Brady and Ingalls, JJ.

Order affirmed.


text:
    JOHN D. FISH and JOHN M. LIPPINCOTT, as Administrators, etc., of HANNAH ANN LIPPINCOTT, Deceased, Plaintiffs, v. HENRY A. COSTER, Defendant.

      Will — power to sell real estate — when it may he exercised by an administrator with, the will annexed- — as to Ms power to execute a trust confided to the executor — Submission of controversy — when no additional allowances can be made.

    The plaintiffs’ testatrix gave, devised and bequeathed all her estate, both real and personal, to her executors therein named, and to the survivors of them, as joint tenants and not as tenants in common, in trust to sell and convert into money the real estate, and to divide the proceeds thereof and the personal estate into as many equal shares as she should leave children surviving her, and the issue of deceased children, such issue to represent their deceased parent. She appointed F. Slagg and O. A. Lippincott, and the survivor of them, executors, and clothed them with the power to sell her real estate in the following words:
    “And I do authorize and require them, as soon as may be after my death, to' sell at private or at public sale, as to them may seem most discreet, all and every part of my real estate, to convey the same to the purchaser or purchasers; and it is my intention that this pó wer, together with the office of executors, shall survive and be-continued to the survivor of them, in case one of them shall die either in my lifetime or after my death. If my real estate shall, from any cause, not happen to be sold by them, or the survivor of them, then I give the same power of sale as is above given to them to such person or persons as shall be appointed my administrator or administrators with the will.”
    By the will she created her executors, eo nomine, trustees of the shares of three of her daughters, but by a codicil gave the shares of two of the three daughters to such daughters absolutely. The executors having renounced their appointment, and never having exercised any of the powers created by the will, the plaintiffs were duly appointed administrators with the will annexed.

      Held, that they had power to sell and convey the real estate of their testatrix.

      Qucere, as to whether they could discharge the duties devolved by the will upon the executors, as trustees for the daughter of the testatrix.
    Where a submission of a controversy upon agreed facts expressly provides that the judgment, in favor of whatever party it shall be, shall be given with costs and disbursements, no additional allowance can be made.
    Case submitted under sections 1279, 1280 and 1281 of the Code of Civil Procedure.

      E. Revoe and O. W. West, for the plaintiffs.

      Coles Morris and Michael R. Cardozo, for the defendant.
   Davis, P. J.:

Tlie question in controversy submitted in this case arises under the will and codicil of Hannah A. Lippincott. The testatrix, by her will, gave, devised and bequeathed all her estate, both real and personal, to her executors therein named, and to the survivors of them as joint tenants, and not as tenants in common, in trust to sell and convert into money the real estate, and to divide the personal estate and the proceeds of the real estate into as many equal shares as she should leave children surviving her, and the issue of deceased children, such issue to represent their deceased parent. She nominated Ferdinand Stagg and Charles A. Lippincott, and the survivor of them, executors of her will, and clothed them with power to sell her real estate in the following words:

“ And I do authorize and require them, as soon as may be after my death, to sell, at private or at public sale, as to them may seem most discreet, all and every part of my real estate, and to convey the same to the purchaser or purchasers; and it is my intention that this power, together with the office of executor, shall survive and be continued to the survivor of them, in. case one of them shall die, either in my lifetime or after my death. If my real estate shall, from any cause, not happen to be sold by them, or the survivor of them, then I give the same power of sale as is above given to them to such person or persons as shall be appointed my administrator or administrators with the will.”

By the will, she created her executors eo nomine and the survivor of them, trustees of the shares of her daughters, Amelia-Williams, Clemens S. Leonard and Harriet S. Stagg, or their issue, upon the trusts therein declared. By a codicil subsequently executed, she gave to two of her daughters their shares absolutely, and as modified, left in full force the trust created by the will in favor of her daughter Clemens S. Leonard. The executors named in the will, by an instrument in writing, duly renounced their appointment as such executors, without having qualified or having executed any of the powers created by the will. Afterwards, upon the petition of one of the sons of the testatrix, the plaintiffs in this submission, John. D. /Fish and John M. Lippincott, were appointed by the surrogate administrators with the will annexed. They qualified and entered upon their duties on the 24th day of March, 1881. The plaintiffs, as such administrators, sold at public sale to the defendant certain lands and premises which were part of the estate of the testatrix, and said purchaser pgid thereon ten per cent of the purchase-price, and entered into the agreement of purchase and sale set out in the submission. -A deed was subsequently executed and tendered by the administrators and payment of the balance of the purchase-price demanded, and the defendant refused to pay the same or to receive the deed, alleging a want of power in the administrators to convey such title' as he was entitled to under the contract.

The question submitted to the court is whether the plaintiffs are entitled to a specific performance by the defendant of the contract of sale made by him and them. No question is made but that a valid power of sale of the real estate of the testatrix was properly granted by her will to the executors therein named, nor that the devise in trust of the real estate for the purpose of executing the power was conferred as a power in trust. (1 R. S. [Edm. ed.], 681, 682 et seq., %% 72, 74, 77, 94, 106.)

The language of the will is very clear and emphatic. The testatrix not only authorizes, but she requires the sale of her real estate, thereby both creating a power and imposing a duty for the benefit of the beneficiaries named in the will. She devises the power in trust not only to her executors and the successor of them, bxrt by a provision especially framed to meet the contingency that has happened, she devises the same power -in trust to her administrator or administrators with the will annexed. "When, therefore, the executors named in the will renounced the office by a complete and perfect instrument of renunciation, and the plaintiffs were thereupon duly appointed by the surrogate administrators with the will annexed, there seems to be no room for doubt that they took, by virtue of the will, the power of sale and the duty of executing the power to the same extent as though they had been originally named in the will as executors. And this we think is true, whatever question there might be as to their power to execute the trust created by the will in favor of Clemens S. Leonard.

It is not necessary to pass upon the question whether, that trust which affects only a portion of the proceeds of the sale, after the power of sale shall have been duly executed, -resides in the persons named originally as executors or in tbe plaintiffs, who have become administrators with the will annexed. The scheme of the will, however, seems to indicate a- clear intention that that trust-shall follow and vest in the official representatives of the testatrix, whether their relation to the estate be that of executors or administrators with the will annexed. It is very clear, however, both by the provisions of the will and' by the Revised Statutes, that the plaintiffs, upon their appointment, took the same powers as the renouncing executors had under the will. They would not take trusts imposed in personal confidence ill the individuals named as executors, but every power or trust annexed to the office of executor would devolve upon them by force of the statutes, as well as by the provisions of the will. (2 R. S., 74, § 22; Bain v. Matteson, 54 N. Y., 663.) The power of sale was given by the will to the executors as such, without using their names in immediate connection with the devise, and it was intended that the same power should devolve upon the survivor alone in case of the death of either, or upon the administrator or'administrators with the will annexed, in case of failure from any cause on the part of the executors to carry the power into effect. “ It is my intention,” she .says, “ that this power, together with the office of executor, shall survive and be continued; ” and again, I give the same power of sale, as above given to them, to such person or persons as shall be appointed my administrator or administrators with the will.” Whatever, therefore, the executors named in the will could do in the execution of the power, the plaintiffs are equally empowered to do as administrators.

If the trust as to the share of Clemens S. Leonard was a strictly personal one, given in personal confidence to the executors named, they did not resign that trust when they renounced as executors. They may, therefore, accept and exercise their trust, because it is separable and distinct from the merely executory powers given by the will. The power of sale is, however, executory, and is now clearly vested in the administrators. They may proceed to execute the power by making the sale and receiving the proceeds of the - land, and upon the completion of these acts, the question by whom the trust in favor of Mrs. Leonard shall be executed may become an active and important one, but until then there is no sound reason why it should be permitted to hamper or embarrass the execution of the power of sale. If necessary, for the purpose of upholding and carrying into complete execution the intention of the testatrix, as expressed by her will, it would be proper to hold that the will contained a complete equitable conversion of her real estate into personalty, to take effect on the death of the testatrix, because the power given is imperative and no time is fixed for making the sale. In that view, the real estate would be regarded as personal property for the purpose of carrying out the intention of the will, and the administrators with the will annexed would take title of the proceeds as personal property by a sale which should convert the real estate into actual money.

We are, therefore, of opinion that the sale made to the defendant was a valid one, and that the performance of the contract by the execution and delivery of the deed required, by it will convey to him a good title, and that the plaintiffs are entitled to judgment awarding a specific performance of the contract of sale, with costs of the action.

We do not consider- the question whether this court has power to grant an additional allowance, because, by the express terms of the submission, it is provided that the judgment in favor of whatever party it shall be, shall be given with costs and disbursements, and those words we think were used with reference to the proper taxable costs in such cases.

Judgment ordered accordingly.

Brady, J., concurred.

Present — Davis, P. J., Brady and Ingalls, J J,

Judgment ordered for plaintiffs, with costs.


text:
    CHARLES H. GEORGE and AMOS C. BARSTOW, Appellants, v. RICHARD S. GRANT and Others, Respondents.

      Limited partnership — preference given by am, insolvent special pa/rtnm' to his creditor's— when it is not void under subdivisions 20 and%\ of title 1, chapter 4, part 2, of the Revised Statutes.

    A special partner, being himself insolvent, and knowing that the limited partnership was insolvent, borrowed money by mortgaging real estate belonging to him individually, and used the proceeds in paying off certain of his individual debts.
    He borrowed the money with the intent of preferring his individual creditors, and the mortgagee had knowledge of that fact and of the insolvency of the mortgagor and of the firm.

      Held, that as the mortgage was not given to the creditors of the special partner, but to one who actually advanced money thereon, it was not avoided by section 21 of title 1 chapter 4 part 2 of the Kevised Statutes, rendering void every security given by a general or special partner, when he or the partnership is insolvent, or in contemplation thereof, with the intent to give any creditor of his own a preference over the creditors of the partnership.
    The fact that a portion of the money so advanced oa the security of the mortgage was paid in extinguishment of a debt due by the mortgagor to a firm of which the mortgagee was a member did not invalidate the mortgage.
    AppEAL-from a judgment, entered upon the trial of this action by the court without a jury, dismissing the complaint herein, with costs.

      B. F. Blair, for the appellants. '

      H&rvry De Forrest -Weeks, for respondent Grant.

      Fred. P. Forster, for the respondents Palmer & Forster.

      Geo. PL. Forster, in person.
   Davis, P. J. :

This action is based ’upon several judgments of this court, recovered by the plaintiffs against Richard Yose and Ourron Dins-more as general partners and Charles Phelps Palmer as special partner of a limited partnership, doing business under the firm name of Yose, Dinsmore & Co., and against said Charles Phelps Palmer, as indorser of the several notes upon which the actions were brought. There were no allegations in the complaints on the several notes that Palmer was liable as a general partner, by reason of any acts or omissions oil his part; and the judgment duly determined his liability as such special partner and as indorser.

The object of this action is to set aside as void against the creditors of said firm, a mortgage executed' by Palmer to the defendant Richard S. Grant of certain real estate which was his private and individual property, to secure alleged advances made to him by Grant to enable Palmer to pay certain of his individual debts, one of which was a debt owing to a firm of Avhich Grant was a member. It is alleged in substance that Palmer executed the mortgage, being himself insolvent, and knowing that the limited partnership of. which he was a member was insolvent, and with intent to give preferences to the individual indebtednesses paid by him out of the moneys advanced by Grant on said mortgage. The mortgage was for $70,000, of which some $66,000 were advanced by Grant, in money, and the excess, or a portion of it, was for an existing debt owing by Palmer to Grant.

The mortgage had been foreclosed by suit, in which • judgment had been recovered for the actual advances only, and the property mortgaged had been sold under the decree of foreclosure and bid in at the judgment sale by the defendant George H. Forster, on behalf of the defendant Grant. At the commencement of the foreclosure suit a lis pendens was duly filed, pursuant to the requirement of the Oode- (which fact is deemed of some importance by the respondent’s counsel). The individual creditors of Palmer, to whom the money advanced by Grant was paid, are not made parties to this suit, so that the action attacks only the validity of the mortgage and seeks to enforce ’ the several judgments against the property covered by it.

The plaintiffs rely upon the following provisions of the Revised Statutes in relation to limited partnership^, which are supposed to be applicable to the transaction in this case. “ Section 20. Every sale, assignment or transfer of any of the property or effects of such partnership made- by such partnership, when insolvent or in contemplation of insolvency, or after,, or in contemplation of the insolvency of any partner with the intent of giving a preference to any creditor of such partnership or insolvent partner, over other creditors of such partnership, and every judgment confessed, lien created or security given by such .partnership under the like-circumstances, and with the like intent shall be void as against the creditors of such partnership. Section 21. Every such sale, assignment or transfer of any of the property or effects of a general or special partner, made by such general or special partner, when insolvent or in contemplation of insolvency, or after or in contemplation of the insolvency of the partnership, with the intent, of giving to any creditor of his own, or of the partnership a preference over creditors of the partnership, and every judgment confessed, lien created or security given by any such partner under the like circumstances, and with the like intent, shr.il be void as-against the creditors of the partnership. (Secs. 20 and 21, tit. 1, chap. 4,part 2 of Revised Statutes; 1 R. S., 766, 767, §§ 20, 21.)

The question lying at the threshold of this case is, whether the transaction between Palmer and Grant was one within the inhibitory provisions of the statute. It must appear to be so, or it is not invalid, because at common law a member of a copartnership, whether special or general, is not prohibited from using or applying his private or individual property to the payment of his private debts, even if the copartnership as such be insolvent.

“ In Hewitt v. Northrup (75 N. Y., 506) it was held that the appropriation by a member of an insolvent firm of his individual property to the payment in full or pro rata of his individual debts, if honestly and fairly made, would be upheld under the bankrupt law, as it is such a disposition as the law authorizes and directs.”

And it is said in that case, in substance, that the equitable rule for the administration of the property of the persons who are members of an insolvent firm, and also owe private debts, is primarily to marshal the firm property for the firm debts, and the private property for the private debts. And Earl, J., in support of this principle cites Wilder v. Keeler (3 Paige, 167); Payne v. Matthews (6 id., 19); Meech v. Allen (17 N. Y., 300).

The plaintiff in this case must therefore stand upon some exceptional rale created by the statute in relation to limited partnerships. If that statute creates a rule that prevents, with absolute rigor, the special partner of a limited partnership, which becomes or is known to be about to become insolvent, from applying his individual property to pay private debts, which he actually owes in good faith, intending that they shall be paid preferably to debts owing by the limited partnership, and for which his contribution to the firm capital is alone liable, then it has imposed a hardship upon him and his creditors, which requires from the courts a strict construction to mollify its unjust severity. It must be -restricted to cases clearly within its reasonable scope, otherwise special partners who have paid in their share of the capital, and have done no act to extend their personal liability beyond that amount, may suddenly find themselves unable to pay a private debt without being charged with giving a fraudulent preference. The legislature had no intention to prevent special partners from applying their private property to pay their private debts, whenever equity and good faith permits or demands it.

But, in the case, before us, it appears that the mortgage wag not given by Palmer to Grant to prefer any indebtedness. It was made to secure actual advances, or in other words, loans made and to be made upon its credit as a security. The statute does not- extend to such a case, nor does the fact that the money advanced or loaned was intended to be used to pay creditors of the borrower, and thus, in practical effect, give preference in payment to his private debts, operate under the-statute to vitiate the security given upon effecting the loan; for the instrument is not made to give preference to any existing debt. If the special partner had borrowed of a bank $10,000 on his note with collaterals, the fact that he intended to and di'd pay his private creditors with the money would not vitiate his note nor forfeit the right of the bank to hold his collaterals. The transaction would not- be within the spirit or letter of the statute. If a creditor sought to pursue the money paid to a preferred creditor and in his hands, the question raised under the statute would be presented for consideration. How it would be determined need not be conjectured, for the case is not before us. There is no dispute in the evidence but that Grant actually advanced the money for which his mortgage has been enforced, and none as to his knowledge that Palmer intended to and did use it to pay certain of his private creditors. That payment operated' as a preferential one. If Palmer knew that he was insolvent, and that the firm of which he was a special partner was or was about to become insolvent, those facts would not operate to vitiate the mortgage on which he borrowed the money to pay private debts in preference to those of the firm, because that instrument did not give a preference to existing debts forbidden by the statute; and therefore it was quite immaterial to show that Palmer had so meddled with the affairs of the copartnership as to make himself liable, under another provision of the statute, as a general partner; or that he knew of the actual or portending insolvency of the firm.

It was not a material error to exclude evidence tending to show either of those facts. In our view of the law, if proved, they would be ineffective, however clearly proven, and whatever force they might have against the creditors whose debts were preferred by payment of the money borrowed. The exceptions taken in the course of the trial to the rulings of the court, excluding the evidence offered, cannot therefore be regarded as affecting the correctness of the judgment.

The court found, as matters of fact, that the mortgage was executed to secure actual advances made upon its credit, and that it was not made to give preference to private debts within the meaning of the statute. These findings entitled the defendant to judgment.

The objection to the record of judgment and other proceedings in the foreclosure suit is of no value, because the admission of that evidence could not rightfully, in the view we have taken of the law, affect the result of the action. The record was, however, admissible to show that the mortgage was only enforced to the extent of the advances. It and the bond it secured were nominally for $70,000, and it might 'have been important to show for what amount it was enforced and claimed by the mortgagee.

We think the judgment should be affirmed, though we may not be able to concur in the reason assigned in the opinion of the court below.

Beady, J., concurred.

Present — Davis, P. J., Beady and Ingalls, JJ.

Judgment affirmed.


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    EDWARD D. JAMES, Appellant, v. GEORGE SHEA, Respondent.

      Dismissal of the -complaint for delay in prosecuting the action — when it should, be ordered — an appeal should be taken from the order and not from the judgment— Gode of Civil Procedure, see. 823 — General Pule No. 36.
    Where a judgment dismissing the complaint has been (entered upon an order directing its dismissal because oí the unreasonable delay of the plaintiff in prosecuting the action, the plaintiff, if he desires to review the action of the court, should appeal from the order and not from the judgment.
    In May, 1862, issue was joined in an action commenced upon a promissory note just as it was on the point of outlawing. ' An order for a commission with a . stay of proceedings until its return was obtained by the defendant. The commission was never returned and in 1875 the stay was vacated by consent, after which time the cause was placed on the calendar. In December, 1876, the plaintiff, at the defendant’s request, allowed the case to go over the term, and it was then marked as reserved generally. The defendant had not noticed the cause for trial, but his attorney had repeatedly requested the plaintiff to bring the cause to trial, and younger issues had been tried. On January 24, 1880, an order wa's made on the defendant’s-application dismissing the complaint.

      Held, that the court properly granted the motion made by the defendant to have the complaint dismissed upon the ground of the unreasonable delay of the plaintiff in prosecuting the action.
    Appeal from an order of January 24, 1880, made at a Special Term dismissing the complaint for want of prosecution, and an appeal from the judgment of dismissal subsequently entered on such order.

      Edward D. James, in person.

      A. J. Perry, for the respondent.
   Davis, P. J.:

The judgment at the time it was entered and at the time the appeal from it .was taken, was entirely regular. The_ respondent had a right to enter it upon the order of the Special Term. The appellant procured no stay of proceedings out chose to allow judgment to be entered and to appeal from it. His practice was irregular and ought not to' be sanctioned. ' The judgment will stand effective and regular until the order be reversed (if that result shall follow the appeal from the order). Even then the correct practice would be to move the court below to vacate the judgment on the ground of the reversal of the order on which it was based. There was no necessity of the expense and delay of an appeal from the judgment, which 'was regular and proper when entered, and that appeal should be dismissed even if the order be reversed. The court will not encourage unnecessary appeals in such cases.

As to the order, it was one resting in the sound discretion of the court. It is only when the discretion has been abused or improperly exercised under the provisions of the Code or of the rules of the courts that the appellate tribunal is required “ ex débito justicias to interfere.

In this case the action was commenced twenty years ago, upon a promissory note then just on the point of outlawing. Issue of fact was joined in May, 1862, and the answer set up facts which, if true as alleged, would constitute a perfect defense.

An order for a commission, with stay of proceedings till its return, was obtained by defendant. But the commission’ was never returned and .thirteen years elapsed before the plaintiff took any step to vacate the stay. It was vacated by consent in December, 1875. The cause has since been on the general calendar at Circuit. The defendant’s attorney frequently requested plaintiff to bring the cause to trial. Younger issues have been tried. -The plaintiff answers this by saying that when the cause was reached on the calendar in December, 1876, he let the cause go over on request of defendant’s attorney, and the cause was then marked “ reserved generally,” and could have been called up by defendant’s attorney on two days’ notice and placed on the day calendar; and that defendant’s attorney has never been willing to agree on any particular time for the trial.

The defendant, it would seem, has never noticed the cause for trial and could not, therefore, move for its dismissal at circuit.

Section 822 of the Code provides that, “where the plaintiff unreasonably neglects to proceed in the action against the defendant, * * * the court may, .in its discretion, upon the application, of the defendant, * * * dismiss the complaint * * * and render judgment accordingly.”

Rule 36 restores in this district the old common-law practice under which defendants were at liberty to move to dismiss the action “ at any time after younger issues shall have béen tried in their regular order.” A defendant is not, therefore (in the first district, at least), subject to the necessity of noticing the issues for trial and putting the cause on the calendar, bearing himself the expense of so doing and of preparing for trial and attending in readiness for trial, till the cause is reached and called. He may proceed (as oftentimes it will be greatly for his interest to do in order to save costs and expenses which possibly he will be unable to collect of his adversary), to move under the eight hundred and twenty-second section of the Code for general unreasonable neglect of plaintiff “ to proceed in the action,” or under Kule 36 for the specific neglect therein named.

This motion was on the ground of general unreasonable neglect. For thirteen years the plaintiff took no step in the case, although he knew the commission had not been returned. The stay was ■operative, it is true, but .its operation was the plaintiff’s fault, for he seems to have accepted it as an excuse for his own negligence. And, after it was formally vacated, the delay was again so unreasonable as to justify the belief that the policy of plaintiff -was Fabian .strategy, to await the death of all witnesses of the defense.

The court below seemed to think that the delay had been- “ unreasonable ” within the meaning of the Code, and we are not inclined to disturb its conclusion. There are in this district enough of íive actions affecting the present affairs of ligitants to afford abundant labor for the courts, without resurrecting cases which the plaintiffs have allowed to slumber in apparent death for nearly a generation of lives.

We are inclined, therefore, to affirm the order and to dismiss the appeal from the judgment, but, under all the circumstances, without ■costs.

Brady, J., concurred.

Present — Davis, P. J., Brady and Ingalls, JJ.

Order affirmed and appeal dismissed, without costs.


text:
    MAX HEURTEMATTE and JULES LECAUDEY, Respondents, v. FRANCIS MORRIS, Appellant.

      Bill of exchange — when the acceptor may defend on the ground that his acceptance was induced hy the fraud of the drawer.

    In an action against the acceptor of a hill of exchange he may show that he was induced to accept the bill hy the false and fraudulent representations of the drawer, provided no consideration was received hy him at the time of the acceptance and the holder of the hill has parted with nothing of value in reliance upon such acceptance.
    This defense of the acceptor is not affected by the fact that the plaintifE is a bona fide holder for value as against the drawer and the indorsers.
    Appeal from a judgment in favor of the plaintiffs, entered upon a verdict directed by the court.

      H. D. LLennm, for the appellant.

      Coudert Bros, and J. JV. Lewis, for the respondents.
   Davis, P. J.:

This action was brought upon the acceptance of a bill of exchange made by the defendant. The plaintiffs were partners doing business at Panama, in the United States of Columbia. One Christofel, of San Juan del Sud, owed the plaintiffs $1,000, and they drew upon' him for that amount, making the draft to the order of Halkett & Poillon, of Panama* and sent it to them for collection. Halkett & Poillon sent the draft for collection to one Ran Runnels, their agent at Rivas. Runnels collected the amount of the draft from Christofel in the currency of Columbia; and to remit the proceeds, after deducting the commission and exchange charged by Runnels, he, on the 18th of February, 1878, drew the bill in suit upon the defendant, payable to the order of Halkett & Poillon, who received, indorsed and delivered the same to the plaintiffs as and for the proceeds of their draft on Christofel. Afterwards, and on the twenty-sixth of the same month, the bill was accepted by the defendant, and subsequently at maturity was presented to him for payment, and payment was refused. The plaintiffs having proved these facts, rested. The defendant then offered to prove the facts alleged in Ms answer, wMcli are in substance that be made the acceptance without consideration, relying upon certain representations made to him by the drawer of the bill, Ran Runnels, which representations were falsé and fraudulent. The plaintiffs counsel objected to the evidence, and the court excluded the same, and directed a verdict for the amount of the bill of exchange.

The only question for determination upon this state of facts is, whether the plaintiffs are to be deemed bona fide holders of the acceptance for value. The bill was remitted to them by their correspondents, who had received the same from Ran Runnels, their •agent, as and for the proceeds of the draft drawn by plaintiffs upon Christofel. The plaintiffs were therefore undoubtedly bona Jtde holders for value of the bill, as against the indorsers and the drawer. But at the timé the bill came to their possession it had not been accepted' by the defendant. Some days .after receiving it, it was presented to the defendant, and by him accepted. No new consideration passed for the acceptance at the time it was made, nor does it appear that the plaintiffs at that time parted with anything of value in reliance upon the acceptance. In all practical aspects, they had virtually paid the drawer of the draft its value in money, oecause he had retained that sum belonging to them out of the proceeds of their draft upon Christofel. If the accejDtance of the defendant had at that time been upon the bill, there would be no question of their right, as bona fide holders, to enforce the acceptance against him, and he could not protect himself from liability by reason of any equities existing between himself .and Runnels. But that is not the case before us. The plaintiffs received the bill through their correspondents as unaccepted paper. If acceptance had been refused on presentation to the defendant, their right to pursue the drawer and indorser of the bill, or to collect the proceeds of the draft as an original indebtedness, would have been perfect. But the acceptance was anew contract between the plaintiffs and the defendant, based, of course, upon the supposition that the defendant was indebted to the drawer in the amount ■of the bill, or had sufficient money of the drawer in his hands to meet the same. If, in point of fact, that supposition was wholly unfounded and he was induced by misrepresentations of the drawer to make the acceptance, his liability, in the absence of all consideration for accepting tbe bill, is no greater than that which Runnels Lumself could have enforced, except ás between him and some bona fide holder for value. The plaintiffs did not occupy that position, they having parted with nothing of value for the acceptance itself. But presumably all the rights which they possessed at the time of the acceptance against the drawer and indorsers of the bill were in full vigor at the time and upon the defendant’s refusal to pay the same. (Lawrence v. Clark, 36 N. Y., 131.) We think the case fell within the rule laid down in The Farmers and Mechanics’ Bank v. The Empire Stone Dressing Company (5 Bosw., 290), and Moore v. Ryder (65 N. Y., 441), and, as we are unable to see how it can be distinguished from those cases, we think the judgment must be reversed and a new trial granted, with costs to abide the event.

Bjrady, J., concurred.

Present — Davis, P. J., Brady and Ingalls, JJ.

Judgment reversed, new trial ordered, costs to abide event.